October 6, 2015

To Ban Or Not to Ban: The Legal Battle Over Raw Milk

Emily Sohn

Emily Sohn

Freelance Journalist


Sohn-Winch-rawmilk-2015In Alaska, it’s legal but only for your pets. In Oregon, you are allowed to buy it from a farm that has a maximum of two cows, nine sheep and nine goats that make it. In Kansas, you can have it as long as the farm doesn’t advertise it too much. And in Minnesota, you can get it if you go to the farm and bring your own containers.

Raw milk has long polarized scientists, politicians, farmers and food advocates, who disagree about both its health consequences and the government’s right to control access to it. Driving those debates are a dizzying variety of laws that get challenged often and change frequently — making it extremely difficult to know which kind of raw-milk regulations do the most to keep people safe.

“There are a lot of people in public health who feel sternly that making it more difficult for people to get raw milk saves illnesses and lives,” says Bill Marler, a Seattle-based attorney who specializes in foodborne illness litigation and publishes Food Safety News. “And I think people can argue the opposite way: that if we made it more easily accessible and regulated, it might make it safer. It’s tough.”

Raw milk does not undergo pasteurization, a heating process that kills disease-causing pathogens like E. coli and Salmonella. And because it’s easy for bacteria to sneak into milk from feces or udder infections, public health experts tend to oppose raw milk. But supporters of raw milk believe that pasteurization also kills beneficial bacteria and enzymes that deliver many health benefits, and that, regardless, people should be able to decide for themselves what they eat and drink. Farmers, meanwhile, can make bigger profits from selling raw milk to consumers than to processors, and complying with complicated regulations can put them out of business. In the meantime, demand for raw milk continues to grow alongside pressure on politicians to increase access to it.

Caught in the middle is a legislative quagmire. For decades, the U.S. Food and Drug Administration has banned the sale of raw milk across state lines. But states get to decide what happens within their borders, and years’ worth of clashes in disparate political climates have produced a mishmash of laws. In about 20 states, the sale of raw milk for human consumption is illegal altogether. On the other end of the spectrum are liberal policies like in California and Washington, where raw milk can be sold in grocery stores, as long as farms meet strict rules.

In between are places where consumers can buy raw milk directly from farmers — with a wide variety of stipulations about how that can work. Many states, including New Hampshire, Arizona, and Texas, require raw milk to meet limits on bacteria counts if farms sell more than a certain amount of it, though regulations often differ in what pathogens they test for, how often inspections occur, or if inspectors show up at all, says David Gumpert, author of The Raw Milk Answer Book: What You REALLY Need to Know About Our Most Controversial Food. Some states allow sales at farmers’ markets. Some require warning labels. And some limit the number of animals farmers can own, or they only legalize the sale of raw milk from goats.

Kentucky and Rhode Island, meanwhile, require prescriptions from a physician to drink raw goat’s milk. Georgia is one of four states that allow sales of raw milk for pets only — and nobody reports how often owners share their dogs’ supplies. Connecticut, Indiana, Colorado and others permit consumers to buy shares of cows or herds, giving them private ownership of milk that circumvents the complexities of regulating sales. “I like to say that you have 50 states,” Gumpert says, “and you have 50 different sets of regulations when it comes to raw milk.”

Because laws are so varied and change so frequently, it can be difficult to say for sure how policies influence health outcomes, a connection that’s also hard to make because experts suspect that many illnesses caused by unpasteurized milk go unreported. Still, recent studies have documented major risks from drinking what advocates call “real” milk.

Compared to pasteurized milk, for example, raw milk is 150 times more likely to cause illness, researchers from the Centers for Disease Control and Prevention reported in 2012. Last year, a team from Johns Hopkins Bloomberg School of Public Health reviewed 81 published studies on unpasteurized milk and found evidence of dangers without any clear nutritional advantages or other benefits, like the often-argued reduction of lactose intolerance. “The articles we reviewed clearly suggest that the risk of microbial hazards in raw milk is substantially higher than in pasteurized milk,” the authors wrote. ”If consumption of raw milk increased, then the number of illnesses would quickly outpace those attributed to pasteurized milk.”

Easier access also seems to lead to bigger problems, according to a new study that looked at 81 outbreaks of serious illnesses linked to raw milk over the last decade. More than 80 percent of those occurred in states where sales of raw milk are legal, the CDC reported in January in Emerging Infectious Diseases. Fifteen outbreaks happened in states that ban sales but four of those were linked to cow-share set-ups. In other cases, people got their supplies from neighboring states that allow it and then illegally crossed borders.

The study also documented a rise in outbreaks linked to raw milk from two percent of all food-related outbreaks between 2007 and 2009 to five percent between 2010 and 2012. And although the researchers couldn’t say for sure what caused the spike, it coincided with an increase in the number of states that made raw milk legal — from 22 in 2004 to 30 in 2011. The number of states that allowed cow shares also increased from 5 to 10 during the study period. Last year, about 20 states considered new legislation, Gumpert adds, and most of those proposals pushed making raw milk easier to get.

“The more raw milk becomes accessible, we keep seeing more outbreaks and illnesses associated with it,” says CDC epidemiologist Hannah Gould. “To make milk safe, I think you should pasteurize it.” Organizations that echo that sentiment include the American Academy of Pediatrics and the U.S. Food and Drug Administration, which advise against drinking it.

Just as Prohibition made people creative about finding sources of alcohol, though, restrictive legislation also tends to send raw-milk devotees underground. Minnesota raw-milk drinkers have sustained shipping and delivery networks with drop-sites in garages – a system that goes on despite a crackdown in recent years. Even in Wisconsin, where selling raw milk is illegal, farmers continue to supply and even deliver it, Gumpert says, sometimes across state lines, despite repeated lawsuits. And a major bust in 2012 highlighted the dedicated efforts of a Pennsylvania farmer to distribute unlabeled raw milk to customers in Maryland and Washington, D.C.

Because raw-milk advocates are determined to keep drinking, no matter what the laws say, some experts speculate that the most effective legislation for protecting the greatest number of people will go beyond banning access and instead focus on ensuring safety through rigorous inspections, communication, and education. Marler recommends a carefully regulated system that would require farms to carry insurance in case of illness and clear warning labels on bottles. In states that allow retail sales, “you have raw milk right next to organic free-range milk that’s pasteurized, and the bottles look the same,” he says. “Sometimes I think people get confused about what raw milk really means.”

Illustration by Alexander Winch, 2015.

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This work by Emily Sohn and the Johns Hopkins Center for a Livable Future is licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International License.
Based on work at www.livablefutureblog.com. Images in this post are included in the Creative Commons license.

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