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Raw Milk: An Issue of Safety or Freedom?

One need not look far to grasp the scope of this country’s food safety problems, and the personal devastation that can happen when somebody is infected by E. coli, Salmonella, Campylobacter, or any other foodborne pathogen.

Stephanie Smith, who, at the time of her illness, was a 19-year-old dance instructor from Cold Springs, Minnesota, suffered an E. coli O157:H7-hemolytic uremic syndrome illness so severe that it left her paralyzed (See Dancer Paralyzed by E. coli Sues Cargill, Dec. 5, 2009).  And Linda Rivera, who was sickened from contaminated Nestle cookie dough, was just flown from a Las Vegas Hospital to a long-term rehabilitation center after almost a year-long hospitalization from her own E. coli O157:H7 infection.

But there is one particular food product that has become as much a political issue as it is an issue of food safety.  It has been the source of fierce legislative battles throughout the country; an endlessly interesting topic for bloggers and traditional media alike; and the ultimate source of a number of major personal injury cases.  It is raw milk–an unpasteurized, back-to-our-roots fluid milk product that, despite its seemingly benign persona, has raised questions about unwarranted and unconstitutional government intrusion into private affairs, and how best to spite the government’s regulatory efforts.[1]

The raging debate over raw milk is largely the product of a grassroots campaign aimed at food decentralization, which has gained a much larger voice in the wake of a long list of food poisoning outbreaks linked to mass-produced food products, including Dole baby spinach, Nestle’s cookie dough, and countless ground beef, meat, and other widely distributed products.

But the debate over raw milk is different than the debate over safe food generally because the vocal minority that consumes the product, or at least wants to, elects to either ignore the real risks associated with the product, or chooses to consume raw milk knowing full well the risks that it poses.  The latter group, in fact, is gaining many more members nationally in the wake of a string of outbreaks linked to raw milk.  Thus, at least the debate has crystallized, and now largely involves a vocal group of well-educated consumers who understand the risk, but choose to take it nonetheless.

Whatever the case, the federal government’s stand on raw milk is unequivocal.  The Food and Drug Administration bans the interstate trade of raw milk entirely; and most states heavily regulate the production and intrastate sale of raw milk, if they permit it at all.  But many raw milk proponents feel individually, and very personally, wronged by what they see as governmental meddling in private affairs–some going so far as to call the ability to purchase and consume raw milk a fundamental constitutional right:

According to the founding documents of the United States, personal liberties are self-evident and inalienable rights, not privileges endowed by state health departments, federal bureaucracies, or personal injury lawyers. There is no scientific evidence to justify the singling out of raw milk from among other foods for prohibition or damaging regulation, and there is no legitimate constitutional or philosophical basis on which Americans or anyone else should be deprived of the basic human right to determine what to eat and drink.

See http://realmilk.com/documents/ResponsetoMarlerListofStudies.pdf.

Regardless of whether one believes he should be allowed to eat whatever he wants, there exists no tool to prevent the several states and the federal government from regulating the production and distribution of raw milk.  States have the authority in the exercise of their general police powers to enact measures to protect the health, safety, and welfare of their citizens.  Brecht v. Abrahamson, 507 U.S. 619, 635, 123 L. Ed. 2d 353, 113 S. Ct. 1710 (1993); see also Sligh v. Kirkwood, 237 U.S. 52, 59-60, 35 S.Ct. 501 (1915) (“The power of the State to . . . prevent the production within its borders of impure foods, unfit for use, and such articles as would spread disease and pestilence, is well established”).  This power is bounded only by principles of federalism, generally, and by the protections afforded all persons within a state’s borders by the equal protection and due process clauses of the 14th Amendment.

The federal government, in contrast, is one of enumerated powers, meaning that it can act only where it has the constitutional authority to do so.  As James Madison wrote,

[t]he powers delegated by the proposed Constitution to the federal government are few and defined.  Those which are to remain in the State governments are numerous and indefinite.

The Federalist No. 45, pp. 292-293 (C. Rossiter ed. 1961).

Among the powers specifically delegated to the federal government is the power “[t]o regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.”  U.S. CONST. art. I, § 8, cl. 3.  The “commerce clause” has, of course, become a particularly potent regulatory enabler that, as a result, has spawned a notoriously complex body of case law.  See generally United States v. Lopez, 514 U.S. 549 (1994) (Kennedy, J., concurring).  For present purposes, however, it suffices to say that the commerce clause has provided the constitutional authority[2] for a great many landmark legislative and regulatory measures.

The commerce clause unquestionably gives Congress the authority to prohibit the interstate distribution of raw milk, by sale or otherwise, even without resort to the Supreme Court’s historically disjointed commerce clause analysis.  The reason is that the interstate distribution of raw milk is, in and of itself, “commerce . . . among the several States.”  As a result, it can be regulated “to its utmost extent.”  Gibbons v. Ogden, 9 Wheat. 1, 196 (1824).  Congress has done exactly this in enacting 21 CFR 1240.61(a), which prohibits the delivery “in interstate commerce [of] any milk or milk product in final package form for direct human consumption unless the product has been pasteurized.”

But the more intriguing question is how far Congress’s regulatory power actually extends with respect to the manufacture and distribution of raw milk.  Is it broad enough to outlaw the sale of raw milk entirely?  Stated another way, does the fact that raw milk is produced, and frequently even sold only locally (i.e. not interstate commerce per se) insulate it from Congress’s potentially, if not theoretically, apocalyptic reach?

Out of the difficult analytical framework has emerged a line of precedents approving Congress’s regulatory efforts, even with respect to intrastate commerce, that has a “substantial economic effect on interstate commerce.”  See Wickard v. Filburn, 317 U.S. 111, 125 (1942) (emphasis added).   “[E]ven if appellee’s activity be local and though it may not be regarded as commerce, it may still, whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce.”  Id.

Thus, under the Court’s current commerce clause analysis at least, the
question is ultimately whether local production and distribution of raw milk “substantially affects” interstate commerce.  Notably, there have been many seemingly local endeavors that did not harmoniously persist as “merely local” upon Supreme Court scrutiny.  See e.g., Wickard, 317 U.S. 111 (1942) (the production and consumption of home-grown wheat); Katzenbach v. McClung, 379 U.S. 294 (1964) (restaurants utilizing substantial interstate supplies); and Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241 (1964) (inns and hotels catering to interstate guests).

Without predicting the precise boundaries of Congress’s power to regulate the production and distribution of raw milk, it suffices to say that it has not come close to exhausting its potential reach by merely enacting 21 CFR 1240.61(a).  Again, the shipment of raw milk across state lines is interstate commerce in and of itself, and the power of Congress over that particular species of raw milk distribution is bounded only by an as-yet undefined, and at best highly nebulous, personal freedom to consume raw milk.  The better question is how far Congress’s reach actually extends into the modes and channels of production and distribution; and the answer is that the power is potentially very broad.

Nevertheless, proponents of raw milk are nothing if not resilient and devoted to their cause.  In the face of wide-ranging regulation of their prized product, they continue to seek out creative ways to undermine the opposition, persisting in their mantra that the intrusive efforts of the state and federal governments are acts of unwarranted, legally unjustified bullying.

In this vein, and serving as an implicit acquiescence to the constitutional authority of the states and federal governments to regulate their product, raw milk proponents continue to try to navigate the unfriendly legal waters in which they find themselves.  The result of some of their steadfast work are cow-share (or herd-share) agreements, which 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.

But, clearly, this type of despicable mislabeling would be illegal in more than just those three states, regardless of the dye requirement.  In most states, it would violate consumer protection laws; and additionally would make the job of trial lawyers representing kids who have been sickened by the product a lot easier, as the “pet food only” label is more than an implicit admission that the product is not fit for human consumption and is, as a result, unreasonably dangerous and defective.  Punitive damages, in states where they are available, would be sought with gusto.

These and other issues in the raw milk debate are not likely to go away soon; as a result, neither will the outbreaks nor the major personal injuries that can and do occur by consuming this unpasteurized product.  In the midst of all this, small-scale farmers and dairies, and other purveyors of raw milk, are well-advised to live with the regulations in place in their home states.  From a legal standpoint, there is simply no constitutional argument to be made that state and federal regulations are invalid as a class, and attempts such as the cow-share agreements and “pet food only” labeling that we have witnessed thus far only perpetuate the reality that the exchange is one that the law simply does not permit.

References:

1.  At a recent pro-raw milk symposium in Madison, Wisconsin, the keynote presentation, given by dairyman Mark McAfee, was titled “Raw milk as medicine Proudly violating FDA drug laws.”

2.  Cf. Gonzalez v. Raich et al, 545 U.S. 1, 34 (2005) (Scalia, J., concurring) (“[A]ctivities that substantially affect interstate commerce are not themselves part of interstate commerce, and thus the power to regulate them cannot come from the Commerce Clause alone.  Rather as this Court has acknowledged since at least United States v. Coombs, 37 U.S. 71, 12 Pet. 72, 9 L. Ed. 1004 (1838), Congress’s regulatory authority over intrastate activities that are not themselves part of interstate commerce [] derives from the Necessary and Proper Clause [set forth at U.S. CONST. art. I, § 8, cl. 18]).

© Food Safety News
  • aed939

    The commerce clause does not require milk to be sold for milk to be in commerce, but it does require a transfer in ownership (with or without consideration) of the milk (not just change in possession).
    You correctly stated that milk in commerce does not require consideration, but then incorrectly concluded that all milk transported is in commerce.
    Opponents of raw milk compare share ownership to commerce, but often do not discuss that it is an extension of cow boarding. There is a clear line between share ownership and commerce in that the cows (and milk excreted from said cows) are property of the shareholders, and it is legal for anyone to possess and transport this property to its owners. Also, there is no clear line between share ownership and whole cow boarding all the way down to milking your own cow.

  • Judith Paterson

    If a healthy adult wants to make the decision to drink raw milk despite all the evidence that the supposed benefits are outweighed by the possibility of contracting a serious food borne disease; fine, let them. Make sure their insurance company is aware that they engage in reckless activity. Any parent feeding raw milk to their children with any subsequent illness due to the raw milk (must be proven) should be charged with child endangerment. We need to nip this in the bud. It’s all well and good for people living in farm country, who come in contact with pathogens on a regular basis and have developed appropriate immune responses, to drink raw milk. But townies and city folk should not be swayed by the rhetoric. Cow’s milk is not a natural food source for the human race. If it was, large numbers of the population would not be lactose intolerant. Milk Pasteurization came about because of the TB epidemic. It was halted when programs such as pasteurization came into play. Tea baggers don’t want people to have free health insurance? Well, I don’t want my hard earned money to pay for health care for those individuals, who recklessly endangered themselves and others by drinking raw milk.

  • Lindsay Harris

    This is nuts! No one has died from raw milk in 30 years. The Center for Disease Control’s website lists fewer than 2000 illnesses during that time, despite their own estimate that hundreds of thousands of Americans drink raw milk regularly. Even when you adjust the stats to reflect illnesses vs rates of consumption, you are 10x more likely to get listeriosis from sliced deli meat than from a glass of raw milk. Why such hype and drama? Why not target all the moms waiting at the deli line with your anti-pathogen crusade? Why so emotional? The stats just do not come close to supporting your assertion that raw milk is a “public health threat”.

  • jshaw

    It would be nice if the “media”, as, i’m assuming, Food Safety News would like to be known and journalists (ditto Mr. Falkenstein) would provide us with facts rather than a biased, emotional diatribe. This is not serious or professional, it’s verbal diarrhea, apparently attributed to a glass of raw milk…

  • jshaw

    upon a little research, it appears that the author is an attorney specializing in bringing legal action on behalf of the supposed victims of food-borne illness. that puts his opinions in a much clearer context. nothing like the conflict of money to raise the ire of a litigator.
    how about a little disclosure on the part of the FSN? trying to hide?

  • http://www.foodsafetynews.com sschreck

    Hi John,
    Thank you for your comments. Each author byline is linked to more information about the author. Unfortunately, Drew’s bio was not showing up on his author page earlier, but the link to his bio on the Marler Clark Website should have been visible to you. His bio is now available on Food Safety News.

  • John Shaw

    It would be nice if the “media”, as, i’m assuming, Food Safety News would like to be known and journalists (ditto Mr. Falkenstein) would provide us with facts rather than a biased, emotional diatribe. This is not serious or professional, it’s verbal diarrhea, apparently attributed to a glass of raw milk…

  • John Shaw

    upon a little research, it appears that the author is an attorney specializing in bringing legal action on behalf of the supposed victims of food-borne illness. that puts his opinions in a much clearer context. nothing like the conflict of money to raise the ire of a litigator.
    how about a little disclosure on the part of the FSN? trying to hide?

  • Doc Mudd

    It is odd, indeed, for proponents of raw milk to argue that their “right” to procure and consume a potentially faulty or dangerous product is being usurped. The point of regulating the product is not to limit one’s freedom to consume, so much as it is to temper one’s willingness to sell hazardous merchandise to an unassuming or misquided public. No different, really than restricting the sale of fireworks or the sale of electrical appliances that are not UL tested. It happens, too, that we generally approve of outlawing the sale of alcohol and tobacco to minors (who, it is understood, are inclined to make naive decisions and are particularly gullible and vulnerable to misinformation). Notably, we frown upon even giving these products to minors free-of-charge.
    .
    Keep a cow and consume her milk, as you wish; no harm, no foul. Sell unpasteurized milk without authorization and face the consequences, as you should. Purchase contraband unpasteurized milk and feed it to children at your own legal peril and, worse, at the child’s peril of serious illness.
    .
    What are the “freedom to consume” sophists really after, what is their real agenda? Their presenting argument simply doesn’t hold water.

  • http://www.foodsafetynews.com Suzanne Schreck

    Hi John,
    Thank you for your comments. Each author byline is linked to more information about the author. Unfortunately, Drew’s bio was not showing up on his author page earlier, but the link to his bio on the Marler Clark Website should have been visible to you. His bio is now available on Food Safety News.

  • Matt Jaqua

    Ms. Harris, your statement about the relative risk of listeria from deli meat versus illness from raw milk sounds pretty outlandish. Could you share your calculations?
    Mr. Shaw, your description of this dry recitation of legalese as an emotional diatribe is a bit bizarre. Compare it to the linked article from Weston Price, and tell us which seems to be based in fact versus fantasy.

  • http://ORGANICPASTURES.COM MARK MCAFEE

    Bill Marler,
    Raw Milk is a medical food…it is prescribed by many doctors in CA that work very intelligently and consciuosly to build the immunity of children and actively stabilize the MAST cells to prevent their deaths from Asthma. This is hard core advanced medicine at its preventative best. These doctors have a full tool box with all therapies available.
    5200 people die each year when they are treated with FDA approved Asthma drugs. Corticosteriods desolve bones.
    Move over modern medicine with its side effects that kill hundreds of thousands per year….here comes raw milk and it heals people and prevents drug profits and instead pays farmers and helps real people.
    What is truly sad is that the disconnect between healing and medical foods is so complete that the FDA ignores their value entirely. Instead….they support the ongoing carnage created by greed and Wallstreet Pharma drug pushing….
    Yes….I am damn proud to use my first Amendment rights to tell the truth about medical foods. It is not only a moral obligation…it is ethically imparative.
    This is a war…the body count is real. The FDA has blood on its hands.
    Lets take a moment of silence for the victums of:
    Avandia….80,000 deaths in ten years.
    Celebrex and VIOXX….tens of thousands of deaths…
    The war is real and the body bags are full. But not becasue of raw milk…because of FDA corruption and greed. The war will continue until the people in America wake up and through dollar voting chose food to heal themselves and prevent disease.
    There is a reason why Jamie Oliver, Alice Waters, Joel Salatin, Sally Fallon and others and being listened to.
    Follow the FDA and you die…..
    Follow the truth and you live….
    Mark

  • jshaw

    Matt:
    Your depiction of the article as “recitation of legalese” tells me that you either did not read the article carefully or cannot distinguish between fact and opinion. The author is, without questions biased against raw milk, which I do not fault him for. His opinion is his own, no matter how he makes his living. My quam is that he has inserted his opinions as fact.
    It is more appropriate to preface an opinion with “in my opinion” rather than stating an opinion as though it were tried and true. His use of “highly illegal” and “despicable” should have been prefaced appropriately.
    As for WAPF, I’ll agree with you that the organization is just as likely to provide opinions and unsubstantiated claims as any.
    Wouldn’t it be nice if everyone just stuck to the facts? Let’s talk about what’s real and include our opinions as opinions…

  • John Shaw

    Matt:
    Your depiction of the article as “recitation of legalese” tells me that you either did not read the article carefully or cannot distinguish between fact and opinion. The author is, without questions biased against raw milk, which I do not fault him for. His opinion is his own, no matter how he makes his living. My quam is that he has inserted his opinions as fact.
    It is more appropriate to preface an opinion with “in my opinion” rather than stating an opinion as though it were tried and true. His use of “highly illegal” and “despicable” should have been prefaced appropriately.
    As for WAPF, I’ll agree with you that the organization is just as likely to provide opinions and unsubstantiated claims as any.
    Wouldn’t it be nice if everyone just stuck to the facts? Let’s talk about what’s real and include our opinions as opinions…

  • Ruth Ann Foster

    Drew,
    Correction – pet milk sold in North Carolina does not have to be denatured with dye. We successfully reversed the rule that would have made it a requirement. Although NC has lost over 98% of their dairies, one and two cow operations are springing up all over the state. Divide and conquer. This trend will not be stopped! Real food for the people.

  • cherah

    Until the day comes when they have totally banned cigarettes, cigars, whiskey, vicodin, lipitor, avandia, plavix, abilify, seroquel, zoloft, zyprexia, ambien and chantix, then we can outlaw raw milk. All of these products are dangerous, cause suicidal and homicidal rages, destroy livers and kidneys and heart attacks, strokes and death as side effects. All things that are opening cited on TV.
    The also need to ban hamburger cleansed with ammonia to kill the salmonella and all factory meat farms that allow the animals to live in their own feces and have to be shot up full of antibiotics to stay alive until sent to market.
    Cows are being fed chicken waste full of feces, distillery waste products and whatever else is deemed cheap and plentiful, as long as it fattens the bottomline and saves money.
    It’s a crying shame that a government agency that is supposed to be looking out for the people, sells the people out every chance it gets.
    In short the FDA and the Dept of Ag are hypocrites and liars.
    All they truly care about is playing along with big pharma and factory farms to ensure they keep their profits and that there is no competition or complaints to get in the way.
    How do you get people to obey laws when the watchdog breaks the laws and lies about doing it?
    The FDA is a two bit pharma whore who is trying salvage it’ reputation by attacking anything healthy and nourishing for the people!

  • http://foodsafetynews jon

    Judith:perhaps you would consider driving your kids to school-child endangerment then: due to the chance that it could possibly harm them if by chance they would end up in a collision.People act like a few outbreaks is the plague.I feel bad that it has happened but then again look at all the pasturized milk deaths and sickness from other foods. People may have recklessly endangered their immune systems by eating all the garbage that the fda considers safe.No its probably not for everyone but probably most if they would consider changing their diets for better health and restructure their immune systems. People dont want to end up dead or sick but its the risk in life we take everyday from what we eat breath think and are exposed to in a world of profit and greed.

  • Judith Paterson

    Jon -
    Yes, I would consider driving my kids to school, child endargement if I failed to put them in an approved car seat or buckle them in. Milk pasteurization came into being for the express purpose of preventing disease from ravaging our country and it still is done to that purpose. Whether by diet or living conditions our immune systems have already been compromised. To move backwards in methodology will cause multiple outbreaks of severe illness before any benefits are felt as our immune systems catch up. I don’t want my family to suffer so that in the long run we may have better immune systems. Drs prescribing raw milk as a medical food may be one of the better ideas as the patient would be monitored as their immune system is built-up. Let adults make informed choices – they do not have the right to force those choices on their children or uninformed others when it is scientific fact that raw milk may harbor dangerous pathogens.
    We live in a world that is half riddled with disease and the other half sterilized – comingling the two cause illness and outbreak. There are healthier and safer foods to consume – keep milk pasteurized.

  • http://foodsafety jon

    Judith:
    Its a fact that any food may harbor dangerous pathogens and there are far more dangerous foods.Compare the number of people that drink raw milk to the number of sickness/or deaths.You would have to agree thats its more dangerous to drive your car than to get ill from raw milk.This year just in Iowa there were (just) 117 deaths from highway accidents and this is considered a good year based on less people driving because of the economy.No I dont think it should be mass produced but I think it should be available to those seeking the benefits from it.Just remember raw milk is alkaline and pasterized milk is acidic.An alkaline body promotes wellness and inhibits degeneration of aging as well as disease.Shure there are healthier and safer foods but just look at how safe these healthy foods have become being recalled all the time.Do people eat spinach with a little fear? Probably.If you know where it comes from the better.Eat local and eat safe.You should have a right to know whats in your milk oxidated powders hgh synthetic vitamins and whatnot. If you consider not knowing what is really in your food and how its processed at the likes of profit and not health value,then i dont know how one would consider that safe.

  • Rob

    I just finished reading the “Untold Story of Milk”. Gives some good insight into raw and pasteurized milk.