Sue Wallis, a Wyoming Republican legislator, recently introduced a bill called the Wyoming Food Freedom Act, which, in Wallis’s words, "seeks to clarify the fundamental right of Wyoming citizens to eat whatever they want to eat."
Ron Paul, libertarian-minded republican congressman from Texas undoubtedly would have supported Mrs. Wallis’s bill, had he been a Wyoming legislator. He didn’t say as much, but he did recently introduce a bill into the federal Congress, HR 778, that sought "To authorize the interstate traffic of unpasteurized milk and milk products that are packaged for direct human consumption," seeking to override the current prohibition against the interstate sale and shipment of raw milk. Congressman Paul stated, in support of the bill,
"I urge my colleagues to join me in promoting consumers’ rights, the original intent of the Constitution, and federalism by cosponsoring my legislation to allow the interstate shipment of unpasteurized milk and milk products for human consumption."
The bill was referred to committee after introduction, where it did not get a second sponsor and thus died a timely death.
There is, in fact and law, no "fundamental right to eat whatever we want," and no indication in the federal Constitution that the founders intended such a right to be implicit in the Bill of Rights. In fact, these legislative attempts are a little ironic, considering that their sponsors, Mrs. Wallis and Mr. Paul, are undoubtedly strict constructionists when it comes to constitutional interpretation. Indeed, the only inference as to the founders’ intent that can fairly be drawn from the Constitution is that Congress is well within its rights to outlaw the interstate sale and shipment of raw milk.
The decidedly moralistic, and sometimes even religious, undertones with which the arguments over the exploding raw milk war are framed are insensible and largely irrelevant. There is no legal support for them, much as there is no legal impediment to the several states and Congress’s legal authority to regulate raw milk.
It is astonishing that proponents of raw milk are willing to put their livelihoods, financial well-being, and potentially even their personal freedom at stake over this cause. Setting aside the risk that the raw milk poses to consumers, the other shoe will drop at some point, and the states and federal government will begin enforcing, not just with civil penalties but also with criminal prosecution, those who elect to break the law by selling raw milk in states that prohibit it and distribute raw milk across state lines, which is forbidden by the federal government.
The current campylobacter outbreak linked to Forest Grove Dairy in Middlebury, Indiana may be an example of circumstances that could support criminal prosecution. As AnnArbor.com reports, the Dairy received a warning letter from the Food and Drug Adminstration in 2007 warning it of violations of federal code. The letter on the FDA’s site references 21 CFR 1240.61 on the mandatory pasteurization of milk delivered into interstate commerce. Though it is heavily redacted, the letter reads as follows:
"The regulation prohibits the delivery into interstate commerce of [redacted] and [redacted] in final package form for direct human consumption unless they have been pasteurized. The [redacted] and [redacted] you produce in [redacted] and distribute to [redacted] and [redacted] for further distribution to their [redacted] is in final package form for direct human consumption."
Despite the redactions, it is clear that the FDA explicitly warned the Dairy that it was violating federal law in producing and selling raw milk for consumption by citizens of other states. Further, the milk was distributed under the guise of a cow-share agreement, which is arguably in violation of state law on the distribution and sale of raw milk.
The raw milk debate is certainly not going away anytime soon. Although it is likely to fall on deaf ears, maybe the right approach would be to allow consumer health and safety to drive laws on the subject, rather than arguments about fundamental freedoms, God’s will, and Constitutional rights that do not exist.