Montana House Passes Bill to Legalize Some Raw Milk Sales
Today, the Montana House passed a bill that would legalize limited raw milk sales in the state. Passage into law would take an important step toward rejecting a federal prohibition scheme in effect.
Rep. Nancy Ballance (R-Hamilton) introduced House Bill 325 (HB325) on Jan. 26. The legislation would authorize limited sales of raw milk from producer to consumer.
Current Montana law prohibits raw milk sales.
The House passed HB325 by a 69-30 vote.
Under the proposed law, a “small dairy,” would not be required to obtain a license to produce dairy products. This would allow them to sell raw milk direct to the consumer. The amended bill defines a small dairy as a place with no more than five lactating cows, 10 lactating goats or 10 lactating sheep. Under the original bill, a small dairy would have been allowed to have twice as many animals.
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The committee also removed milk testing requirements for raw milk. The lack of testing could erode some support for the bill in the full House.
Activists have been trying to legalize raw milk in the state since 2012, but face stiff opposition from the state health department, the dairy industry, veterinarian organizations and even county commissioners. Opponents cite safety concerns.
Chris Rosenau has been on the forefront of the raw milk legalization efforts in the state. She said opponents use fear-mongering tactics against legalization. During the last legislative session, the City and County of Missoula, the Association of Montana Public Health Officials, The Montana Environmental Health Association and the Montana Public Health Association published a blog in opposition to raw milk legalization.
Rosenau said many opponents think it’s their job to protect people from themselves. Unsurprisingly, the dairy industry lobbies heavily against legalizing raw milk.
“It’s Montana for Pete’s sake. We have people moving here from one of the 40 states with ‘legal’ raw milk and they are gobsmacked that it’s illegal here,” she said. “I’m not even a milk drinker. The reason I’m doing this is because it’s not the government’s right to decide what’s best for me and my family.”
Impact on Federal Prohibition
FDA officials insist that unpasteurized milk poses a health risk because of its susceptibility to contamination from cow manure, a source of E. coli.
“It is the FDA’s position that raw milk should never be consumed,” agency spokeswoman Tamara N. Ward said in November 2011.
The FDA’s position represents more than a matter of opinion. In 1987, the feds implemented 21 CFR 1240.61(a), providing that, “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.”
Not only do the feds ban the transportation of raw milk across state lines, they also claim the authority to ban unpasteurized milk within the borders of a state.
“It is within HHS’s authority…to institute an intrastate ban [on unpasteurized milk] as well,” FDA officials wrote in response to a Farm-to-Consumer Legal Defense Fund lawsuit against the agency over the interstate ban.
The FDA clearly wants complete prohibition of raw milk and some insiders say it’s only a matter of time before the feds try to institute an absolute ban. Armed raids by FDA agents on companies like Rawsome Foods back in 2011 and Amish farms over the last few years also indicate this scenario may not be too far off.
Legislation like HB325 takes a step toward nullifying this federal prohibition scheme.
As we’ve seen with marijuana and industrial hemp, an intrastate ban becomes ineffective when states ignore it and pass laws encouraging the prohibited activity anyway. The federal government lacks the enforcement power necessary to maintain its ban, and people will willingly take on the small risk of federal sanctions if they know the state will not interfere. This increases when the state actively encourages the market and nullifies federal prohibition in effect.
We’ve seen this demonstrated dramatically in states that have legalized industrial hemp. When they authorized production, farmers began growing industrial hemp, even in the face of a federal ban. Despite facing the possibility of federal prosecution, some growers were still willing to step into the void and begin cultivating the plant once the state removed its barriers.
In the same way, removing state barriers to raw milk consumption, sale and production would undoubtedly spur the creation of new markets for unpasteurized dairy products, no matter what the feds claim the power to do.
It could ultimately nullify the interstate ban as well. If all 50 states allow raw milk, markets within the states could easily grow to the point that local sales would render the federal ban on interstate commerce pointless. And history indicates the feds do not have the resources to stop people from transporting raw milk across state lines – especially if multiple states start legalizing it. Growing markets will quickly overwhelm any federal enforcement attempts.
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HB325 now moves over to the Senate for further consideration.
