Tenth Amendment Center: Utah Senate Passes Bill to Expand Raw Milk Sales; Important Step to Nullify Federal Prohibition Scheme

From Tenth Amendment Center

...from Tenth Amendment Center

SALT LAKE CITY, Utah (Feb. 26, 2018) – On Friday, the Utah Senate passed a bill would expand raw milk sales in the state. Final passage into law would take an important step toward rejecting a federal prohibition scheme in effect.

Sen. David Hinkins (R-27) and Rep. Marc Roberts (R-67) introduced Senate Bill 108 (SB108) January 23. The legislation would expand existing laws relating to raw milk sales from producer to consumer in the state. Under the proposed law, a milk producer would be able to sell up to 120 gallons of raw milk per month to consumers without meeting stricter requirements under the current law and permitting program, providing certain conditions are met. Under the proposed law, the raw milk could only be sold directly to the consumer on the premises where the milk is produced for household use, not resale. SB108 also includes handling, sanitation and record-keeping requirements for unlicensed producers of raw milk. The milk bottle would have to include the warning “This raw milk has not been licensed or inspected by the state of Utah. Raw milk, no matter how carefully produced, may be unsafe.”

The proposed law would also allow licensed producers to sell raw milk from a mobile refrigerated truck where the raw milk is maintained at 41 degrees Fahrenheit or a lower temperature.

The Senate passed SB108 by a 21-6 vote.

An amendment approved in the Natural Resources, Agriculture, and Environment Committee stripped a provision from the bill that would have allowed licensed producers to sell raw milk at farmers’ markets.

Under the current law, raw milk sales are only allowed on the farm, or from a retail store owned by the producer under strict licensing guidelines. Passage of SB108 would relax requirements for small producers, and expand legal sales. This would allow the raw milk market in Utah to grow.

According to nofamass.org, “With a growing demand for raw milk and a decreasing number of raw milk dairies, many consumers are unable to purchase this product.”

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 SB108 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.

WHAT’S NEXT

SB108 now moves to the House for consideration. It was referred to the House Natural Resources, Agriculture, and Environment Committee where it must pass by a majority vote before moving forward in the legislative process.

Mike Maharrey
February 26, 2018 at 11:42AM