The Ban That Never Was

By Pete Kennedy, Esq.

The interstate ban on raw milk for human consumption went into effect in 1987. The position of the Food and Drug Administration (FDA) has long been that the prohibition applies to all raw milk in interstate commerce. The truth is otherwise; a reading of the law clearly shows that the ban applies only to cow’s milk. The shipment of raw goat milk, raw sheep milk, raw camel milk, raw water buffalo milk, etc., in interstate commerce is all legal; the ban on raw dairy from animals besides cows applies only to products other than raw milk and aged raw cheese. In other words, for cows only aged raw cheese is legal; for all other dairy animals, raw milk and aged raw cheese are legal.

Like so many laws, it all comes down to the definitions in the regulations. The federal regulation establishing the ban, 21 CFR 1240.61, states: “(a) No person shall cause to be delivered into interstate commerce or shall sell, otherwise distribute, or hold for sale or other distribution after shipment in interstate commerce any milk or milk product in final package form for direct human consumption unless the product has been pasteurized….”

A separate regulation, 21 CFR 1240.3, has the applicable definitions of “milk” and “milk products.” The definition in 21 CFR 1240.3(i) states, “Milk is the product defined in ß131.110 of this chapter.” Regulation 21 CFR 131.110 provides, in part, “Milk is that lacteal secretion practically free from colostrum, obtained by the complete milking of one or more healthy cows….” By contrast, the definition of “milk products” in 21 CFR 1240.3(j) is “Food products made exclusively or principally from the lacteal secretion obtained from one or more healthy milk-producing animals….” (emphasis added).

In 1992 when FDA proposed adding the definitions for “milk” and “milk products” to 21 CFR 1240.3, the agency made the following statement in the Federal Register (57 FR 1407.1408): The purpose of these technical amendments is, first, to set out these dairy products that are covered under Section 1240.61. Therefore, in Section 1240.3, FDA is defining “milk” and “milk products.” FDA is proposing to adopt as its definition for “milk” the standard of identity for this food in 21 CFR 131.110. FDA is proposing to use the standard as its definition because the agency believes that it should use consistent definitions in regulations. The definition for “milk products” includes all foods other than “milk” normally regulated by state and regulatory agencies as dairy products under federal or state law or under state model ordinances such as the Grade A Pasteurized Milk Ordinance (emphasis added).

The judicial and administrative actions over thirty years ago that led to the raw milk ban concerned, either entirely or almost entirely, only cow’s milk. If FDA is contemplating amending the regulation establishing the ban to extend it to all raw milk, the agency needs to consider the fact that the ban on raw cow’s milk has been about as effective as the prohibition on alcohol was during the 1920s. The sign of a bad law is one that otherwise law-abiding citizens violate regularly; 21 CFR 1240.61 fits that description to a T. The ban came about because a court ordered FDA to issue a regulation, not because of any law passed by the people’s branch, Congress. Instead of expanding the ban, FDA should repeal it, legalizing the sale of all raw dairy products in interstate commerce; thirty years of the agency denying freedom of food choice on these products is more than enough.

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