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Article By
R. Drew Falkenstein
Marler Clark LLP PS
Marler Clark

Raw Milk: An issue of Safety or Freedom?

Thursday, April 15, 2010

One need not look far to grasp the scope of this country’s food safety problems, and the personal devastation that can happen when somebody is infected by E. coli, Salmonella, Campylobacter, or any other foodborne pathogen. Stephanie Smith, who, at the time of her illness, was a 19-year-old dance instructor from Cold Springs, Minnesota, suffered an E. coli O157:H7-hemolytic uremic syndrome illness so severe that it left her paralyzed. And Linda Rivera, who was sickened from contaminated Nestle cookie dough, was just flown from a Las Vegas Hospital to a long-term rehabilitation center after almost a year-long hospitalization from her own E. coli O157:H7 infection.   

But there is one particular food product that has become as much a political issue as it is an issue of food safety. It has been the source of fierce legislative battles throughout the country; an endlessly interesting topic for bloggers and traditional media alike; and the ultimate source of a number of major personal injury cases. It is raw milk—an unpasteurized, back-to-our-roots fluid milk product that, despite its seemingly benign persona, has raised questions about unwarranted and unconstitutional government intrusion into private affairs, and how best to spite the government’s regulatory efforts.[1]  

The raging debate over raw milk is largely the product of a grassroots campaign aimed at food decentralization, which has gained a much larger voice in the wake of a long list of foodpoisoning outbreaks linked to mass-produced food products, including Dole baby spinach, Nestle’s cookie dough, and countless ground beef, meat, and other widely distributed products. 
 
But the debate over raw milk is different than the debate over safe food generally because the vocal minority that consumes the product, or at least wants to, elects to either ignore the real risks associated with the product, or chooses to consume raw milk knowing full well the risks that it poses. The latter group, in fact, is gaining many more members nationally in the wake of a string of outbreaks linked to raw milk. Thus, at least the debate has crystallized, and now largely involves a vocal group of well-educated consumers who understand the risk, but choose to take it nonetheless. 
 
Whatever the case, the federal government’s stand on raw milk is unequivocal. The Food and Drug Administration bans the interstate trade of raw milk entirely; and most states heavily regulate the production and intrastate sale of raw milk, if they permit it at all. But many raw milk proponents feel individually, and very personally, wronged by what they see as governmental meddling in private affairs—some going so far as to call the ability to purchase and consume raw milk a fundamental constitutional right: 
 

According to the founding documents of the United States, personal liberties are self-evident and inalienable rights, not privileges endowed by state health departments, federal bureaucracies, or personal injury lawyers. There is no scientific evidence to justify the singling out of raw milk from among other foods for prohibition or damaging regulation, and there is no legitimate constitutional or philosophical basis on which Americans or anyone else should be deprived of the basic human right to determine what to eat and drink.  See http://realmilk.com/documents/ResponsetoMarlerListofStudies.pdf. 

 
Regardless of whether one believes he should be allowed to eat whatever he wants, there exists no tool to prevent the several states and the federal government from regulating the production and distribution of raw milk. States have the authority in the exercise of their general police powers to enact measures to protect the health, safety, and welfare of their citizens. Brecht v. Abrahamson, 507 U.S. 619, 635, 123 L. Ed. 2d 353, 113 S. Ct. 1710 (1993); see also Sligh v. Kirkwood, 237 U.S. 52, 59-60, 35 S.Ct. 501 (1915) (“The power of the State to . . . prevent the production within its borders of impure foods, unfit for use, and such articles as would spread disease and pestilence, is well established”). This power is bounded only by principles of federalism, generally, and by the protections afforded all persons within a state’s borders by the equal protection and due process clauses of the 14th Amendment.    
 
The federal government, in contrast, is one of enumerated powers, meaning that it can act only where it has the constitutional authority to do so. As James Madison wrote,
 

[t]he powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite.The Federalist No. 45, pp. 292-293 (C. Rossiter ed. 1961). 

 
Among the powers specifically delegated to the federal government is the power “[t]o regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” U.S. CONST. art. I, § 8, cl. 3. The “commerce clause” has, of course, become a particularly potent regulatory enabler that, as a result, has spawned a notoriously complex body of case law. See generally United States v. Lopez, 514 U.S. 549 (1994) (Kennedy, J., concurring). For present purposes, however, it suffices to say that the commerce clause has provided the constitutional authority[2] for a great many landmark legislative and regulatory measures. 
 
The commerce clause unquestionably gives Congress the authority to prohibit the interstate distribution of raw milk, by sale or otherwise, even without resort to the Supreme Court’s historically disjointed commerce clause analysis. The reason is that the interstate distribution of raw milk is, in and of itself, “commerce . . . among the several States.” As a result, it can be regulated “to its utmost extent.” Gibbons v. Ogden, 9 Wheat. 1, 196 (1824). Congress has done exactly this in enacting 21 CFR 1240.61(a), which prohibits the delivery “in interstate commerce [of] any milk or milk product in final package form for direct human consumption unless the product has been pasteurized.”
 
But the more intriguing question is how far Congress’s regulatory power actually extends with respect to the manufacture and distribution of raw milk. Is it broad enough to outlaw the sale of raw milk entirely?  Stated another way, does the fact that raw milk is produced, and frequently even sold only locally (i.e. not interstate commerce per se) insulate it from Congress’s potentially, if not theoretically, apocalyptic reach?
 
Out of the difficult analytical framework has emerged a line of precedents approving Congress’s regulatory efforts, even with respect to intrastate commerce, that has a “substantial economic effect on interstate commerce.” See Wickard v. Filburn, 317 U.S. 111, 125 (1942) (emphasis added).  “[E]ven if appellee’s activity be local and though it may not be regarded as commerce, it may still, whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce.” Id. 
 
Thus, under the Court’s current commerce clause analysis at least, the question is ultimately whether local production and distribution of raw milk “substantially affects” interstate commerce. Notably, there have been many seemingly local endeavors that did not harmoniously persist as “merely local” upon Supreme Court scrutiny. See e.g., Wickard, 317 U.S. 111 (1942) (the production and consumption of home-grown wheat); Katzenbach v. McClung, 379 U.S. 294 (1964) (restaurants utilizing substantial interstate supplies); and Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241 (1964) (inns and hotels catering to interstate guests). 
 
Without predicting the precise boundaries of Congress’s power to regulate the production and distribution of raw milk, it suffices to say that it has not come close to exhausting its potential reach by merely enacting 21 CFR 1240.61(a). Again, the shipment of raw milk across state lines is interstate commerce in and of itself, and the power of Congress over that particular species of raw milk distribution is bounded only by an as-yet undefined, and at best highly nebulous, personal freedom to consume raw milk. The better question is how far Congress’s reach actually extends into the modes and channels of production and distribution; and the answer is that the power is potentially very broad.
 
Nevertheless, proponents of raw milk are nothing if not resilient and devoted to their cause. In the face of wide-ranging regulation of their prized product, they continue to seek out creative ways to undermine the opposition, persisting in their mantra that the intrusive efforts of the state and federal governments are acts of unwarranted, legally unjustified bullying. 
 
In this vein, and serving as an implicit acquiescence to the constitutional authority of the states and federal governments to regulate their product, raw milk proponents continue to try to navigate the unfriendly legal waters in which they find themselves. The result of some of their steadfast work are cow-share (or herd-share) agreements, which seek to insulate purveyors of raw milk from state and federal regulation by allowing consumers to purchase shares in a specific cow or herd instead of paying money directly for milk. The logic, of course, is that state and federal regulation cannot reach this conduct because it does not involve the specific sale of raw milk. 
 
I have addressed these agreements before, concluding:
 

Truly, to call a cow share agreement a species of legal maneuvering may be giving too much credit to an effort that is designed either to flout the law entirely, or at the very least avoid the often stringent requirements associated with licensure.  In reality, cow shares are poorly disguised attempts to accomplish something that is, in most states, patently criminal.  As a result, when judging whether such conduct constitutes the sale or distribution of raw milk, courts are likely to approach these cases with a healthy dose of realism in determining what the parties' true intent was, whether the forum be civil or criminal court. See http://www.foodsafetynews.com/2009/11/skirting-the-law-with-cow-share-agreements/

 
Many states have confronted cow and herd-share agreements head-on, and most have closed the legislative loophole by specifically outlawing the practice. But not even that has deterred proponents of raw milk; it has, in fact, forced some into ever-more-dangerous, and highly illegal, distributive schemes, including placing a “pet food only” label on raw milk that they know, or have reason to know, will or may be consumed by human beings. Alaska, Colorado, and North Carolina require raw milk to be dyed before being marketed as pet food in order to address this problem specifically. 
 
But, clearly, this type of despicable mislabeling would be illegal in more than just those three states, regardless of the dye requirement. In most states, it would violate consumer protection laws; and additionally would make the job of trial lawyers representing kids who have been sickened by the product a lot easier, as the “pet food only” label is more than an implicit admission that the product is not fit for human consumption and is, as a result, unreasonably dangerous and defective. Punitive damages, in states where they are available, would be sought with gusto. 
 
These and other issues in the raw milk debate are not likely to go away soon; as a result, neither will the outbreaks nor the major personal injuries that can and do occur by consuming this unpasteurized product.  In the midst of all this, small-scale farmers and dairies, and other purveyors of raw milk, are well-advised to live with the regulations in place in their home states. From a legal standpoint, there is simply no constitutional argument to be made that state and federal regulations are invalid as a class, and attempts such as the cow-share agreements and “pet food only” labeling that we have witnessed thus far only perpetuate the reality that the exchange is one that the law simply does not permit.   
[1] At a recent pro-raw milk symposium in Madison, Wisconsin, the keynote presentation, given by dairyman Mark McAfee, was titled “Raw milk as medicine Proudly violating FDA drug laws.” 
[2] Cf. Gonzalez v. Raich et al, 545 U.S. 1, 34 (2005) (Scalia, J., concurring) (“[A]ctivities that substantially affect interstate commerce are not themselves part of interstate commerce, and thus the power to regulate them cannot come from the Commerce Clause alone. Rather as this Court has acknowledged since at least United States v. Coombs, 37 U.S. 71, 12 Pet. 72, 9 L. Ed. 1004 (1838), Congress’s regulatory authority over intrastate activities that are not themselves part of interstate commerce [] derives from the Necessary and Proper Clause [set forth at U.S. CONST. art. I, § 8, cl. 18]).
Copyright © 2019 Marler Clark

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About this Author

Drew Falkenstein Attorneys Marler Clark Law Firm
R. Drew Falkenstein
Associate

Drew Falkenstein joined Marler Clark in January, 2004 and has concentrated his practice in representing victims of foodborne illness. He has litigated nationwide against some of the biggest food corporations in the world, including Dole, Kellogg’s, and McDonald’s. He has worked on landmark cases that have helped shape food safety policy, HACCP protocol, and consumer rights, such as the E. coli outbreak in fresh spinach in 2006 and the 2008 Peanut Corporation of America outbreak of Salmonella.

A frequent speaker for the not-for-profit organization...
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