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.