There’s more than one way to skin a cat. That’s especially true when looking at how states are tangling with the dilemma of how to regulate the sale of raw milk. Even though federal law requires any milk that’s sold across state lines to be pasteurized and prohibits the sale of raw milk across state lines, state lawmakers are free to write their own regulations for sales within their borders. raw milk for sale sign Raw milk is milk that hasn’t been pasteurized with heat to kill pathogens such as E. coli, Salmonella, Listeria and campylobacter. The controversy comes because many raw-milk advocates tout it as a natural, clean product that offers a wide range of health benefits, among them preventing digestive upsets and asthma. Many also say it’s a matter of  food freedom — that consumers should be free to choose what they drink or eat. On the other side of the fence, public health officials warn that drinking raw milk isn’t worth the risk of becoming ill — sometimes very ill — and that young children, the elderly and those with suppressed immune systems are especially vulnerable to infections from pathogens that raw milk might contain. Yet demand for raw milk continues to rise, with raw-milk dairy farmers pointing to increased sales, and in some cases, the need to increase their herd size to meet that demand. MIXED BAG OF REGS It’s not surprising then that different states have tangled with this in different ways and come up with sometimes vastly different regulations. Currently 12 states allow the sale of raw milk in retail stores, according to Seventeen states permit raw milk sales on farms. Four states allow raw milk acquisition through cow-share agreements and in the 17 remaining states all sales of raw milk are prohibited. Under cow-share agreements, sometimes referred to as herd shares, consumers own all or part of a cow, goat or herd and pay the farmer for boarding and milking. The consumer isn’t actually buying the raw milk because he or she owns all or part of the animal, and therefore its milk. The list of state regulations covering raw milk isn’t cast in concrete. Raw-milk advocates — a determined, and oftentimes, a very vocal lot — continue to press their case. In 2012 Colorado amended its regulations, forbidding the sale of raw milk and adding an allowance for cow-share dairies. Under that new twist, the state made it clear that this “contractual” agreement between the farmer and the consumer doesn’t include requirements for the state to inspect the farm or test the milk. The Colorado law does require the dairy to let the herd-share members know about how the animals are being taken care of and how the milk is testing out. The contract between the dairy and the herd-share owners must also include a signed statement by the consumer saying he or she is aware of the potential dangers, including death, associated with drinking raw milk. In other words, Colorado puts full responsibility on the members of the cow-share dairy. The safety clause at the end of Colorado’s revised reg says the revision is  “necessary for the immediate preservation of the public peace, health and safety.” It didn’t go that way in West Virginia last year when the governor vetoed the sale of raw milk through herd shares even though the House of Delegates had voted 81-19 in favor. The governor said he nixed it because it would pose “a serious risk to public health.” He also pointed out that a product with the risks associated with raw milk “should be subject to more supervision that merely requiring a person to release the seller from liability for such risks.” Supporters vowed to try again during this legislative session, even though a recent health initiative, which offers advice about raw milk, vaccines and clean indoor air, says that raw milk is not a healthy option. In Tennessee, state officials don’t know how many herd shares are in operation because, as one official told Food Safety News in 2013, the state doesn’t track them or regulate them. WHAT ABOUT GRADE A STANDARDS? The question arises: What about licensed raw-milk dairies that produce raw milk that meets their state’s requirements for Grade A milk, as is the case in California, Washington state, Pennsylvania and a handful of others? In those states, the state inspects the dairies and tests their milk to make sure it meets those standards. Raw-milk dairies that pass muster are allowed to sell their milk in stores and other retail outlets. “Californians are increasingly interested in locally produced foods and agricultural products,” according to The California Department of Food and Agriculture’s regulatory requirements for the distribution of raw milk state. The department has received “a growing number of questions from people interested in distributing or obtaining raw milk produced within their own local community.” Bottomline, no dairy in California can sell, give away, deliver or knowingly purchase or receive any milk or product of milk that doesn’t meet the state’s Grade A standards. But herd-share operations in California don’t have legal status when it comes to distributing their milk. Not that many aren’t pushing for changes to this. As for cleanliness, California and other states that allow the retail sale of raw milk that meets Grade A standards, require inspections of the dairies and testing of the milk. Among other requirements, raw milk may not contain more than a certain amount of coliform bacteria — a type of bacteria that indicates that there may be sanitation issues. In addition, raw milk containers must bear a label that warns of the potential dangers of consuming raw milk. According to the California agriculture department, conformity with these standards not only minimizes the risk of foodborne diseases but is also “essential for maintaining a fair and equitable business environment.” Mark McAfee, who owns Fresno-based Organic Pastures, one of the largest organic raw-milk dairies in the United States, doesn’t believe Grade A standards should be considered the benchmark when it comes to the safety of raw milk produced for human consumption. “Grade A is a standard that is intended for processing milk (that will be pasteurized) but not raw milk for humans,” he said. “There needs to be a standard for raw milk for human consumption. Grade A is not that standard.” McAfee said Grade A standards allow for very high levels of bacteria and the milk is “never ever tested for pathogens.” In contrast, California state standards for raw milk for humans require very low bacteria counts (the same as would be achieved through pasteurization) and zero pathogens at any time. “These are two completely different standards. Grade A standards are intended for milk that will be pasteurized. Of course, if the milk is pasteurized, then who cares,” he said, adding that pasteurization will kill the bad bugs nearly all of the time. But since that’s not the case with raw milk, it’s extremely important that raw milk be tested for sanitation-indicator bacteria counts and pathogens on a more frequent basis. Which is exactly what his dairy does. Every day. And he points to leading-edge technology that is helping raw-milk dairies embrace better food-safety practices — such as a type of rapid-test science approved by the Food and Drug Administration. Thanks to the new science, he said, the dairy’s “test and hold program” is working great and catches potential issues before the milk goes into commerce. “No products are released prior to knowing they are pathogen-free,” he said. “This rapid and accurate testing break-through technology was developed just in the last couple of years and proactively reduces the risk of raw milk consumption dramatically.” And though in the past his dairy was involved in some outbreaks and recalls, McAfee said “the face of his dairy has changed now that technology has evolved to allow for 11-hour tests for pathogens.” Marcie McBee, co-owner of a herd-share dairy near Knoxville, Tenn., which was linked to an E coli outbreak in 2013, agrees with McAfee about Grade A standards. Before she started McBee Dairy Farm, she and her husband had a commercial Grade A dairy for seven years. “Grade A standards aren’t so great,” she said, referring to the food safety needs of a raw milk dairy. After the outbreak, she received advice from McAfee and put in test-and-hold equipment. She said business continues to increase. Their herd share, made up of 35 cows and 18 goats, has 250 families as members. Another nearby raw-milk dairy has about the same number of members. “We have loyal followers,” she said. “The demand is definitely there. In the past two years, we’ve had to close our herd share two times.” McAfee has increased his milking herd to 550 cows and said demand has been growing 12 percent each year. RAW MILK INSTITUTE In 2011, McAfee helped launch the Raw Milk Institute in response to what the institute’s website refers to as a “nutritional civil rights movement.” “Consumers are searching for farmers who can supply unprocessed, clean raw milk … and most farmers lack training and education, and have little guidance from nonexistent or conflicting standards,” according to the website. The institute laments that the FDA and other government agencies refuse to acknowledge that there are “two raw milks in America” — raw milk produced for pasteurization and raw milk intended to be consumed raw. The goal of the institute is to get raw-milk producers on the same page so they can provide consumers with safe milk. It supports common core standards, which include risk analysis and management plans, quality standards and testing frequency. No pathogens allowed. McAfee said there are 19 dairies, including his own, that are certified by the institute. The certification helps achieve a totally different risk profile for raw milk, he said.   (To sign up for a free subscription to Food Safety News, click here.)