Tenth Amendment Center: Louisiana Bills Would Legalize Limited Raw Milk Sales; First Step to Nullify Federal Prohibition Scheme

From Tenth Amendment Center

...from Tenth Amendment Center

BATON ROUGE, La. (March 6, 2018) – Bills prefiled in the Louisiana House and Senate would legalize limited raw milk sales in the state, taking an important step toward effectively nullifying a federal prohibition scheme in effect.

Sen. Eric LaFleur (D-Ville Platte) prefiled Senate Bill 188 (SB188) on Feb. 28. Rep. Malinda White (D – Bogalusa) introduced a companion bill (HB437) in the House. The legislation would allow farmers to sell unpasteurized cow and goat milk directly to consumers. The law would limit raw milk sales to an average of 500 gallons per month.

Current Louisiana law imposes a complete ban on the sale, transport and importation of raw milk or raw milk products.

SB29 would establish labeling requirements, and sellers would have to meet extensive and strict sanitary regulations under the law.

In 2016, a similar bill passed the Louisiana Senate but never received a committee hearing in the House.

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 SB188 and HB437 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

SB188 and HB437 will be officially introduced after the regular session convenes on March 12. SB188 will be referred to the Senate Health and Welfare Committee. HB437 will be referred to the House Agriculture, Forestry, Aquaculture and Rural Development Committee. The bills will have to pass their committees by a majority vote before moving forward in the legislative process.

Mike Maharrey
March 06, 2018 at 06:10AM