Virginia Ag Department Clarifies Policy on Herdshares


After two consecutive legislative sessions in which unsuccessful efforts were made that would have either banned or severely restricted herd share agreements, the Virginia Department of Agriculture and Consumer Services (VDACS) has clarified its policy on herd shares. In an email to the Farm-to-Consumer Legal Defense Fund (FTCLDF), a VDACS official stated, “The agency has currently taken a hands off approach to herd shares as long as there is a legitimate contractual relationship conveying ownership between the consuming individual and the animal/herd. Value added products such as yogurt, etc. (again in the context of a contractual relationship between owner and consumer) are still on the table and I’m not sure where we are going with that but the agency is not taking any action regarding those types of products at this time.”1

Herd share agreements are private contractual arrangements in which someone purchases an ownership interest in a dairy animal (or herd of dairy animals) and pays a fee to a farmer for boarding, caring for and milking the animal(s). The owner has the property right to obtain raw milk from the animal(s). It’s legal to purchase ownership in a dairy animal and it’s legal to obtain milk from a dairy animal you co-own; currently, there is nothing in the Virginia Code on herd shares. Herd share programs have been thriving in Virginia for many years.

In 2017 an amendment to a food freedom bill was introduced that would have banned herd shares; the inducement for the ban was the legalization of the regulated on-farm sale of raw milk. The Virginia Independent Consumers and Farmers Association (VICFA) and others–including the bill’s original sponsor, Nick Freitas–was successful in killing the legislation.

In 2018 opponents of herd shares–such as Virginia Farm Bureau, Virginia Agribusiness Council, and the Virginia State Dairymen’s Association–took a different tact; supporting the introduction of legislation in the Senate (SB 962) and the House of Delegates (HB 825) that would have officially legalized herd shares while attempting to intimidate both consumers and farmers from either entering into or continuing on with herd share agreements. Both bills required that shareholders assume joint liability if the herd or any milk produced by the herd was responsible for injury or illness; the way both bills read, giving raw milk to family or guests would be a crime. Both bills provided that violating any of the requirements in them would be first degree misdemeanors with criminal penalties of up to one year in jail and $2,500 in fines; everyday the violation continued would be a separate offense. Strong grassroots mobilization led by VICFA with help from the Weston A. Price Foundation (WAPF), FTCLDF and other organizations, carried the day; both bills died in committee.2

VDACS has long had a hands-off policy towards regulating herd share agreements but there have been reports of agency inspectors telling farmers that herd share agreements are illegal. Having a statement in writing from VDACS should help increase the sizable number of herd share programs in the state that already exist. The position of VICFA and its members has always been that the state has no jurisdiction over property rights in dairy livestock acquired through private contract, but there are others who were more hesitant to enter into herd share agreements without something in writing from VDACS on herd shares; they now have it.

In the past VDACS has been reluctant to acknowledge the legality of value-added products distributed through a herd share agreement, but recent precedent in other states shows the wisdom of VDACS current hands-off policy towards the distribution of raw dairy products other than milk.

In 2016 a Michigan court found a herd share operation not guilty of contempt for distributing butter and cream, among other product, to its shareholders; there was an injunction against the operation prohibiting it from violating Michigan’s dairy laws. The Michigan Department of Agriculture and Rural Development (MDARD) had adopted a written policy allowing only the distribution of fluid raw milk through herd share agreements; in spite of the policy and plenty of evidence showing that other raw dairy was distributed through the herd share, the judge ruled that MDARD had not made its case that there were any violations of the state dairy laws. The case turned in favor of the herd share operation when one of its shareholders, Mike Lobsinger, successfully intervened as a party to the contempt proceeding. One of the arguments made by Lobsinger’s attorney was that, with the raw milk being his property, it was none of MDARD’s business if he had that milk processed into cream.3,4

In 2012 the Office of the Tennessee Attorney General issued an opinion finding that an “independent or partial owner of any hoofed mammal” may use a dairy product made from the milk produced by such animal for the owner’s personal consumption or other personal use.”5 Tennessee has a herd share statute recognizing that anyone who has an ownership interest in a dairy animal can use “the milk from such animal for the owner’s personal consumption or other personal use.”6 When the Tennessee Department of Agriculture claimed that the statute only allowed the distribution of raw milk and no other dairy product, State Senator Frank Niceley, the sponsor of the herd share bill that passed into law in Tennessee, sought the attorney general opinion.

Herd share programs are at the heart of Virginia’s local food system; the written statement of policy from VDACS should only strengthen that. Hopefully, it will help convince herd share opponents not to introduce legislation again in the next legislative session; if they do, the grassroots will be there once more to contest them.

[1] Email dated August 7, 2018
[2] Pete Kennedy, “Victory in Virginia – Bills Threatening Herd Shares Now Dead”, RealMilk.com, 6 February 2018. Last viewed 9/12/18 at https://www.realmilk.com/victory-virginia-bills-threatening-herd-shares-now-dead/
[3] Pete Kennedy, “Wild Day in Michigan: A Court Victory and A Raid”, Farm-to-Consumer Legal Defense Fund website, 13 December 2016. Last viewed 9/12/18 at https://www.farmtoconsumer.org/blog/2016/12/13/wild-day-michigan-court-victory-raid/
[4] James S. Jamo, “Opinion and Order”, MDARD v Hill High Dairy, LLC et al, File No. 15-574-CZ, 8 December 2016. [view PDF]
[5] Robert E. Cooper, Jr., “Owner’s Use of Milk and Licensing of the Sale of Eggs”, State of Tennessee Attorney General Office, Opinion No. 12-04, 13 January 2012
[6] Tennessee Statute 53-3-119

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.

Victory in Virginia – Bills Threatening Herd Shares Now Dead

Joel Salatin said, “If this is not reminiscent of David and Goliath, I don’t know what is”, referring to the defeat of two bills posing a major threat to the future of herdshare programs in Virginia. Virginia Farm Bureau, Virginia Agribusiness Council, and the Virginia State Dairymen’s Association all supported the legislation but grassroots mobilization against the bills lead by the Virginia Independent Consumers and Farmers Association (VICFA) won out with an assist from members of the Weston A. Price Foundation (WAPF) and the Farm-to-Consumer Legal Defense Fund (FTCLDF) and other food freedom advocates.

Herdshare agreements are private contractual arrangements in which someone purchases an ownership interest in a dairy animal (or herd of dairy animals) and pays a fee to a farmer for boarding, caring for and milking the animal(s). The owner has the property right to obtain raw milk from the animal(s). It’s legal to purchase ownership in a dairy animal and it’s legal to obtain milk from a dairy animal you co-own. Herdshare programs have been flourishing in Virginia for many years.

Last month legislators carrying out the agenda of industrial agriculture introduced House Bill 825 and Senate Bill 962 in the Virginia legislature. While the bills officially legalized herdshares [currently there is nothing in the Virginia Code on herdshares], they were an attempt to intimidate both consumers and farmers from either entering into or continuing on with herdshare agreements. Each bill provided that violating any of its requirements would be first degree misdemeanors with criminal penalties of up to one year in jail and $2,500 in fines; every day the violation continued would be a separate offense. Both farmers and consumers could have been found guilty of a crime for not turning over copies of their contracts to government agencies. Both bills stated it was illegal for anyone besides the party to the heredshare contract to receive raw milk; in other words, giving raw milk to family or guests would be a crime according to the wording in the bills.

To scare consumers away from signing contracts, there was a requirement in both bills that the herdshare agreements contain a clause stating that shareholders assumed joint liability if the herd or any milk produced by the herd was responsible for any injury or illness. HB 825 and SB 962 each required there be a label on all raw milk containers with a consumer advisory warning about the dangers of consuming raw animal foods. Why would shareholders need a label on their own property? Why should they be forced to trash their own property with an advisory?

Reaction to the bills’ filings was swift. Farmers and consumers bombarded legislators with phone calls, emails and in-person visits to the capitol. VICFA kept people apprised of the bills’ status and mobilized the local food community to attend the hearings on the bills. Herdshare farmers like Dwayne McIntyre of Goshen Homestead, Jacques and Kim Fuhrmann of Our Fathers Farm, the Wilkes family of Honey Brook Farm, Tim and Joy Alexander of Avery’s Branch Farm, and Scott Wilson of Full Quiver Farm all made a difference in building opposition to the legislation.

On February 1 the Senate Committee on Agriculture, Conservation and Natural Resources held a hearing on SB 962; around 100 opponents of the bill packed the hearing room. Senator Mark Obenshain, seeing the writing on the wall with the opposition to the bill, took out a number of SB 962’s more onerous provisions but opponents weren’t buying the revised version of the bill. Their message throughout the testimony opposing SB 962 was clear: no regulation, period!

VICFA member and herdshare pioneer, Christine Solem, began the opponents’ testimony by angrily warning the committee that she would “fight this all the way.” Twice, Solem took herdshare lawsuits to the Virginia Supreme Court in the 1980s with the court implicitly recognizing that herdshare agreements were legal.

Mark Wilkes of Honey Brook Farm commented in his testimony that the bill “was a solution in search of a problem.” VICFA president Anne Buteau backed up that statement in her testimony by pointing out to the committee that, in the 30 years of herdshares operating in Virginia, government officials investigating the one foodborne illness outbreak attributed to raw milk distributed through a herdshare did not go public with the information because, as they stated, “the nature of the herd-share programs are such that we were confident that we would effectively reach those who were truly at risk for illness.”

Herdshares are closed-loop arrangements with a high level of traceability. Virginia government officials have all the authority they need under existing law to conduct an effective investigation if there is a suspicion of foodborne illness.

Senator Richard Black agreed with Wilkes and Buteau, firing up the crowd when he remarked, “I don’t know what problem it’s addressing. People life a free life in rural areas and don’t want government peeking over their back and telling them what to do.”

Once the testimony was over, the committee voted 8 to 7 not to report the bill out of committee. Delegate Barry Knight, the sponsor of HB 825, knowing how difficult it was going to be to pass a more burdensome bill than SB 962 (HB 825, unlike the Senate bill, gave government broad rule-making power) moved to withdraw his bill; on February 5, a House Agriculture subcommittee struck the bill by an 8-0 vote.

VICFA’s mission “is to promote and preserve unregulated direct farmer-to-consumer trade that fosters availability of locally grown or home-produced food products.” VICFA co-founder Salatin, Solem and other VICFA members such as the late Katherine Russell, helped create a “don’t tread on me” culture that is present throughout Virginia when it comes to farmer-to-consumer unregulated commerce, particularly with herdshares. Those in the local food movement there don’t ask the government for permission to exercise their rights and they want the government to leave them alone.

VICFA operates on a shoe-string budget but members, like Buteau, Solem, past president Lois Smith, and Suzi Croes, will spend the time it takes to protect herdshares–the crown jewel of the local food system in Virginia. They continue to be effective in keeping herdshares away from any regulation; in 2017 VICFA helped kill an attempt by Farm Bureau to ban herdshares. When it comes to establishing and protecting unregulated direct farmer-to-consumer commerce, it is a model organization for those in other states to follow.

Click image below to watch the video from the 2/1/18 Senate committee hearing on SB 962 starting at time marker 0:45:40 (Note: Christine Solem stands to the right, behind Senator Obenshain)

They are Rounding Up the Raw Milk Drinkers

Republished by permission from Bernadette Barber, originally posted 25 January 2018 at Virginia Food Freedom.

Twin bills in the Virginia legislature, SB 962 by Sen. Mark Obenshain (R-26) and HB 825 by Del. Barry Knight (R-81) are the first steps in destroying the very farm operations that allow people to access cream line raw milk (farm fresh, unpasteurized, unhomogenized).

In the 1950’s it was common to purchase raw milk in VA. Over the course of time, industrialization forced smaller dairies out of the countryside. By the 70’s and 80’s people were missing that good old real milk. They sought it out and by default, since by then outright purchase was illegal, they found that it was not illegal to drink milk from your own cow. So it began, cow shares and herd shares sprang up in Virginia.

People chose raw milk for a myriad of reasons, taste, healthfulness and ability to know the farmer who milks the cow are three major ones.

To understand the gravity of the situation, one must understand the power hungry milk processors at the state level and the national level. They have well paid lobbyists. The lowly dairy farmer him or herself does not make a fortune on milking cows. They might make a dollar a gallon (it is measured by weight not volume). On the other hand the processors, who manufacture the creams, yogurts, butters, flavored milks, cheeses and more are making a fortune. Sometimes the margins are so slim on items they constantly must create new items to appeal to the masses. Over the course of time competing industries have interfered with profit margins. Enter protein and power beverages, designer teas, gatorade, coconut milk, almond milk, designer juices and more. They all command attention at the grocery store and the dairy industry is losing the customer base it once had.

Citing USDA Agricultural Marketing Service Data from 2012 to 2016, annual conventional milk sales declined by 8%, (that’s 4 billion pounds) and organic milk sales increased by 20%. The decrease in fluid milk sales transfers to an annual decline of $1.7 billion dollars as reported by the American Farm Bureau Federation.

So there it is, the bottom line. Fluid milk sales is a mult-billion dollar trade. And they don’t want to share. So in come the RINO republicans and industry advocates, Barry Knight and Mark Obenshain to kill off a small thriving community of cow-sharing- organic-raw-milk drinkers and farmers.

Do yourself a lovely favor this day, consider acquiring some raw cream for your coffee. And do some online research. In one search use the word CAFO and in another use the words cow share. See which model you would like to use for your personal food consumption. And ask yourself why Knight and Obenshain want to destroy small farm operations.

If you have more time, please call Del. Knight 804-698-1081 and Sen. Obenshain 804-698-7526 and ask them to withdraw the bills. Because they are both on the Agriculture Committees, they do represent ALL Virginians in that aspect, please don’t let the gatekeeper deny your voice. It will help some small farmers.

For more information on the issue and to get involved, please view and join www.vicfa.org 

Thanks for all your help,

Bernadette Barber

Will Raw Milk Become a Constitutional Right in Virginia?

When the Virginia General Assembly convenes on January 14, 2015, it will consider a constitutional amendment that would guarantee the right to buy homegrown food at the farms that produce it. The amendment states, “The people shall have the right to acquire for their own consumption farm-produced food directly at the farm with agreement from the farmer who produced it.”

“Right now, you have the right to purchase food of your choice – but regulations prevent the right (of farmers) to sell them. This amendment gives consumers standing in court,” explains Lois Smith, president of the Virginia Independent Consumers and Farmers Association.

This constitutional amendment is expected to garner support from several co-signers and a Senate sponsor. If it is approved, Virginia would be the first state to pass such an amendment.

The Campaign for Real Milk is a project of the Weston A. Price Foundation, a nutrition education non-profit based in Washington, D.C. Fan the Campaign for Real Milk on Facebook.