Page 102 - Summer2020final

RAW MILK UPDATES by Pete Kennedy, Esq.

SOUTH CAROLINA - PROPOSED REGULATIONS TO LEGALIZE RAW DAIRY PRODUCT SALES
On March 27, the South Carolina Department of Health and Environmental Control (DHEC) issued a draft rule
to legalize the sale of raw cream and raw buttermilk in the state by licensed dairies. According to a DHEC official, a
dairy had been taking advantage of a loophole in the law in recent years by selling raw cream and raw buttermilk.
Instead of closing the loophole, DHEC is moving to legalize the sale of the two raw dairy products. DHEC has long
been one of the friendlier government agencies regulating raw milk in the country. The DHEC official said it was
possible the department could expand the current rulemaking to include other raw dairy products.

UTAH - RAW BUTTER AND CREAM SALES NOW LEGAL
On March 25, Governor Gary Herbert signed House Bill 134 (HB 134) into law. The bill legalizes the sale of
raw butter and raw cream in Utah; HB 134 took effect immediately. Representative Kim Coleman (R) was the lead
sponsor for the legislation.
With the Utah law taking effect, there are now around twenty states that allow the sale or distribution of raw
cream for human consumption; around a dozen states allow the sale or distribution of raw butter. There are at least
two other states considering the legalization of raw butter sales.
The United States Food and Drug Administration (FDA) remains the greatest roadblock to the legalization of raw
dairy products in the U.S. On February 27, the FDA rejected a petition to lift the interstate ban on raw butter filed by
the Farm-to-Consumer Legal Defense Fund and Mark McAfee, the biggest producer of raw butter and cream in the
country. In its rejection letter, one of the agency’s justifications for maintaining the prohibition was that raw butter
was responsible for a foodborne illness outbreak occurring on average every seven or eight years; a standard that,
if applied consistently across our food supply, would make many foods illegal in interstate commerce. As time goes
on, an increasing number of states will no longer side with the FDA, taking matters into their own hands by legalizing
sales of raw dairy products in intrastate commerce.
HB 134 marks the third time in the last five years that a Utah raw milk bill has passed into law. In 2015, the
mother-daughter team of Symbria and Sara Patterson were mainly responsible for the passage of a law legalizing
the distribution of raw milk and raw milk products through micro-dairy herd share agreements. In 2018, Red Acre
Center, a nonprofit formed by the Pattersons, was the driver in passing a law allowing the unlicensed on-farm sale of
raw milk and the delivery of raw milk by licensed dairies. A bill similar to HB 134 nearly passed in the 2019 session;
under the new law, licensed dairies can sell raw butter and raw cream on the farm, through delivery and at a retail
store if the dairy has a majority ownership interest in the store.
The passage of HB 134 comes at a time when, with the Covid-19 situation, demand for food direct from the farm
is soaring. Legal raw butter and cream will move more of the food dollar to where it belongs—at the farms producing
some of the safest, most nutrient-dense foods available.

ONTARIO - CHARTER CHALLENGE TO RAW MILK BAN
In Ontario, a constitutional (charter) challenge to a national and provincial ban on the sale and distribution of raw
milk is nearing the finish. In November, attorneys for the nineteen consumers and two farmers (applicants) who filed
the challenge, and attorneys for the attorney general of Ontario, the attorney general of Canada, the Dairy Farmers
of Ontario and the Dairy Farmers of Canada will argue the case before the Ontario Superior Court of Justice in what
should be the final phase of the litigation. Among those challenging the ban in court is dairy farmer Elisa Vander
Hout whose husband is Michael Schmidt, the one who has done more to promote and increase access to raw milk
than anyone in Canada. (See Wise Traditions Spring 2018 for background.)
The main claim of the applicants is that the ban violates the provision in the Canadian Charter of Rights and
Freedoms guaranteeing freedom of conscience and religion. A brief filed in the case states that the two farmers,
Vander Hout and Paul Noble, “each believe as a matter of conscience in the health benefits of raw milk and that
they have a duty to provide it to consumers who share their beliefs.” The nineteen consumers have purchased raw
milk, consumed it and provided it to their families because “they believe as a matter of conscience in the health

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.

100 Wise Traditions SUMMER 2020