Yesterday’s announcement of another E. coli O157:H7 outbreak linked to raw milk will surely set off another round of debate about the virtues, dangers, legality, and even constitutionality of state and federal regulation of raw milk. Many states disallow raw milk sales; some allow it from properly licensed dairies; and in some states, such as Minnesota, allow only occasional sales of raw milk at the farm that produces it–i.e. you cannot buy it in grocery stores or other retail locations.
The federal government does not permit sales or distribution of raw milk across state lines, which derives from Congress’s power to regulate "interstate commerce." The reason that states and the federal government regulate raw milk so heavily is that the unpasteurized product is not subjected to heat treatment sufficient to kill any pathogenic bacteria present in the milk, and is thus thought to present an unnecessary risk of illness to consumers.
Realrawmilkfacts.com identifies at least 38 outbreaks of E. coli O157:H7, campylobacter, or salmonella linked to raw milk between 1998 and 2008. And more recently, raw milk outbreaks have been linked to dairies in Pennsylvania, Utah, and Minnesota, just to name a few. According to realrawmilkfacts.com:
According to CDC, between 1998 and 2008, there were 85 outbreaks of human infections resulting from consumption of raw milk reported to CDC, including a total of 1,614 reported illnesses, 187 hospitalizations and two deaths. Illnesses and deaths have also been linked to the consumption of fresh cheese made from raw (unpasteurized milk), especially the Mexican-style queso fresco cheeses. Since many millions of people drink pasteurized milk every day in the United States, and only about 1-3% of the population drinks raw milk, the number of illnesses reported show that the actual risk of getting sick from drinking raw milk is tremendously higher than drinking pasteurized milk.
As a result of the heavy regulation of raw milk, consumers and organizations who encourage the ability to buy and consume raw milk have devised schemes to avoid the state and federal regulations. Buying clubs have sprung up in many of the states, including Minnesota, that allow raw milk sales only at the farm that produced the product. In an article earlier this month, Southcoasttoday.com reported on raw milk buying clubs in Massachussetts:
Raw milk refers to milk that’s not pasteurized, making the product — depending on who you ask — either an untapped source of healthy living or unsafe to drink. Rising popularity and the fact that raw milk in Massachusetts can only be sold on the farms where it’s produced have led to the rise of buyers clubs. These are groups that enable people to save gas and driving time through bulk pickups and off-site distribution.
In an interview with The Standard-Times last Thursday, Department of Agricultural Resources Commissioner Scott J. Soares said four buying clubs in the Bay State were issued cease-and-desist orders in recent months because they’re not licensed for off-the-farm raw milk distribution.
Cow or herd-share agreements are another method often used by raw milk consumers in states where they can’t purchase the product at retail. These agreements seek to insulate purveyors of raw milk from state and federal regulation by allowing consumers to purchase shares in a specific cow or herd instead of paying money directly for milk. The logic, of course, is that state and federal regulation cannot reach this conduct because it does not involve the specific sale of raw milk.
I have addressed these agreements before, concluding:
Truly, to call a cow share agreement a species of legal maneuvering may be giving too much credit to an effort that is designed either to flout the law entirely, or at the very least avoid the often stringent requirements associated with licensure. In reality, cow shares are poorly disguised attempts to accomplish something that is, in most states, patently criminal. As a result, when judging whether such conduct constitutes the sale or distribution of raw milk, courts are likely to approach these cases with a healthy dose of realism in determining what the parties’ true intent was, whether the forum be civil or criminal court.
See Cow Share Agreements: Fooling Nobody, Food Safety News, Nov. 9, 2009
Many states have confronted cow and herd-share agreements head-on, and most have closed the legislative loophole by specifically outlawing the practice. But not even that has deterred proponents of raw milk; it has, in fact, forced some into ever-more-dangerous, and highly illegal, distributive schemes, including placing a "pet food only" label on raw milk that they know, or have reason to know, will or may be consumed by human beings. Alaska, Colorado, and North Carolina require raw milk to be dyed before being marketed as pet food in order to address this problem specifically.