By Pete Kennedy, Esq.
On August 9 Massachusetts Governor Charles Baker amended a provision in an appropriations bill that would have expanded raw milk access for consumers and better enabled raw milk producers to make a living. Currently only the licensed on-farm sale of raw milk is legal; House Bill 4835 (H.4835) would have allowed licensed raw milk farmers to:
- Deliver raw milk directly to a consumer, off-site from the farm if the raw milk farmer has a direct contractual relationship with the consumer;
- Contract with a third party for the delivery of raw milk off the farm to a consumer;
- Deliver raw milk through a CSA (community-supported agriculture) delivery system;
- Make deliveries to the consumer’s residence or to a pre-established receiving site so long as the site was not in a “retail setting.” Raw milk producers, however, could make deliveries in a retail setting through a CSA delivery system provided that the raw milk met the stipulation that it “shall be kept separate from retail items for sale and shall not be accessible to the public.”
- Sell raw milk from the farmer’s farm stand even if the stand is “not contiguous” to the farmer’s raw milk dairy. Current law requires the farm stand to be on the same property where the raw milk dairy is located.
H.4835 had a labeling requirement for raw milk being sold or delivered to consumers off-farm and the bill gave the state department of agricultural resources and the state Department of Public Health joint responsibility to issue regulations governing the handling, packaging, storage and testing and transportation of raw milk.1
The amendment Governor Baker sent back to the legislature for consideration as House Bill 4884 (H.4884) mentioned none of the benefits of H.4835 except for the sale of raw milk at a farm stand off-site from the dairy farm.
H.4884 states, in part, that “the commissioner of public health, shall, … adopt and promulgate rules and regulations to reduce the risk of milk-borne illness associated with the consumption of unpasteurized milk that is sold off-site of the farm at which such milk was produced. Such rules and regulations may include, but shall not be limited to, the sanitary and operational standards for the transportation, receiving, handling, storage, processing, packaging, labeling and sale of milk intended for human consumption prior to pasteurization. … Such regulations shall allow the sale of milk intended for human consumption prior to pasteurization at a farm stand owned or operated by the producer of said milk that is not on the site of the farm at which the milk was produced.”
Given the bias of the public health department against raw milk, it’s unlikely that any of the other benefits provided in H.4835 would be included in a regulation. H.4884 also requires raw milk producers selling at an off-site farm stand to obtain an additional license from the Department of Public Health.2
Governor Baker based his authority to amend the raw milk section of H.4835 on a provision in the Massachusetts Constitution that states, in part, “the governor may disapprove or reduce items or parts of items in any bill appropriating money…As to each item disapproved or reduced, he shall transmit to the house in which the bill originated his reason for such disapproval or reduction, and the procedure shall then be the same as in the case of a bill disapproved as a whole.”3
There is nothing in the state constitution that says that the governor can amend a bill, but the way the executive branch of government has gotten out of control these days at both the federal and state levels in exceeding its powers with little resistance from either the legislative or judicial branch, there’s little reason to believe Governor Baker won’t get away with his violation of the Massachusetts Constitution.
Even if H.4884 is lawful, it’s a poor decision from a policy standpoint. The state’s licensed raw milk producers have an excellent track record of safety with few, if any, foodborne illness outbreaks attributed to the consumption of raw milk in Massachusetts. H.4835 was a way to help raw milk producers—at little or no risk to the public-—which is especially important given the current crisis the dairy industry is in today. In 1997 there were three hundred fifty-three dairy farms in Massachusetts; at the end of 2017, there were one hundred thirty-five.4
Instead of helping Massachusetts dairy farmers the way he had a chance to, Governor Bake bought into the fear-mongering on the “dangers” of raw milk fed him by his Department of Public Health. The nanny administrative state marches on.
H.4884 has been referred to the House Ways and Means Committee.
1. Massachusetts House Bill H.4835, accessible at https://malegislature.gov/Bills/190/H4835
2. Massachusetts House Bill H.4884, accessible at https://malegislature.gov/Bills/190/H4884
3. Massachusetts Constitution, Article LXIII, Section 5.
4. Thomas Farragher, “The demise of a Massachusetts dairy farm”, The Boston Globe, 23 January 2018. Last viewed 9/10/18 at https://www.bostonglobe.com/metro/2018/01/23/the-demise-massachusetts-dairy-farm/G0tyAng0VJ9Ovy8nVvjrZK/story.html
This article first appeared in the Fall 2018 issue of Wise Traditions in Food, Farming, and the Healing Arts, the Quarterly Journal of the Weston A. Price Foundation.
About the Author
Pete Kennedy is a Florida attorney who has worked on issues governing raw milk production and distribution since 2004. He compiled a summary of raw milk laws in each of the fifty states and is currently a consultant for WAPF on, among other things, policies and laws regarding raw milk. Pete was a founding board member of the Farm-to-Consumer Legal Defense Fund (FTCLDF) and served as vice president and then president for many years. He has consulted on and drafted raw milk, cottage foods, and food sovereignty legislation; drafted and reviewed herdshare agreements; worked on embargo, seizure, and recall cases involving raw dairy products; worked on foodborne illness outbreaks attributed to raw milk consumption; handled issues involving on-farm slaughter, custom meat, and poultry processing as well as problems with zoning and local ordinances.