Page 107 - Spring2018

RAW MILK UPDATES by Pete Kennedy, Esq.

NEW JERSEY – MORE REASON TO LEGALIZE RAW MILK SALES
The New Jersey Department of Health (NJDH) has been busy recently on the raw milk front. In one investigation
NJDH sent cease-and-desist letters to various dropsites at private residences. The dropsites were allegedly distributing
raw milk and raw milk products to customers of an out-of-state dairy. In another action, NJDH was investigating a New
Jersey-based food buyers co-op obtaining raw milk from multiple out-of-state producers. The department was trying
to determine which of the producers was responsible for an illness caused by the consumption of raw milk. The two
cases represent an opportunity for the state to evaluate its law prohibiting the sale and distribution of raw milk and
acknowledge that the law needs changing.
The cease-and-desist letters threatened the families operating the dropsites with fines for distributing raw milk. This
isn’t the first time NJDH has taken this kind of action. In 2007, NJDH also sent cease-and-desist letters to individuals
having dropsites at their residences. The difference from the investigation eleven years ago is that NJDH sent letters to
considerably more dropsites this time around—not surprising since demand for raw milk has been consistently increas-
ing for years. Otherwise law-abiding citizens will do what they have to do in order to obtain raw milk in states like New
Jersey where the sale is banned; whether NJDH will admit that or not, it’s the reality.
In the case of the food buyers co-op, NJDH was having a difficult time trying to determine which dairy was respon-
sible for making a member of the club ill with brucellosis. There were media reports discussing the NJDH investigation
but none reporting that the department had identified the producer responsible for the illness; it is clear that NJDH
was having problems with traceability.
If you combine the growing demand for raw milk among New Jersey residents along with the traceability issue NJDH
has been having with out-of-state dairies, it would be a good move for the state to consider legalization. An appropriate
first move for the state would be to allow by policy the distribution of raw milk through herdshare agreements; under
herdshare contracts, raw milk consumers obtain an ownership interest in the dairy animal(s) enabling them to obtain
raw milk and hire the farmer to board, care for and milk those animals. Herdshare programs are closed-loop arrange-
ments in which there is a high level of traceability if there is a suspected illness—something NJDH should appreciate
after what it has been through.
New Jersey dairy farmers have lost millions of dollars in potential revenues to Pennsylvania raw milk producers
(there are less than seventy Grade A dairies left in the state) but that never moved the state government to end the
prohibition on raw milk sales and distribution. What could change the state’s position though is the difficulty its health
department had in conducting an investigation of foodborne illness, combined with the fact that demand for raw milk
among New Jersey residents will only continue to further increase. Allowing the distribution of raw milk through an
arrangement outside the stream of public commerce would be a good first step for the state.

VIRGINIA – VICTORY OVER HERDSHARE THREAT
Joel Salatin said, “If this is not reminiscent of David and Goliath, I don’t know what is,” referring to the defeat of
two bills posing a major threat to the future of herdshare programs in Virginia. Virginia Farm Bureau, Virginia Agribusi-
ness Council and the Virginia State Dairymen’s Association all supported the legislation, but grassroots mobilization
against the bills led by the Virginia Independent Consumers and Farmers Association (VICFA) won out with an assist
from members of the Weston A. Price Foundation (WAPF) and other food freedom advocates.
Herdshare agreements are private contractual arrangements in which someone purchases an ownership interest in a
dairy animal (or herd of dairy animals) and pays a fee to a farmer for boarding, caring for and milking the animal(s). The
owner has the property right to obtain raw milk from the animal(s). It’s legal to purchase ownership in a dairy animal
and it’s legal to obtain milk from a dairy animal you co-own. Herdshare programs have been flourishing in Virginia for
many years.
Last month, legislators carrying out the agenda of industrial agriculture introduced House Bill 825 and Senate Bill
962 in the Virginia legislature. While the bills officially legalized herdshares [currently there is nothing in the Virginia
Code on herdshares], they were an attempt to intimidate both consumers and farmers from either entering into or con-
tinuing on with herdshare agreements. Each bill stipulated that violating any of its requirements would be first-degree
misdemeanors with criminal penalties of up to one year in jail and twenty-five hundred dollars in fines; every day the
violation continued would be a separate offense. Both farmers and consumers could have been found guilty of a crime
for not turning over copies of their contracts to government agencies. Both bills stated it was illegal for anyone besides
the party to the herdshare contract to receive raw milk; in other words, giving raw milk to family or guests would be a
crime according to the wording in the bills.
To scare consumers away from signing contracts, there was a requirement in both bills that the herdshare agree-
ments contain a clause stating that shareholders assumed joint liability if the herd or any milk produced by the herd

SPRING 2018 Wise Traditions 105