By Pete Kennedy, Esq.

National–Bird Flu Propaganda against Raw Milk Not Working

Since March 25 when avian influenza was “confirmed” in U.S. cattle for the first time, government agencies and the media have unleashed a nonstop barrage of propaganda against raw milk, warning people not to drink raw milk because it may contain bird flu which may make them sick. The media have engaged in round-the-clock fearmongering to scare people into stopping their consumption of raw milk. So far, their campaign is not working.

A May 14th story on the Public Broadcasting System (PBS) website reported on just how big a failure the campaign has been. The article, titled “Raw Milk Sales Spike Despite CDCʼs Warnings of Risk Associated with Bird Flu,” reported—according to market research firm NielsenIQ—that since March 25th, weekly sales of raw cowʼs milk had gone up anywhere from 21 percent to as much as 65 percent compared with the same period a year ago.1

Mark McAfee—the owner of Raw Farm, the largest raw milk dairy in the U.S.—told PBS, “People are seeking raw milk like crazy. Anything that the FDA tells our customers to do, they do the opposite.”1

Sally Fallon Morell, president of the Weston A. Price Foundation (WAPF), estimates there are now around twenty million raw milk drinkers in the U.S. The warnings from FDA, CDC and other government agencies about the dangers of bird flu in raw milk have considerably increased what was already a booming demand for the product.

1. Alessio, JoNel. (2024, May 14). Raw Milk Sales Spike Despite CDCʼs Warnings of Risk Associated with Bird Flu. PBS News Hour. https://www.pbs.org/newshour/health/raw-milk-sales-spike-despite-cdcs-warnings-of-risk-associated-with-bird-flu

West Virginia–Raw Milk Retail Sales Now Legal

On March 9, House Bill 4911 (HB 4911) became law; the bill provides, in part, that “raw milk may be sold by a seller in West Virginia to a consumer in West Virginia.” The new law went into effect June 7th.

The bill legalizes the sale of raw milk in retail stores; there is a labeling requirement that includes the warning statement, “Consuming unpasteurized raw milk may increase your risk of foodborne illness, especially for children, elderly, immunocompromise individuals, and persons with certain medical conditions.”

Under HB 4911, the Commissioner of Agriculture may issue regulations “in compliance with raw milk dairy industry standards.” HB 4911 initially had a clause providing that producers werenʼt liable for illness attributed to milk consumption unless they intentionally contaminated the milk, but a Senate amendment to the bill cut out that provision. Courts donʼt favor liability waivers for foodborne illness.

A decade ago, West Virginia had the most strict raw milk laws in the country, banning sales both for human consumption and for pet consumption as well as prohibiting herdshare agreements. In 2016, the state legislature passed a bill legalizing herdshares, but that new law never took hold with raw milk producers; the law had costly testing requirements and also required farmers to file copies of each herdshare contract they had with the Commissioner of Agriculture.

HB 4911 passed through the House and Senate by big margins and became law when Governor Jim Justice did not take action on the bill (state law requires the governor to veto the bill within fifteen days from the time it reaches his desk).

Congratulations to the billʼs lead sponsor, Delegate Michael Hornby (R) and West Virginia raw milk producers and consumers. Soon the Real Milk Legal Map will reflect this change for West Virginia.

Pennsylvania–Proposed Regulations to Legalize Raw Butter Sales

On June 15, the Pennsylvania Department of Agriculture (PDA) issued proposed regulations amending the state dairy code, including legalizing sales of raw butter by permitted dairies. Under current law, the only raw dairy products permitted farmers can sell are milk and cheese (aged 60 days).

For the permitted raw dairies, the proposed regulations are a mixed bag. They contain a clause that would mandate dairy producers to comply with the FDA Food Safety Modernization Actʼs (FSMAʼs) onerous food safety plan requirements for food processing plants. Under federal law, there is no food safety plan requirement if either a producerʼs sales are under one million dollars or more than half of the producerʼs gross revenue is from sales that are direct-to-consumer.

For the stateʼs unpermitted raw milk farmers, there is an amendment in the proposed regulations that was intended to strengthen PDAʼs claim of jurisdiction over their dairy operations. Current regulation prohibits the sale of raw milk by unpermitted dairy farms; an amendment in the proposed regulation expands on the current definition of the term “sale,” stating that term “includes selling, exchanging, and delivering to a consumer who is a member of a ʻbuyers club,ʼ cow herdshare agreement or other type of membership purchasing group.”

Itʼs estimated that the proposed rules will go into effect in June 2025. The public will have an opportunity to comment on and attempt to amend the rules this summer.

Oregon–CAFO Requirements for Micro Dairies

One of the more original ways to shut down raw milk dairies ended on March 21st when the Oregon Department of Agriculture (ODA) withdrew its policy to require a small dairy to obtain a Confined Animal Feeding Operation (CAFO) permit. In Oregon on-farm sales of raw milk are legal as long as the dairy does not have more than two lactating cows, nine lactating goats or nine lactating sheep;¹ the application of the CAFO permit rule would have required these dairies “to install expensive drainage systems, put in wastewater holding tanks, keep daily records and pay annual fees starting at $125, on top of a $100 application fee—or face fines up to $10,000 if they didnʼt comply.”²

Oregon regulation defines CAFOs “as the concentrated feeding or holding of animals or poultry, including. . .dairy confinement areas. . . where the surface has been prepared with concrete, rock or fibrous material to support animals in wet weather.”³ In 2023 ODA changed its interpretation of that definition to apply it to small dairies. The drivers for the new interpretation were dairy industry lobbyists who complained that the small dairies had “an unfair competitive advantage over bigger dairy farms that had to follow state regulations and pay annual fees.”²

As raw milk farmer Christine Anderson explained, even if a couple cows were on pasture for most of the day and only brought indoors to a barn for milking for fifteen minutes, once the cows walk on the concrete floor the farm meets the definition of a CAFO.²

On January 24, the Institute for Justice (IJ) on behalf of Anderson and three other raw milk farmers filed a complaint in federal court arguing that the CAFO permit requirement should not apply to small farms since they conduct a completely different business than those operations the definition has traditionally applied to.⁴

Despite ODAʼs withdrawal of its policy, IJʼs lawsuit against the department will continue in federal court. Bobbi Taylor, an attorney for IJ, said that in ODAʼs press release on the withdrawal, “Theyʼve [ODA] stopped short of saying that they would never enforce this policy against small farms. . . or disclaiming that they had the authority to do so in the first place, which is what we’re challenging in the lawsuit. . . . So thereʼs a fight still to be had and weʼre gonna continue to have that fight.”²

1. Oregon revised statute 621.012(2). https://oregon.public.law/statutes/ors_621.012

2. Figueroa, Alejandro. (2024, March 25). Oregon agriculture department reverses burdensome requirement on small dairy farms. OPB News. https://www.opb.org/article/2024/03/25/oregon-department-of-agriculturewithdraws-requirements/

3. Oregon Department of Agriculture. CAFOs in Oregon – Frequently Asked Questions. https://www.oregon.gov/oda/shared/Documents/Publications/NaturalResources/CAFOFAQs.pdf

4. Wilk, Nathan. (2024, January 31). A group of small dairy farmers sues Oregon over new regulations they see as too burdensome. KLCC. https://www.klcc.org/economy-business/2024-01-31/small-dairy-farmers-sue-oregon-government-over-new-regulations

Louisiana–Raw Pet Milk Bill Passed

On June 4, House Bill 467 (HB 467) went to Governor Jeff Landryʼs desk; if he takes no action by June 24, the bill would become law, allowing the sale of raw pet milk by dairies that register with the state Department of Agriculture and Forestry (DAF) and making Louisiana the 47th state to legalize the sale or distribution of raw milk.

The sponsor for the bill was Representative Kimberly Landry Coates from the stateʼs 73rd District, Coates skillfully navigated opposition from DAF and the Louisiana Department of Health and Hospitals (DHH) in getting the bill to the governorʼs desk. The original version of the bill provided that licensed dairies could sell up to five hundred gallons of raw milk a month for human consumption; wanting a fallback, Coates proposed amendments on raw pet milk sales to HB 467 in a House committee hearing, which were adopted. Shortly after a Senate committee hearing on HB 467 (the bill passed out of both the House committee and House floor unanimously), DHH tried to kill the legislation by attaching a fiscal note of $900,000 to the bill. A fiscal note is an estimate of what additional expenses the government will incur if a bill passes into law; DHHʼs inflated figure was designed to convince legislators that the bill was not worth passing with the expenses that the department would have incurred by investigating all the foodborne illnesses raw milk consumption supposedly would cause.

Rep. Kim Coates countered DHH by submitting another amendment removing raw milk sales for human consumption from HB 467; this took DHH and the fiscal note out of the picture since DHH does not have jurisdiction over pet food. When Agriculture Commissioner Mike Strain indicated DAF no longer opposed the bill, HB 467 passed out of the legislature easily.

Coates had seen the devastation the dairy industry had suffered in her own district and knew legal raw milk sales were the way to stop the loss of dairies. She testified at the House committee hearing on the bill that in 1940, Louisiana had 105,000 dairies and as late as 1987 there were still 1,500 dairies in operation; today that number stands around fifty. Passage of HB 467 gives the state a chance to reverse the decline in dairies.

Coates had widespread support for HB 467. There was an overflow crowd at the Senate hearing before the committee on Agriculture, Forestry, Aquaculture, and Rural Development; committee chair Stewart Cathey received over five hundred emails on the bill.

Congratulations to Rep. Coates for getting the bill into law and to others helping with its passage, including veterinarian/dairy farmer Dr. Hue Karreman, microbiologist Peg Coleman, (both supported by the Weston A. Price Foundation and dairy farmer Miles Sinagra, who all provided testimony before the committees.