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. 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. Of those states that prohibit the sale of raw milk outright, or allow it only by licensed dairies, 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.
 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
 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.
 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.