Massachusetts Governor Meddles With Raw Milk Bill


The founding fathers saw the separation of powers among the legislative (making laws), executive (enforcing laws) and judicial(interpreting laws) branches as a bedrock of our constitutional republic, but what passes for the separation of powers under our current system of government has little resemblance to what our founding fathers intended, especially when a governor is directly introducing legislation.

On August 9 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 in Massachusetts; 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.

The summary to H.4884 reads:

    An act, a message from His Excellency the Governor returning with his disapproval of a certain section, and also with recommendations of amendments of certain sections contained in the engrossed Bill promoting climate change adaptation, environmental and natural resource protection, and investment in recreational assets and opportunity [see House, No. 4835]. August 9, 2018.

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 the substantive language in 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 353 dairy farms in Massachusetts; at the end of 2017, there were 135.4

Instead of helping Massachusetts dairy farmers the way he had a chance to, Governor Baker 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.

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[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

Photo by Navraj Narula, Staff of Daily Free Press, published 9 January 2015

STATE RAW MILK BILLS – 2018 UPDATE


There have been raw milk bills before the legislature in ten different states so far this current session. A bill has made it to the governor’s desk in Utah and there is legislation in at least a couple of other states that has a realistic chance of passing, including Louisiana which is one of seven states left where any raw milk sales or distribution is illegal. Bills before the legislatures include:

IOWA House File 2055 (HF 2055) would allow the unregulated sale of raw milk and raw milk products on-farm and through delivery. There is a labeling requirement that there be a statement on the container notifying consumers that the product has not been inspected and is not subject to public health regulations. Bills have also been introduced in the Iowa legislature that would legalize raw pet milk sales (HF 2057) and the distribution of raw milk through herdshares (HF 2056) but HF 2055 is the only raw milk bill the legislature has considered so far. On January 30 a subcommittee of the House Committee on Local Government recommended passage by a 2-1 vote; the bill is now before the full committee. Iowa is one of the remaining states that prohibits any raw milk distribution.

LOUISIANA companion bills, Senate Bill 188 (SB 188) and House Bill 437 (HB 437), have been introduced that would allow the on-farm sale of either cow milk or goat milk of an average of 500 gallons per month. No permit is required but producers are subject to inspection and must comply with milk testing, herd health, and sanitary standards as well as a labeling requirement that there be a warning that the raw milk may contain harmful bacteria. The bills are a reintroduction of Senate Bill 29 (SB 29) that nearly passed in 2016. SB 29 passed out of the Senate and was defeated in the House committee by one vote.

MASSACHUSETTS Senate Bill 442 (S.442) and House Bill 2938 (H.2938) are companion agricultural omnibus bills that include provisions which would officially legalize herdshare agreements and would allow the off-farm delivery of raw milk by licensed dairies. Under the bill, farmers with no more than twelve lactating cows, goats or combination of cows and goats can enter into herdshare agreements with those wanting to obtain raw milk. There must be a written contract that includes a statement that the raw milk is not pasteurized nor subject to inspection by the state Department of Health nor the Massachusetts Department of Agricultural Resources (MDAR). MDAR has power to issue rules on testing but cannot require testing more frequently than once every two months. The bills allow from a licensed raw milk farmer to deliver raw milk to a consumer with whom the farmer has a contractual relationship, including through the farmer’s agent and through a community supported agriculture (CSA) delivery system. The bill gives MDAR power to issue regulations governing delivery; the regulations must allow for non-mechanical refrigeration. The bills have passed out of the Joint Committee on Environment, Natural Resources and Agriculture and will likely next be assigned to the Senate Ways and Means Committee.

NEW JERSEY Assembly Bill 502 (A502) is the same bill that has been introduced the prior three legislative sessions, A502 allows for the on-farm sale of raw milk and raw milk products by a licensed dairy. Producers must comply with labeling, signage, herd health, and milk testing requirements. The bill also legalizes herdshare agreements and states that no permit is required for the distribution of milk through a herdshare contract. New Jersey is one of the remaining seven states that prohibits any raw milk distribution. A502 has been referred to the Assembly Agriculture and Natural Resources Committee.

TENNESSEE House Bill 2229 (HB 2229) and Senate Bill 2104 (SB 2104) would have allowed the unregulated direct sale from producer to consumers of all foods except meat, on the farm, at farmers markets and other venues. There were labeling and signage requirements but no licensing or inspection under the bills. The bills were both defeated in committee; under current law, the distribution of raw milk and raw milk products is legal through herdshare agreements. Herdshare programs have been thriving in the state.

UTAH Senate Bill 108 (SB 108) has passed through both the Senate and House and are on the desk of Governor Gary Herbet. SB 108 allows the delivery and sale of raw milk through a mechanically refrigerated mobile unit by licensed dairies. Currently only the on-farm sale of raw milk by license holders is legal unless the producer has a majority ownership interest in a retail store (only one of the state’s ten licensed dairies meets this qualification). SB 108 also allows for the unlicensed on-farm sale of up to 120 gallons per month by unlicensed dairies if the producer is in compliance with labeling, recordkeeping, milk testing, and milk cooling requirements. Producers wanting to sell under this exemption must notify the Utah Department of Agriculture and Food (UDAF) that they are doing so. UDAF has power under the bill to order a producer to stop selling raw milk if the producer’s dairy is linked to a foodborne illness. The department has the power to levy administrative fines against producers who have been linked to a foodborne illness outbreak.

VIRGINIA Senate Bill 962 (SB 962) and House Bill 825 (HB 825) would have officially legalized and regulated herdshare operations. State policy in Virginia has long been to leave the many herdshare programs existing in the state alone. The original versions of both bills would have criminalized the refusal of either farmers or consumers to turn over copies of their contracts to government agencies. Both bills stated it was illegal for anyone besides the party to the contract to receive raw milk; in other words, giving raw milk to family or guests would have been a crime. Criminal penalties for violations of the bill’s requirements were up to one year in jail and a $2,500 fine; every day the violation continued would be a separate offense. The bills also required that the herdshare contracts contain a clause that shareholders assumed joint liability if the herd or any milk produced by the heard was responsible for any injury or illness. SB 962 was in Senate committee and shortly afterwards was stricken in the House committee.

For further updates on the progress of raw milk legislation, go to the bill tracking page at realmilk.com.

Massachusetts Legislator Wants to Loosen Raw Milk Restrictions

Raw milk sales are currently legal in the state of Massachusetts via cow sharing. However, there are restrictions in place – requiring consumers to pick up the milk on the farm and mandated monthly milk testing, for example – that one Massachusetts legislator wants to loosen.

State Representative Smitty Pignatelli of Lenox is sponsoring a bill that would exempt small dairy farms from some of these rules, and he is hopeful that the bill will gain support and move forward in Fall 2015.

Massachusetts Animal Health Director Michael Cahill defends the guidelines that are in place, saying they are for the consumer’s benefit: on-site pickup allows consumers to see the health of the cows for themselves and monthly milk testing protects consumer health.

The Northeast Organic Farming Association (NOFA) Massachusetts published a notice about the bill and is asking people to contact legislators in support of the new, less restrictive laws.

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Massachusetts Family Farm Since 1732 Threatened by New Proposed Regulations on Raw Milk

The town of Foxborough, MA is considering new regulations that would limit the bacteria count of raw milk to a more stringent level than current state regulation. The state does allow “local boards of health to ‘adopt bacterial standards for milk which are numerically less but not greater than state standards,’” but one family-owned farm is fighting back.

Lawton’s Family Farm, which milks 24 cows and sells raw milk and cheeses, believes the proposed regulations are unnecessary and could put them out of business – which would be a tragedy, because Lawton’s has been passed down through generations since 1732. Lawton’s is a Massachusetts Century Farm (recognized by the MA Farm Bureau for remaining in the same family for 100 years or more and still being farmed) and a Massachusetts Dairy Farm of Distinction (recognized by the MA Farm Bureau for adding scenic beauty to the state).

Lawton’s Family Farm is asking for help from their customers and other concerned citizens who believe in consumer choice:

“Our health agent is very anti-raw milk and vows to get rid of your choice by making these regulations so extreme as to be difficult to maintain and sell. Some of the rules would allow them to collect your names for a ‘recall’ purpose but more importantly the ability for them to stop milk sales for up to a month at a time. Please take the time to send emails…Please be sure to send us copies as we do not trust our agent to pass them along to her board members.”

Email:

Pauline Clifford, town Health Agent: pclifford@town.foxborough.ma.us
Cc: oake_knoll_ayrshires@lawtonsfamilyfarm.com

For those in the Foxborough area, there will be a public hearing on Monday, November 25, 2013. Concerned residents who wish to speak or to lend support with their presence are asked to attend.

Monday, November 25, 2013 7:45pm

Public Safety Building, McGinty Room

8 Chestnut Street Foxboro, MA

The proposed regulations can be read in full here.

The realmilk.com blog is a nutrition education project of the Weston A. Price Foundation. If you have a real milk story to tell, please contact us by email: press (at) westonaprice (dot) org.