by: Pete Kennedy Esq.
Raw (unpasteurized) dairy products, except for cheese aged 60 days, are the only foods prohibited for human consumption in interstate commerce. The ban was a result of a 1986 federal district court decision ordering the U.S. Food and Drug Administration (FDA) to issue a regulation establishing the prohibition; Congress, the people’s branch of government, had no input. Raw milk prohibition has been about as successful as alcohol prohibition. You know you have a bad law when otherwise law-abiding citizens violate that law with regularity; thousands obtain raw milk from across state lines on a weekly basis in this country. FDA stated in a court document that it will not enforce the ban against individuals crossing into other states to purchase raw milk.
With the interstate ban, it was left for each state to decide on whether to legalize raw milk sales or distribution. In 1998, Sally Fallon Morell, president of the Weston A. Price Foundation (WAPF), along with other raw milk activists formed A Campaign for Real Milk, a movement whose goal was to establish universal access to raw milk—including the legalization of raw milk sales and distribution in all 50 states. The year A Campaign for Real Milk started up, there were 27 states that had legalized raw milk sales or distribution, specifically meaning that a dairy farmer could earn income either by selling raw milk for human consumption, selling it for pet consumption, or distributing the product through a herd share agreement (i.e., a contractual arrangement by which someone purchases an ownership interest in a dairy animal or a herd of dairy animals and is entitled through that ownership to a percentage of the milk production). Today that number stands at 45 states.
The federal and state laws prohibiting raw milk sales are economic protections for the conventional dairy industry under the guise of protecting public health (I will discuss raw milk’s track record for safety below). Raw milk has been at the center of contention between local food systems and the industrial food system—an industrial system with an accelerating lack of quality and transparency. Raw milk is the gateway product that draws consumers to the farm; once there, they might purchase other foods such as meat, poultry, eggs, and produce. Likewise, pasteurized milk—being a perishable item—is a draw bringing customers to the supermarket and, once there, they will purchase other items as well.
During the decade from 2004 to 2013, federal and state agencies engaged in numerous investigations, enforcement actions, and prosecutions of raw milk farmers and distributors. In a 2013 court case receiving widespread national publicity, a jury acquitted raw milk farmer Vernon Hershberger on three of four criminal charges brought against him by the state of Wisconsin for alleged violations of the state food and dairy code. Since the Hershberger case, enforcement actions against raw milk farmers, while still occurring, have declined. Raw milk producers and consumers today owe a debt of thanks to those who suffered through government investigation and enforcement in fighting to uphold freedom of choice and the right of family farms to make a living selling raw dairy products.
Over the same 2004–2013 period, state governments took many enforcement actions against raw milk producers and distributors. In Ohio, an undercover agent for the Ohio Department of Agriculture (ODA) entrapped a dairy farmer into accepting a two-dollar donation for a gallon of milk the farmer was willing to give free to the agent—prior to joining the Ag department, the agent had worked for a northern Ohio drug task force. As a result of the incident, the ODA revoked the farmer’s Grade B license to sell milk to cheese manufacturers; however, subsequent public outrage over the sting operation was so great that ODA ended up issuing the farmer a Grade A license to sell his milk (selling Grade A milk is a bump up in pay from selling Grade B milk).
In Michigan, state police and agents from the Michigan Department of Agriculture (MDA) pulled over a truck driven by a farmer who was on the way to make delivery to members of a food buyers club. MDA confiscated thousands of dollars of raw dairy products and other foods. At the same time this was happening, other MDA agents were executing a search warrant on the farmer’s premises and home, extending their search to the farmer‘s bathroom to find contraband. Shortly after the raids, MDA made a criminal referral to a county prosecutor against the farmer for violations of the state food code. Nearly 200 members of the food buyers club sent messages to the prosecutor describing how the food from the farmer had benefited their health and requesting that the prosecutor not bring charges. The prosecutor told the farmer and MDA to make a deal on their own; eventually the two parties settled, enabling the farmer to continue delivering raw milk to his club members. The case launched a six-year process of meetings among raw milk producers, consumers, MDA officials, the dairy industry, and academia that eventually led to the adoption of a written policy by MDA effectively legalizing the distribution of raw milk within the state through herd share agreements.
In a multi-state raid, agricultural officials from Kentucky and Ohio and the police shut down raw milk delivery from a herd share farmer to his shareholders in a Cincinnati parking lot. The police browbeat the farmer, trying to get him to admit he was illegally selling raw milk. After the interrogation, the shareholders noticed the farmer looked ill and requested that the police call 911; the response from one of the police officers present was, “I am 911 so shut the hell up.” A short time later, the farmer suffered a seizure, collapsing on the pavement. Public anger over the raid was great enough that neither the Kentucky nor the Ohio state governments sought to undertake any subsequent enforcement against the farmer, who continued his herd share operation. (See The Raw Milk Revolution and Life, Liberty and the Pursuit of Food Rights, both by David Gumpert, for more information on government enforcement actions against raw milk producers and distributors.)
The bias against raw milk from federal, state, and local regulators during those years was farcical. Inspectors in white hazmat suits raided a Kentucky health food store to remove containers of raw milk from the store’s refrigerator shelves. One government official referred to raw milk as the “white liquid substance.” A dairy regulator was quoted as saying that he would rather drink gasoline than drink raw milk. John Sheehan, while head of FDA’s Division of Plant and Dairy Food Safety, said, “Raw milk should not be consumed by anyone at any time for any reason.”
Fallon Morell commented, “Progress is made one retirement at a time.”
Despite all the government and industry opposition, legalization of raw milk sales and distribution as well as access to raw milk continued to increase. There were several reasons for this. The first was having raw milk producers and distributors who were willing to undergo government harassment and potential criminal enforcement to provide healthy food to their customers. Those who fought against unjust laws governing raw dairy include Vernon Hershberger, Max Kane, and Dan Siegman in Wisconsin; Richard Hebron, Joe Golimbieski, and Jenny Samuelson in Michigan; Paul Schmitmeyer and Arlie Stutzman in Ohio; David Hochstetler in Indiana; Mike Hartman, Alvin Schlangen, and Dave Berglund in Minnesota; Gary Oakes and John Moody in Kentucky; and Mark Nolt in Pennsylvania. The success of these individuals in fighting government actions against them and remaining in business received national attention and generally led to more favorable government policies toward raw milk.
Two other farmers who have endured government enforcement actions are Mark McAfee in California and Michael Schmidt in Canada; aside from Fallon Morell, McAfee and Schmidt have done more to promote demand for raw milk in North America than anyone. McAfee has been tireless in testifying before state legislators and regulators about the benefits of raw milk; he is currently president of the Raw Milk Institute (RAWMI), an organization formed to educate dairy farmers about producing quality safe raw milk. Schmidt became a North American icon through nonviolent resistance to almost 30 years of government enforcement actions for producing high-quality raw milk for his grateful patrons at Glencolton Farm in Durham, Ontario.
The second reason for the expansion in access to raw milk and increased legalization of raw milk sales and distribution throughout the country was the activism of mothers with young children, also known as the “mama lions,” many of whom were WAPF members. These raw milk mothers were often women who had children with health problems or had health problems themselves. Once they discovered that raw milk improved their health condition or that of their children, they weren’t going to be denied access to the product, no matter what the law said. The mama lions were the constituency for raw milk that legislators and regulators least wanted to deal with if they were on the opposite side of the issue. These mothers would pack a legislative committee room for a hearing on a raw milk bill; they would fill up a courtroom if a raw milk farmer was on trial. Their children also attended the trials; judges commented during at least a couple of those trials on how well behaved the children were. If inspectors had raided their raw milk farmer, the mama lions would flood the regulatory agency responsible with phone calls, faxes, and emails letting the agency know how they felt about the raid. Maureen Diaz, mother of nine, gave a memorable speech at a Pennsylvania conference—with her baby daughter on her back—lambasting the Pennsylvania Department of Agriculture for draconian enforcement actions it had taken against her raw milk farmer.
Mama lions would also take to the streets to rally in support of raw milk. Liz Reitzig, a Maryland mother of five, led several successful rallies, including one at the entrance of FDA headquarters in Silver Springs, Maryland, and others at the criminal trials of Hershberger and Schlangen. The FDA rally involved raw milk moms and others who obtained raw milk in Pennsylvania and drove it across state lines to FDA headquarters, where they consumed it on site. FDA issued a press release in response to the rally reiterating its policy not to take enforcement action against individuals crossing state lines to obtain raw dairy for themselves and their families—a policy previously stated in the court record of a lawsuit filed by the Farm-to-Consumer Legal Defense Fund (FTCLDF).
The three main arguments raw milk proponents advanced in trying to change laws on raw milk sales and distribution were freedom of choice, enabling small family farmers to make a better living, and food safety. The most successful argument in changing the law has consistently been freedom of choice. The mama lions have been the driving force behind it.
The third reason for the success of the raw milk movement has been the work of WAPF (westonaprice.org) and FTCLDF (farmtoconsumer.org). Fallon Morell was the founder of both organizations. With WAPF, she established a chapter leader system; there are now hundreds of chapters and chapter leaders in the U.S. and abroad. The main job of the chapter leaders is to find sources of raw milk and other nutrient-dense foods for those who contact them looking for healthy food. The chapter leader system helped meet and grow the demand for raw milk; a number of chapter leaders (as well as other WAPF members and nonmembers) set up food buying clubs making it easier for consumers to obtain raw milk. The website for A Campaign for Real Milk (realmilk.com) owned and managed by WAPF also connected raw milk farmers and consumers; today, there are over 2,000 raw milk vendors listed on the site. Through action alerts WAPF sent to its members on pending raw milk bills, the Foundation also helped marshal support for legislative initiatives. In addition to testifying at a number of hearings on raw milk, Fallon Morell compiled a library of resources on raw milk science and benefits. The late Dr. Ted Beals MD, who had the largest database in the country on illnesses attributed to raw milk consumption, was an effective expert witness for both WAPF and FTCLDF in legislative hearings and court cases.
While WAPF’s job was to find sources of raw milk, it was FTCLDF’s mission to protect those sources. The Legal Defense Fund’s work focused on protecting raw milk farmers from state and federal enforcement actions. FTCLDF helped level the playing field, making it more difficult for government agencies to grind farmers down and deplete them of resources through initiation of judicial and administrative hearings. Usually if the Fund took on a case to represent a raw milk farmer, the cost of representation for the farmer would be nothing more than the farmer’s annual membership fee. FTCLDF litigators Gary Cox and Elizabeth Rich worked for much less than they would have charged in the private sector, enabling the Fund to take on a greater caseload. The Hershberger case is the best example of this advantage. The case consisted of numerous pre-trial hearings and a five-day trial; the cost to FTCLDF was a fraction of what the State of Wisconsin spent on its prosecution and what a private law firm would have charged for representing Hershberger.
In its early years, FTCLDF took on a big caseload representing raw milk farmers, providing representation even in cases where the farmer had little chance of winning due to a poor fact situation legally. If the farmer was sticking his neck out for the right cause, FTCLDF would provide representation. What would happen sometimes is that the raw milk farmer would lose the case yet carry on with the same activity that had landed him in trouble in the first place, only this time the government would leave him alone, possibly realizing that FTCLDF would be there again to represent the farmer if the state brought another court action.
Even though FTCLDF usually spent its time in court defending raw milk farmers, it has filed two different lawsuits against FDA challenging the interstate raw dairy ban. In the first lawsuit, FDA made the then jaw-dropping statements that there was no fundamental right to feed yourself and your children the food of your choice and there is no right to your own bodily autonomy—the latter statement unfortunately no longer being that surprising in light of the events of the past two years.
FTCLDF has also worked on the drafting and support of raw milk legislation and policy; like WAPF, it has found that, in some cases, it hasn’t taken all that many people working on a measure to effectuate change in state raw milk law or policy.
Thanks to the federal interstate ban on raw milk for human consumption, state statutes and regulations on raw milk sales and distribution are a hodgepodge of laws. Around a dozen states allow the sale of raw milk in retail stores. Other states only allow raw milk sales on the farm; one such state has a gallon limit on how much milk can be sold per month while another limits sales to raw goat milk. Some states only allow the sale of raw milk for pet consumption; other states ban sales for either human or pet consumption but allow the distribution of raw milk via herd share agreements through statute, regulation, or policy.
Five states currently ban dairy farmers from selling or distributing any raw milk—Hawaii, Iowa, Louisiana, Nevada, and Rhode Island. The laws in Nevada and Rhode Island technically allow the sale of raw milk, but the reality is that the hurdles the two states require dairies to navigate have prevented producers in either state from selling raw milk in compliance with the law. There is no prohibition on the consumption of raw milk in any state, begging the question: how do consumers exercise their legal right to obtain the product in states where the sale or distribution of raw milk for human consumption is illegal?
As for the sale or distribution of raw dairy products other than milk or cheese aged at least 60 days (legal in all 50 states), the trend has been for gradual legalization in recent years. Value-added products are where the money is; where a farmer can take a gallon of milk and process it into four quarts of yogurt or kefir, the farmer can substantially increase revenues. The dairy processors lobby has fought against legalization of the sales of raw dairy products (other than milk) for years, but recently the resistance has been decreasing. About half the states have legalized the sale or distribution of raw cream; around a quarter of states have allowed the sale of raw butter, kefir, and yogurt. Several states have legalized the sale or distribution of raw milk ice cream and cheese aged less than 60 days.
With many other foods—whether because of federal law (e.g., the Federal Meat Inspection Act and the Federal Poultry Products Inspection Act) or federal money distributed to state health and agriculture departments from FDA and USDA through cooperative agreements—state law is identical or similar to federal law. In contrast, the interstate raw dairy ban has enabled states to be more independent in crafting laws. The FDA non-enforcement of the ban against individuals crossing state lines to obtain raw dairy has given consumers an option in most states where its sale or distribution is prohibited or limited. Considering FDA’s animus toward raw milk and the agency’s abuse of its powers in making life difficult for and harassing producers of aged raw cheese (well chronicled in Kathryn Donnelly‘s book Ending the War on Artisan Cheese), the interstate ban has arguably helped more than hurt access to raw milk.
For the most part, demand for raw milk has consistently gone up over the years, but at no time has the demand exploded like it did in 2022. Again, the driver for the spike has been mothers with young children. The latest surge in demand started in February when Abbott Nutrition shut down its Michigan plant producing infant formula after the consumption of that product was linked to several illnesses and deaths. Fallon Morell said that traffic on the WAPF webpage containing a recipe for a raw milk infant formula went up 1000% shortly after the Abbott plant shutdown. At Realmilk.com, the dedicated website of A Campaign for Real Milk, there is a “Real Milk Finder” section where consumers looking to obtain raw milk can go to see if there is a nearby producer in their state. Since the shutdown, as many as 100,000 new users a month have gone to realmilk.com to find a source for raw milk. The increase in demand along with the engineered drought throughout much of the U.S., leading to lower milk production, have created shortages in many areas of the country. Prices for raw milk run as high as $28 per gallon.
While many dairy farmers producing raw milk for direct consumption have more customers than they can handle, farmers producing raw milk for pasteurization in the conventional dairy industry continue to suffer. Fifty years ago, there were over a half million dairies in the U.S. Today, there are 29,000—with failed dairies becoming the victims of both a federal pricing system cheating dairy farmers and a long-term decline in demand for fluid pasteurized milk. There are now states such as Montana where there are more dairies producing raw milk for direct consumption than there are Grade A dairies producing commodity milk (i.e., raw milk for pasteurization).
Selling raw milk direct to the consumer is a way to break free from the chains of a commodity system, but unfortunately, with the propaganda from the conventional dairy industry, the government, and the medical profession about the health risks of consuming raw milk, seemingly only a small number of Grade A dairies have moved to selling raw milk direct. Even organic dairy farmers who have a considerably higher cost of production than conventional dairies—without a correspondingly higher pay price—haven’t shown significant interest in selling direct. The ruling establishment, with its push toward dairy alternative nut milks and now synthetic milk, wants to shrink the dairy industry as much as possible if not altogether eliminate it under the guise of climate change. Maintaining independence by selling direct to consumers instead of to a cooperative is a way to survive this push.
The medical establishment and government have been trying to scare the public about raw milk for decades with warnings and contrived “studies”—including one that claimed people were 150 times more likely to become ill drinking raw milk than pasteurized milk, bringing to mind the adage that “there are lies, damn lies, and statistics.“ Dr. Beals often said that the number of raw milk illnesses was so low that it was impossible to establish any pattern as to what caused them. A 2018 Canadian study tracking raw milk illnesses from 2005 to 2016 in the U.S. found that, as the demand for raw milk increased, the number of illnesses attributed to its consumption remained flat or actually even declined. One thing for sure is that, as time has gone on, the public has paid less attention to warnings about raw milk from FDA, the Centers for Disease Control and Prevention (CDC), and the medical profession, especially in 2022.
State mandatory pasteurization laws, starting with Michigan in 1949 and continuing into the 1990s, have heavily contributed to the depletion of small family farms in the countryside of rural America. Reversing that trend, the adoption of state laws and policies legalizing raw milk sales and distribution over the past 15 to 20 years has been a key part in the growth of a parallel local food system during that time; there is no more food more “local” than raw milk. When states pass laws governing the sale and distribution of other foods in interstate commerce that are independent of federal laws and federal money, those laws are a path to strengthening local food systems and improving health. In the face of great opposition from the federal government, the public health sector, and the medical profession, raw milk has been a symbol of state sovereignty and individual freedom; and the increase in legal access to raw dairy products continues one state and one consumer at a time.
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