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Raw Milk Archive

Raw Milk Liabilities and Independent Certification

August 15, 2014

by Jack Hornickel

NPR recently highlighted a new tool for raw milk producers: third-party quality control standards and independent certification. The Raw Milk Institute (RAWMI), a non-profit that supports a strong and safe raw milk industry, has published safety criteria for raw milk producers. If farmers meet RAWMI’s Common Standards and draft an adequate Risk Analysis and Management Plan, they can be listed on the RAWMI website as exemplar producers of “reliable, clean raw milk.” Doctors, veterinarians, epidemiologists, farmers, and consumers all participated in developing the safety measures.

The Common Standards include water and milk testing that probes for the presence of coliforms, salmonella, listeria, and E. coli. They also require testing the dairy herd to ensure the animals are free of tuberculosis and brucellosis. The Risk Analysis and Management Plans are developed uniquely for each farm. Generally they must address contamination risks that occur during animal transportation, cleaning of milk containers, management of bedding and manure, feed storage, and contact with farm employees. The Plan mandates responsible reflection on the entire dairy process and seeks to identify all points where contamination can occur, thereby mitigating risk.

By mitigating the risk that a consumer may become ill, RAWMI’s standards should also minimize exposure to civil lawsuits. However, compliance with such voluntary standards will not immunize a raw milk producer from civil liability or from criminal liability where raw milk sales are illegal. Because raw milk laws are different in each state, the independent certification offered by RAWMI will have varying effects depending on the location of the farm.

In New York, for example, dairies can sell raw milk from the farm after receiving a license. The standards for obtaining a license are similar to the RAWMI Common Standards but require additional testing for staphylococcus and organisms that cause mastitis in dairy cows. New York also requires farmers to post a sign reading, “Raw milk does not provide the protection of pasteurization.” Thus, raw milk producers that are independently certified by RAWMI are well on their way to being licensed by the state. By taking a few extra steps, farmers would be shielded from criminal liability.

New Jersey is another story. In that state, all sale of raw milk for human consumption is illegal. The RAWMI certification will do nothing to protect a New Jersey producer from criminal prosecution. In fact, listing on the RAWMI website is likely to draw attention to the illegal enterprise, and the paper trail of bacterial testing and food safety plans is evidence that can be used in a prosecution. Here, independent certification would raise the chances of criminal liability, despite the farmer’s honest attempt to provide safer food.

Now for the final twist: RAWMI’s standards will have only a minimal effect on farmers’ civil liability. In every state, raw dairies face strict liability in civil lawsuits for harms caused by the food products they sell. If anybody becomes sick from consuming a raw milk product, the producer can be held liable for the consumer’s injuries, even if the producer followed the highest safety standards. Raw dairies, like all food producers, have an absolute duty to make a safe product. The only effects RAWMI’s certification could have in a civil lawsuit might be to insulate the farmer from a negligence claim, an alternate theory on which a consumer could sue, as well as punitive damages.

RAWMI’s certification is a practical step forward, falling short of a legal solution. The Common Standards and Risk Analysis and Management Plan are a laudable attempt to legitimize and create industry-wide standards for the raw milk industry. However, they will have varying effects on farm liabilities, and farmers still must continue to navigate the patchwork of state laws. For a comprehensive guide to state raw milk laws, visit the Farm-to-Consumer Legal Defense Fund website.

The Increasing Incidence of Raw Milk Outbreaks

April 18, 2012

Earlier in the week, Food Safety News ran a piece by the great Bill Marler on why we are seeing so many raw milk outbreaks lately. He was immediately referring to the Oregon outbreak vectored to Foundation Farms, and a similar outbreak in several counties in Missouri. I’ve got my Google News Alerts set to sniff out “Raw Milk” articles and I too have noticed that my daily queue is always full. A good 70% of the stories are illness-related.

Whether you are a raw milk proponent or a public health scold, Marler poses an excellent question.

Product popularity has to play a part in the increase we are seeing. For better of for worse, the market for raw milk has become the beneficiary of a die-hard group of consumers and their zeal for the product is drawing in new producers. More producers, more milk, more outbreaks – simple arithmetic.

Yet it’s still pretty shocking that raw milk producers are not doing more to turn out safer product. Besides pasteurization, vastly improved handling practices should be able to at least slow the rates of illness we are seeing.

The reason we are seeing more outbreaks also stems from ignorance of the law. Even in states where selling raw milk is legal, dairies still have to face strict liability in civil court for the harm caused by their products. If farmers had a better understanding of the almost-absolute duty the law imposes on them to make food that is safe to eat, they would either leave the raw milk business altogether or implement the technologies and practices that would lower the overall incidence of infection. The up-tick in outbreaks tells us neither is being done, and that is a shame for the farmers who may have to part with land to compensate the sick.

Cari Rincker and I will be covering some of these topics in our upcoming CLE, “Counseling the Local Food Movement“. Check us out on May 10, especially if you are an attorney who would like to begin advising some raw milk producers on the comprehensive issues they’ll have to contend with when they get into the business.

Federal Judge: Raw Milk Cow Shares “Merely a Subterfuge” for Direct Sale

February 15, 2012

The law continues to erode the effectiveness of the cow share arrangements that are designed to circumvent raw milk regulations. A federal judge has just enjoined Rainbow Acres Farm, a Pennsylvania dairy, from utilizing a cow share system to distribute milk across state lines into Maryland. The case opinion of Judge Lawrence Stengel, federal court judge in the Eastern District of Pennsylvania, is now available online.

Not only did the court refuse to acknowledge sharing arrangements as a means to circumvent federal regulation, it didn’t really entertain any argument to the contrary.  Judge Stengel disapproved of the scheme via a mere footnote:

“15. The contract between Mr. Allgyer and persons entering into a cow share agreement is merely a subterfuge to create a transaction disguised as a sale of raw milk to consumers. The practical result of the arrangement is that consumers pay money to Mr. Allgyer and receive raw milk, which is transported across state lines and left at a “drop point.” As such, despite any artful language, the agreement involves the transfer of raw milk for consideration, which constitutes a sale and is lawfully regulated by the FDA.”

Usually, when a judge wants to make an important point in an opinion, he or she will call that point a ‘holding’ in the main body of the opinion, which is a way of saying ‘I think I just made an important legal judgment that might be applicable in other similar cases and I want my words to be a guidepost for subsequent decisions’. Invalidating Rainbow Acres distribution scheme in a footnote is another way of saying that a cow share is so transparent a sham that it is not really worth discussing at all. It’s the judicial equivalent of “whatevs”.

We are at the tail end of the long arc of the cow share. Raw milk was prohibited in the 80s. Cow share were first utilized on a very limited basis in the 90s. They gained popularity in the ‘oughts, and regulators and public health officials have only begun to push violators through the courts within the last 4 or 5 years. We are just starting to see state and federal courts come around to rendering their thoughts on them, and the news is not good for raw milk proponents. The worm has turned. It is time for raw milk advocates to rethink their activism strategy and transition from judicial intervention to legislative action.

Milk Prices and the “Greek Yogurt Effect”

February 9, 2012

As a result of the exploding demand for Greek-style yogurts, processors like Chobani and Fage are dramatically expanding their processing facilities within New York State. I started to wonder if the state’s dairy farmers were doing better off as a result. Milk policy and pricing is terra incognita to me, so I had to lean on some friends to explain to me the relationship between aggregate demand and the prices which dairy farmers receive for their toil.

Doreen Barker of Barrows Farm did some fancy footwork in a recent blog post that answered some of my questions about what the near-term future will look for dairy farmers in the state

I also have to thank Lorraine Lewandrowski for sending me a series of articles that appeared last year in Farmshine, a weekly dairy publication available only in print. Authors Tammy Graves and Sherry Bunting did such a good job of reporting on the relationship between greek yogurt, milk policy, and dairy demand that it is a shame the articles are not widely available on-line. With their permission, I have put them up here in PDF format. Must read!

Mailbox Price and Milk Demand In New York State, By Sherry Bunting

Dairy Processing in New York: The Good, the Bad and the Ugly , by Tammy Graves and Sherry Bunting.

I cannot link to Part Two of The Good, The Bad, and The Ugly because the PDF size is over my meager limit, but here is a key quote:

Despite this news, New York’s mailbox milk prices, as report- ed by USDA, lag the U.S. average most months since 2008 (see graph). And, when central New York producers compare milk checks with colleagues elsewhere in the state, net returns do not fare well in the comparisons. Class I utilization and location dif- ferential zones are part of this equation. But putting it all togeth- er, New York’s mailbox milk price has lagged the U.S. average mailbox milk price beginning markedly in 2008 and continuing through the recent first quarter of 2011.

So far, it looks like the dairy farmers are not seeing any appreciable gain from the increased demand for their products. The “Greek Yogurt Effect?” There isn’t one.

Raw Milk and the Law – Wisconsin

January 18, 2012

Yet another farmer faces fines for not following his state’s raw milk laws. From what I gather from the article, the farmer in question sought to avoid regulatory liability by using a cow-share arrangement to distribute dairy products to fellow members.

As I covered in my recent raw milk article in Cornell’s Small Farms Quarterly, the effectiveness of informal schemes which are designed to avoid pasteurization requirements are highly questionable. The legality of cow-share and other “moo-n shine” arrangements vary from state to state and they usually fail. Anyone who contemplates selling raw milk has to take these uncertainties into account and build them into a business and distribution plan. A comprehensive risk management analysis, especially for raw milk, must extend beyond product safety and production standards. Regulatory compliance is itself a form of risk management. It deserves the equal weight and attention as a HACCP plan or the good agricultural practices that a farmer adopts.

Raw milk engenders some very strong opinions from all sides. For every eager dairy producer scheming to circumvent the law, there is an equally zealous public health advocate or agricultural department inspector looking to hand out a hefty fine. A farmer may feel very earnestly that he or she has done nothing wrong by selling a raw dairy product, but there is a high probability a district attorney or state regulators will strongly disagree. If so, the fines are inevitable.

If you disagree with the law, that is fine, but tempting regulators with sketchy schemes is just about the worst form of advocacy there is. Failing to honestly assess, without bias, how the law may adversely view your agricultural activity is also bad business. It is certainly no way to bring about change in the law.

Raw Milk

September 7, 2011

Whenever I get in front of a group of people to talk food law, raw milk always comes up. My Google reader picks up at least a story a day on the subject.  Politics aside, if you think about raw milk as an agricultural practice, it is easy to understand why it is such an important subject to small scale farmers in particular. The economics of raw milk seem pretty good. It’s a great source of revenue for small, diversified farms. Selling it requires no expensive processing equipment or additional capital investment. Due to its scarcity, and due to the general affluence of those who seek to purchase it, raw milk also has a relatively high price per gallon. It is a great way to boost farm profits with limited to no investment.

In the states where the sale of raw milk is illegal, farmers and raw milk retailers are targets. The government’s regulatory response has become increasingly shrill and disproportionately aggressive lately. For those dairy farmers operating on the black market, they should be prepared for serious consequences if caught.

Even in those states where it is legal to sell raw milk, a farmer should still think twice before putting it on the market. They have to put teir food-freedom politics aside and make an informed, dispassionate, rational business decision. Raw milk producers needs to carefully assess their risks.

As a general rule, food producers face strict liability in civil court for the foods they produce, process, or sell to the public. That means that a dairy farmer bears the legal risk should his or her product make someone sick, regardless of how safely and carefully he or she handled the product.

There are a few wacky, homespun arrangements farmers use to try to protect themselves from strict liability, like the cow-share arrangement or putting a “pet food” label on the product. They do not work. This guy smashes through flimsy constructs like these for a living.

In this hostile legal environment, you’d have to have an awful lot of faith in the sterility of your product in order to feel secure in selling it. The actuarial uncertainty of selling raw milk vs. pasteurized milk is borne completely by the dairy operator.

When a HACCP plan or Good Agricultural Practices cannot protect you, a food lawyer can. Legal counsel can help you identify and mitigate the liabilities of selling raw.

A solid, well defined corporate structure may help to protect your personal property from judgments resulting from a food borne illness case. If you do make someone sick, you will probably lose. You don’t, however, have to lose everything if you have planned properly. There are many creative and effective ways to combine various corporate forms and lease agreements to significantly pare-down your exposure to claims.

It might also be a good idea to talk about manipulating the size and scale of each lot of product you produce. Co-mingling the milk from fewer cows in a single bottling tank may expose fewer consumers to potential pathogens.

Selling raw milk is, overall, a pretty risky endeavor. To sell it without having a serious risk management discussion with your legal counsel is absolutely insane. It is a viable business but it needs to all be done right.