West Virginia Emergency Herdshare Rules

By Pete Kennedy, Esq.

West Virginia Commissioner of Agriculture Walt Helmick filed final emergency rules governing herdshare operators on August 26. The emergency regulations are in effect for fifteen months at which point the state department of agriculture will have to go through the usual rulemaking process if it wants to issue new rules. The rules are a substantial improvement over the regulations Helmick originally published in June which were so burdensome that they amounted to a de facto ban on herdshares. Thanks to strong opposition from raw milk producers and consumers, the final rules have improved to the point where herdshare farmers actually have a chance to make a living.

The proposed regulations include the following requirements:

  • A signed herdshare agreement on a form distributed by the Commissioner of Agriculture, which must be on file with the commissioner; The agreement must include an acknowledgement by the herdshare owner agreeing to release the farmer of liability for the inherent dangers of consuming raw milk. The farmer is not released of liability “for deliberate or negligent acts unrelated to consuming raw milk.”
  • Annual tests for brucellosis and tuberculosis; producers pay the cost of testing. Farmers are required to submit a Herd Health plan to the state veterinarian including expected testing dates for brucellosis and TB;
  • Maintain official identification of animals involved in the herdshare program as required by federal law;
  • Initial and yearly testing for coliform, standard plate count (SSPC), and somatic cell count (SCC) along with testing for the following pathogens E.coli O157:H7, Listeria monocytogenes, salmonella and campylobacter. The state pays for the testing; under the proposed emergency rule there were monthly testing requirements and the producer was responsible for paying all costs.

Onerous requirements in the proposed rule such as a food safety plan [Risk Analysis and Management Program (RAMPO)] and a “written recall and critical incident management plan” have been scrapped. The influence that the West Virginia Department of Health and Human Resources had in the proposed rule, with its attempts to prevent herdshare operations from getting off the ground, looks to have been absent in the final rule. There can be further improvement in the regulations, but this is a good start for shareholder dairies in the state.

This article first appeared in the Fall 2016 issue of Wise Traditions, the quarterly journal of the Weston A. Price Foundation.


Pete Kennedy

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.