The FDA issued a statement yesterday on the campylobacter outbreak in Michigan linked to raw milk, which reads as follows:

The U.S. Food and Drug Administration, along with several state agencies, is alerting consumers to an outbreak of campylobacteriosis associated with drinking raw milk. At least 12 confirmed illnesses have been recently reported in Michigan. Symptoms of campylobacteriosis include diarrhea, abdominal pain and fever.

The FDA is collaborating with the Michigan Department of Community Health (MDCH), the Illinois Department of Public Health, the Indiana State Board of Animal Health and the Indiana State Health Department, to investigate the outbreak. MDCH reports that, as of March 24, 2010, it received reports of 12 confirmed cases of illness from Campylobacter infections in consumers who drank raw milk. The raw milk originated from Forest Grove Dairy in Middlebury, Ind.

The milk was produced in Indiana under a cow-share agreement (sometimes called a herd share agreement).  Federal law prohibits the interstate sale of raw milk.  In fact, it is not a constitutional right to eat whatever you want; and states are, as a result, well within their legal authority to prohibit the sale of raw milk within their borders.

The fact that federal law prohibits the interstate sale and shipment of raw milk (a measure done in furtherance of Congress’s ability to regulate interstate commerce) prompts a question.  What is an Indiana dairy doing selling and shipping milk across state lines?  This was tried before, and it resulted in a criminal prosecution against the offenders (the owners of Dee Creek Farms in Woodland Washington).  What will happen in this cse? 

It is no answer for Forest Grove Dairy, located in Indiana, to say that it did not sell raw milk.  It certainly did, and it’s product was also shipped in interstate commerce, thus violating state and federal law.  Also, Michigan law says, specifically:  "Only pasteurized milk and milk products shall be offered for sale or sold, directly or indirectly, to the final consumer or to restaurants, grocery stores or similar establishments."

The fact that Forest Grove Dairy distributed the subject raw milk using the illusory framework of a cow/herd-share agreement is also a bad defense.  In fact, it’s no defense at all.  I authored the following article for back in November 2009 on this issue specifically:

Truly, to call a cow share agreement a species of legal maneuvering may be giving too much cred to an effort that is designed either to flout the law entirely, or at the very least to 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 juding 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. 

Read Cow Share Agreements:  Fooling Nobody.Continue Reading Cow/Herd Share Agreements Revisited