Page 100 - Fall2020

RAW MILK UPDATES by Pete Kennedy, Esq.
WISCONSIN - NOW IS THE TIME TO EXPAND RAW MILK ACCESS
Often a state doesn’t have to change its laws to increase access to raw milk and other nutrient-dense foods;
all it needs to do is interpret the law differently. That is currently the case in Wisconsin. There are two exemptions
in Wisconsin law to the general prohibition on the sale of raw milk; a favorable interpretation of the exemptions
by the state Department of Agriculture, Trade and Consumer Protection (DATCP) would better enable dairy
farmers to make a living while expanding consumer freedom of choice. The timing couldn’t be better.
The decline in the number of Wisconsin dairy farms continues unabated. On January 1, 2018, there were
8,801 licensed dairy farms in the state; as of August 1, 2020, just two years later, that number had declined to
7,049. Higher pay prices in the past year or so have not been enough to enable many farmers to remain in busi-
ness due to debt racked up when pay prices bottomed out in the five years prior.
Since the Covid crisis hit in March, demand for raw milk and other foods direct from the farm has increased
for licensed and unlicensed dairies. The increase in demand is coming during a time when raw milk’s track record
for safety continues to improve. A 2018 study found that the rate of unpasteurized milk-associated outbreaks in
the U.S. has been declining since 2010, despite increasing legal distribution. Controlling for growth in population
and consumption, the outbreak rate has effectively decreased by 74 percent since 2005. The study looked at
outbreaks from 2005 to 2016; the number of outbreaks attributed to raw milk consumption has continued to
decline since then.
In 2008, DATCP issued the regulation providing the two exemptions. One of the exemptions is for licensed
producers and allows individuals who have a bona fide ownership interest in a legal entity (other than an indi-
vidual or a married couple) holding a milk producer license to obtain raw milk. DATCP has never specifically
defined what constitutes a “bona fide ownership interest.” Prior to the regulation, DATCP approved a half dozen
or so Grade A dairies where consumers could obtain raw milk in the dairy by purchasing a non-voting share for
a nominal fee in the dairy holding the milk producer license.
As far as is known, there have not been any dairies to this point that have operated under the exemption;
there is one dairy currently trying to get under the exemption by having a consumer cooperative hold the milk
producer license. Under Wisconsin law, each member of the cooperative would have an ownership interest in
any property belonging to the cooperative (e.g., the milk producer license). The cooperative model is a way to
raise a substantial amount of money to qualify the investment in the license as a bona fide ownership interest.
The second exemption under which both licensed and unlicensed dairies could sell raw milk would be the
on-farm incidental sale of raw milk, an exemption the state legislature created over 60 years ago. The 2008
regulation states that “a sale is not incidental if it is made in the regular course of business, or is preceded by any
advertisement, offer or solicitation in the regular course of business, or is preceded by any advertising, offer or
solicitation made to the general public through any communications media.” The statute creating the incidental
sales exemption, however, had no prohibition on advertising.
DATCP has never defined what the “regular course of business” is, but now is a good time to interpret the
term in a way that is favorable to the state’s struggling dairies. Any sale of raw milk by licensed dairies that mainly
produce raw milk for pasteurization should be incidental; DATCP could take a more liberal approach as well in
determining what an “incidental sale” is by an unlicensed dairy. What exactly is the regular course of business
in the economy that has materialized during the Covid crisis?
DATCP interim Secretary Randy Romanski has made an effort to help livestock producers by attempting to
increase access to slaughterhouses and to markets; he has an opportunity to help dairy farmers by adopting an
interpretation of the raw milk exemptions that is more favorable to the farmers’ interests. With the increased
demand for raw milk during Covid, the improved safety track record for raw milk in recent years and the con-
tinued loss of dairy farms in the state, the time is now.

INFORMATION RESOURCE FOR WAPF MEMBERS
Consult with Pete Kennedy on state laws, regulations and policies including food freedom legislation and issues regarding
consumer access to raw milk, cottage foods and on-farm meat and poultry processing. (Pete cannot give individual legal
advice or recommend support for or opposition to pending legislation.) Contact Pete at pete@realmilk.com.

98 Wise Traditions FALL 2020