By Pete Kennedy, Esq.

Michigan–Bills to Legalize Raw Milk Sales

In 1948, Michigan became the first state to require mandatory pasteurization laws for all raw milk sold to consumers. Since that time, as far as is known, the legislature has not come close to reversing that freedom-robbing mandate and legalizing raw milk sales in the state. That could be changing. A trio of bills to legalize the sale of raw milk and raw milk products has been introduced in the legislature. It looks like the bills—House Bill 5217 (HB 5217), House Bill 5218 (HB 5218), and House Bill 5219 (HB 5219)— have some traction. Each of the
bills has thirty-seven cosponsors. All three bills have been referred to the House Committee on Government Operations.

Currently, raw milk distributed through herdshare operations is legal by written policy in the state; the Michigan Department of Agriculture and Rural Development (MDARD) has stated that it won’t enforce the mandatory pasteurization law for the distribution of fluid raw milk through a written herdshare agreement. In issuing the written policy in 2013, MDARD adopted the recommendations in Report of the Michigan Fresh Unprocessed Whole Milk Workgroup (for sale at WAPF), a report worked on by people from MDARD, the dairy industry, academia, shareholder dairies and raw milk consumers. MDARD limited the policy to fluid raw milk and maintained the ban on other raw dairy products, except for raw cheese aged sixty days (which, unlike the herdshare operation, required licensing and inspection). In spite of a subsequent court ruling holding that a herdshare dairy’s distribution of raw butter, raw cream and other dairy products to shareholders did not violate either the state dairy laws or Food Code, the department has still maintained that distribution is limited to raw milk despite the legal precedent against MDARD’s stance.

The three bills amend the Grade A Milk Law of 2001, the Manufacturing Milk Law of 2001, and the Food Law of 2000. Michigan legislative rules require a separate bill for amendment of each law. All three bills must pass for raw milk sales to be legal in the state.

The bills collectively legalize unlicensed sales by “direct farm-to-consumer producers,” or the producer’s “designated agent,” if the producer is in compliance with labeling and testing requirements for the raw milk or raw milk product sold. Sales under the bills must be direct-to-consumer only and can take place at farmers markets, farm stands, private food clubs, buyers clubs or cooperative distribution hubs; sales at retail stores are prohibited. Producers selling raw milk and raw milk products must file a notice with MDARD not less than ninety days before starting sales.

So far, Arkansas is the only state with a statute waiving liability for raw milk producers. HB 5219 creates a partial waiver of liability. That bill provides, “A member of the private food club shall sign a waiver that states the member understands and assumes the health risks of acquiring food outside the traditional commercial framework.” For other transactions, HB 5219 requires that the producer or designated agent provide the final consumer with a waiver stating, among other things, that “the raw dairy product is not regulated ; a statement that the consumer accepts the risk of consuming the raw dairy product; [and] an affirmation that the final consumer is making an informed, voluntary purchase.” The consumer is not required to sign any waiver. In foodborne illness lawsuits, courts do not favor waivers of liability (if they are not codified in statute); with the strong language favoring waiver in HB 5219, it will be interesting to see what happens if the bill becomes law.

A challenge for the bills’ proponents is that the Michigan legislature has little or no history of passing any kind of food freedom legislation. The legislature, unlike most legislatures, meets year-round; for alternate-year-meeting legislatures in states like Massachusetts, New Jersey and New York, there is also little track record of passing local food legislation. Traditionally, in Michigan, there has been a strong alliance between leadership in the legislature and agribusiness, which does what it can to stop any local food initiative from getting traction. Still, with a slowdown to the booming demand for raw milk nowhere in sight, now is a good time to end the prohibition on raw milk sales in Michigan.

Ohio–House Bill 406

A bill that has received considerable media attention is Ohio House Bill 406 (HB 406), the Farm-to-Consumer Access to Raw Milk Act, a bill that would legalize the licensed sale of raw milk from producers direct to consumers on the farm and at registered farmers markets. Currently, the distribution of raw milk only through herdshare agreements is allowed in Ohio via a state policy that has been in place since 2007.

HB 406 calls for heavy regulation of raw milk producers. It mandates that the Secretary of Agriculture “adopt regulations governing the sanitary production, storage, transportation, manufacturing, handling, sampling, testing, examination, and sale of raw milk to the ultimate consumer and for animal feed.” The rules must include a requirement that a raw milk producer “enroll in a quality milk production service program.”

The bill prohibits any sales unless the customer signs a liability waiver developed by the Ohio Department of Agriculture (ODA). HB 406 calls for the waiver to contain language acknowledging the risks of consuming raw milk.

Under Ohio’s current herdshare policy, raw milk dairies have been pretty much left alone; there have been few, if any, enforcement actions against herdshare operations. The question is why would any herdshare farmer want to get a license to sell raw milk, with all the requirements ODA will be mandating under its broad rule-making power HB 406 and with the high cost of compliance with HB 406 regulations.

HB 406 has received considerable media attention, but any favorable publicity the bill receives means nothing in the face of the regulatory obstacles before raw milk producers. In recent years, the raw milk bills that have passed in states like Arkansas, Iowa, Louisiana, North Dakota and West Virginia have all called for little or no regulation of raw milk producers with no license requirement. If Ohio were to legalize raw milk sales, the legislature there should pass something similar; otherwise, the herdshare dairies will continue on with their same operations.