Header graphic for print

Food Safety News

Breaking news for everyone's consumption

Cow Share Agreements: Fooling Nobody

Raw milk folk are certainly wedded to their cause.  I was present at the California Legislature in January 2008 when one to two hundred people paraded to the podium to say who they were and how far they had come to support the repeal of California’s newly instituted coliform limit in raw milk.  And I have certainly witnessed the vehemence with which raw milk promoters tout the safety and healthfulness of their product.  But one question that has always concerned me is whether the folks who promote the distribution of raw milk under “cow share agreements,” particularly in states that otherwise prohibit the sale or distribution of the product, really understand the legal implications of their actions.  

Admittedly, my question derives, in large part, from my experiences with raw milk.  None of them have been good.  I have never consumed the product, and nobody in my family or indirect sphere of influence ever will.  In 2005, I represented two families whose children developed hemolytic uremic syndrome in an outbreak linked by the Washington Departments of Health and Agriculture to raw milk produced by “Dee Creek Farms” in Woodland, Washington.[1] And since the Dee Creek Farms outbreak, I have certainly seen many whose lives have been devastated, even permanently altered, by raw milk–not least of whom Mari Tardiff, who developed Guillain Barre Syndrome after contracting Campylobacter from raw milk sold by Alexandre EcoDairy in Crescent City, California.     

My guess is that a desirous person could obtain raw milk in any state in the country.  But there are only a few states that actually allow the sale of raw milk from farm or dairy to consumer.[2] Of those states that prohibit the sale of raw milk outright, or allow it only by licensed dairies,[3] many have had to respond to a certain species of legal maneuvering called “cow share agreements.”  Some states explicitly prohibit cow share agreements, and others do not express an opinion on the subject in state statutes.

Unfortunately, it is precisely this relative silence on the subject of cow shares that creates the problem.  Though I don’t know who first dreamt them up, I certainly know why:  because (1) the state where that individual lived did not permit the sale or distribution of raw milk, or (2) the individual was not a dairy licensed to distribute or sell raw milk.  Thus, even at their inception, cow shares were strikingly transparent.  Their sole purpose from inception was to avoid the illegalities of their otherwise forbidden action.  

When I saw my first such agreement, these illusory milk-sales contracts struck a chord with me as a lawyer.  I immediately thought back to my first year criminal law class, when we reviewed a drug possession case where the defendant contended that he was innocent because he had “looked the other way” when several people had loaded his car with drugs to be delivered.  The defendant’s theory was that, because he did not watch the men loading drugs into his car, he had no actual knowledge of what he was possessing and transporting, and therefore could not be guilty of possessing and transporting drugs.  The parallel is admittedly not exact, but it is surely another situation where somebody is engaging in manipulative conduct that he well-knows will achieve exactly the result forbidden by the legislature.  In fact, both people, the defendant not watching his car being loaded with drugs and the people selling shares of cows rather than raw milk, actually intend and expect the forbidden result to occur.

As the chorus of “no” builds, a brief look at a cow-share agreement that was used in one of our raw milk cases will illustrate.  One would think that, if he purchases a “share” of a cow or herd of cows, he would have the expectation of certain property rights in his cow or herd of cows.  Not so.  Here are a few of the contractual terms:

Purchase and Sale of an Interest in a Herd of Cows.  Seller hereby sells to Buyer and Buyer hereby purchases from Seller ___ shares in the herd of cows described in Exhibit “A” . . .  It is agreed and understood by Buyer that Buyer’s interest in the Herd is a limited interest shared with others of co-ownership in the Herd and that the interest purchased by Buyer does not convey or vest in Buyer sole ownership of the Herd or of any particular cow in the Herd.  It is further agreed and understood that the specific cows in the Herd may change over time as cows die or as Seller adds to or deletes from the Herd in its sole and absolute discretion; however, Seller shall not be obligated to add to the Herd to replace a cow that dies, but may do so at Seller’s discretion.  Seller will notify Buyer of all such changes in the Herd.  Buyer’s interest does not include any rights to or interest in any offspring of any cow in the Herd; all rights to, interest in, and ownership of any and all offspring of cows in the Herd is reserved by Seller and shall vest and remain in Seller.

Indeed, aside from the right to “visit and interact with the Herd at such times and places as Seller shall from time to time designate,” the contract at issue gave the buyer virtually nothing at all that would be consistent with his enjoyment of true property rights or interests in the cow herd that he had purchased shares of.  There was, however, monthly maintenance fees and a “container fee,” which was “a one-time, non-refundable fee of $15.00 per share to cover costs associated with milk containers.”  

Why do these contractual provisions matter?  Because they suggest what really was being bargained for.  My guess is that both parties to the above contract fully expected that the buyer’s only use of his share of the herd would be the provision of raw milk.  Likely only a few, if any, would ever exercise their rights of herd visitation, and even then the right would be incidental to the true purpose of the bargain that the parties had struck.  Bottom line:  these contracts are purely and simply for the distribution of raw milk, which, again, is exactly the result that the legislatures of many states have forbidden.  

This was exactly the conclusion that the State of Washington reached in response to the Dee Creek Farm outbreak.  Ultimately, Dee Creek was fined $8,000 for distributing raw milk without a license and other violations related to the sanitary condition of its facilities.  

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.

References

[1]  In point of fact, however, it wasn’t so much the milk as it was the deplorable conditions found at the dairy that soured that experience entirely (See WSDOH Report).  Among other things, the Washington State Department of Agriculture found during its investigation:
 

  • No animal health testing documentation for brucellosis and tuberculosis or health permits
  • Beef cattle contact wi
    th wild elk
  • No water
    or waste water system available at milk barn for milking operations or cleaning
  • No hand washing sinks available for cleaning and sanitizing
  • No bacteriological test results available for the farm’s well-water system
  • Mud/manure with standing water at the entrance to the milk barn parlor
  • Milking bucket in direct contact with unclean surfaces during milk production
  • Multiple instances providing for the opportunity for cross-contamination
  • No separate milk processing area from domestic kitchen
  • No raw milk warning label provided on containers

[2]  Interestingly, two such states, California and Connecticut, have experienced recent outbreaks.  In July 2008, the Connecticut Department of Health identified an outbreak of E. coli O157:H7 linked to raw milk purchased at a Whole Foods store.  California, of course, has experienced multiple outbreaks in recent years, including those linked to the illnesses of Chris Martin and Mary Tardiff.

[3]  For instance, Washington allows the sale of raw milk by licensed sellers, and the licensed sellers must meet stringent legal standards set forth at RCW § 15.36 et seq. and by the Department of Agriculture.

© Food Safety News
  • Christina Chaston

    Interesting… Why is it people freak out about raw milk, when the grocery stores sell raw meat, which is so frequently recalled in mass amounts due to contamination? Should we only sell cooked meat at the grocery store? What about alcohol, which many people abuse and cause s health problems, and TOBACCO???? I’m sure there are worse things for you than raw milk… If you dont want to take the “risk” of drinking raw milk, buy pasturized. It should be YOUR CHOICE as a consumer.

  • http://www.monacobodyworks.net Tim Monaco

    Indeed…lets cut to the chase. Raw milk is a threat to agribusiness and the dairy board, and they are spreading any amount of propaganda necessary to outlaw raw milk. Frankly this is a blatant violation of constitutional rights and it is amazing that no one seems to notice! As the last comment mentions, there are a hell of a lot more dangerous things that are perfectly legal and marketed to us as “healthy”. Let’s not forget about the pervasive message that pharma drugs are safe and effective for what they are billed. We are in an era of Orwellian control over out choices and we all need to start to pay attention before it’s too late. Health is pretty simple when you strip it down. Get in line with what got us to this stage of development as humans (ie what did your ancestors do?)and you will do just fine. Your choice indeed…

  • Alan Lawrence

    Choice … interesting that you use that word. Do the children of raw milk proponents have the “choice” of drinking this pathogen-laden substance? All that is “natural” is not safe e.g. mercury, uranium, cyanide, etc. So, is it OK to purvey these substances for human consumption too using your logic? Lastly, do we, the taxpayers, have to pay for the time and expenses of public health professionals, health care providers/insurers every time you people poison yourselves?

  • Christina Chaston

    “You people” just so happen to pay taxes like everyone else, and “you people” also pay for the health damage done to people that get sick from living a crappy lifestyle and choosing fast food, smoking, processed “food” and pharmaceuticals to treat all kinds of problems that would be easily solved by living a lifestyle that is in tune and balanced with the natural state of health that every other animal on the planet seems to achieve so easily. Clearly, you live a store bought, homogenized, pasturized lifestyle that is surrounded by plastic. “you people” are living in nature and are much happier living on the wild side… As for mercury, are you up to date on your vaccines? lol Bet you roll your sleeve right up for a nice jab of thimersol. Because they told you that a vaccine containing a “safe” level of mercury is good for you, but raw milk is BAD! Heres a tip. Question everything and do your own research!

  • Laney Poire

    2001: Outbreak of Campylobacter jejuni infections from drinking “raw” or unpasteurized milk.
    2003: Outbreak of Listeria monocytogenes infections from eating unpasteurized queso fresco (a Mexican-style soft cheese)
    2003: Outbreak of Salmonella infections from eating unpasteurized queso fresco.
    2004: Outbreak of E. coli.O157 infections from eating unpasteurized queso fresco
    1997, 28 persons ill from Salmonella in California, ALL FROM PASTEURIZED MILK.
    Massachusetts, June 1996, 38 persons ill and possibly contributing to one death from food contaminated with Salmonella served in a Wendy’s restaurant.
    1996, 46 persons ill from Campylobacter and Salmonella in California. Idaho, September 1995, 11 people ill due to E. coli 0157:H7 traced to food eaten in a Chili’s restaurant in Boise.
    Florida, August 1995, 850 people ill from Salmonella newport bacteria in chicken served at Margarita y Amigos restaurant in West Palm Beach.
    Utah, January 1995, 96 people ill from hepatitis A traced to an employee of a Taco Bell restaurant in Salt Lake City
    Washington, DC, August 1994, 56 people ill and 20 hospitalized from Salmonella in Hollandaise sauce.
    Georgia, October 1993, one dead, 7 others ill from botulism in canned cheese sauce.
    March of 1985 19,660 confirmed cases of Salmonella typhimurium illness FROM CONSUMING PROPERLY PASTEURIZED MILK. Over 200,000 people ill from Salmonella typhimurium in PASTEURIZED MILK
    1985, 142 cases and 47 deaths traced to PASTEURIZED Mexican-style cheese contaminated with Listeria monocytogenes.
    August of 1984 approximately 200 persons became ill with a Salmonella typhimurium from CONSUMING PASTEURIZED MILK

  • Leanne

    Yay Lanie! Fast food restaurants do so much more health damage both long term and short term (as shown above!) than raw milk EVER has. And raw milk has so many benefits, how many benefits can you name for fast food? You can eat it in the car? I suppose that’s one.

  • Leanna Simmons

    I love Laney list! Raw milk opponents will site small, individualized cases as to why raw milk is dangerous, but refuse to recognize all the cases that have come from pasteurized milk. I mean come on, look at all the problems that come from this mass production of food, not only milk but meat and vegetables. I proudly produce my own food, including milk from my own goats.

  • Angela Polder

    In response to Laney Poire’s comment on 10/ 27/2011:Im not typically a confrontational person and certainly am too busy to respond to everyones comments that they leave on every website I look at, but come on and be a little more rational here…
    in 2001: I bet more people died from plane crashes than drinking raw milk.
    in 2002: I bet more toddlers died from tipping over in tiolets and drowning than people died from drinking raw milk.
    in 2003: I bet more children died from drowning in swimming pools than drinking raw milk.
    in 2004: I bet more people died in car accidents than drinking milk.
    in 2005: I bet more people died from tractor accidents on farms than people did from drinking raw milk.
    in 2007; I bet more people died from lung cancer from smoking than people died from drinking raw milk.
    in 2012: Its only June, and I bet that more people have died from cancer because they consume more McDonalds hamburgers than things like their grandparents and great-grandparents consumed-like RAW MILK than people have died from drinking RAW MILK!
    But….We certainly wouldnt make planes,tiolets,swimming pools, cars, tractors cigs., and McDonalds illegal…….NOR SHOULD we..People are responsible to make their own decisions and are responsible for the outcome that effects their family and themselves.We do not need the government to dictate every time we use the restroom!!
    Better wake up before it hits you too…where it hurts.

    • Keira

      Great comment Angela! We have been drinking raw milk from our cow since I can remember. All ten of us and nobody has every been sick from it. (and we are talking like 33 years!)

  • Carol

    I READ ABOUT ALL THESE PEOPLE GETTING SICK FROM “RAW” MILK BUT KNOW ONE SEEMS TO MENTION IN THEIR ARGUMENT ABOUT ILLNESS FROM MEAT, FISH AND FOR GOODNESS SAKES EVEN VEGETABLES. LIFE IS A RISK AND NO DOUBT YOU ARE AT GREATER RISK GOING IN YOUR CAR TO GET THE MILK THEN DRINKING IT. I OFTEN WONDER WHY IN MY ENTIRE LONG LIFE I HAVE NEVER HEARD OF ONE PERSON GETTING SICK FROM DRINKING “RAW” MILK IN THE AREA I LIVE AND I HAVE LIVED IN A FARMING COMMUNITY ALL MY LIFE EXCEPT FOR A VERY SHORT TIME AND EVEN THEN I WAS VERY MUCH CONNECTED TO IT . IT JUST MAKES ME WONDER IF THE TRUE CAUSE OF THIS ILLNESS IS REALLY “RAW’ MILK OR THE AUTHORITIES ARE JUST QUICK TO JUMP ON THE BAND WAGON???AND LATER PRINT ON THE BACK PAGE OF THE NEWSPAPER THAT IT WAS LETTUCE OR MEAT OR WHATEVER??? YES, BEFORE YOU GET YOUR SHIRT IN A KNOT I AM SURE PEOPLE HAVE GOTTEN SICK BUT THERE HAS TO BE MORE QUESTIONS WHY AND HOW?WHY DO WE LIMIT MILK BUT NOT OTHER FOODS WHICH SEEM TO HAVE A GREATER PROBLEM WITH CONTAMINATION.I WOULD BE INTERESTED TO HEAR THE ANSWER AND PLEASE USE YOUR OWN THOUGHTS I HAVE HEARD ENOUGH REGURGITATION OF QUESTIONABLE SO CALLED FACTS.

  • James Couch

    Can anyone tell me why it is illegal to sell raw milk but it is legal to sell cigarettes?

  • James Couch

     I was raised on a farm and I and the other six members of my family drank the pathogen laden substance for 18 years and never got sick once. My parents, grandparents and great grandparents and all their children all drank the pathogen laden substance with no ill effects. I’m sure glad we had a bevy of professionals looking after us to keep us safe.

  • Informed Choices

    Again it’s about choice. People pick up pathogens and parasites from eating sushi, liverwurst and other processed foods but there aren’t huge food conglomerates standing to lose money when people go directly to the farmer or source for their food. It’s not in their shareholder’s best interests to allow that kind of thing to happen. It’s ridiculous. I know that consuming milk, either pasteurized or raw, can lead to disease.

    It happens all the time and due to distribution and utterly careless milk collection from farmers who know their product will be pasteurized, much more wide spread with the pasteurized product than the raw. I have studied the nutritional differences between the two products and for the risk and that’s called informed choice. We’re not babies; we know what smoking, drinking alcohol and taking drugs do. It is asinine to think that people who go out of their way to search for raw milk do not know the risks and benefits associated with it’s consumption. If you don’t want to drink the stuff, just don’t drink the stuff.

  • cyndi

    If someone wants to share a cow and drink its milk, who is the government to stop them? Is this or is this not a free country!? I am outraged! I live in Hawaii where it is illegal to buy raw milk and it is absurd that i can drink alcohol, smoke ciggarrets, buy salmonella poisoned chicken or vegetables from the supermarkets but i cant buy healthy raw milk from my local farmer! This country is run by greed. And everyone is brainwashed to think that raw milk is dangerous. SMH