Lactose intolerance

What you need to know about raw milk and the long arm of the law.

By Loren Muldowney

Editor’s note: The following article is the second of a four-part series that will appear monthly in the nutrition section of our website. It is based on the second of four recent lectures in a Seminar Series on Raw Milk hosted by the New Jersey Agricultural Experiment Station at Rutgers, the State University of New Jersey. See part I: The truth about milk, and part III: Got raw milk?

David G. "Gary" Cox, an attorney with Lane, Alton & Horst LLC of Columbus, Ohio, presented the February 20 seminar entitled "Raw Milk Wars: Government’s Attempt to Dictate What Foods We Can Consume."

Cox identified what he believes is the fundamental issue at stake: Do we citizens have the right to produce and consume our own food? “I think we do” said Cox. Other issues include clearly identifying the public interest and the role of government. Gary Cox is disturbed by his experiences defending raw milk producers, forcing him to confront another question: Who is government serving by its actions in the raw milk wars?

A 1987 Federal regulation (21 C.F.R. 1240.61) underpins legislation surrounding raw milk sales, said Cox. Interstate shipment of raw milk became illegal except when being sent to a facility to be pasteurized. Other dairy products, including yogurt, kefir, butter and unripened cheese, must be made from pasteurized milk. Each state, however, may regulate as it sees fit. Of the 50 states, 22 prohibit raw milk sales outright, while 28 allow its sale under certain conditions. Gary Cox represents farmers threatened with fines and other regulatory hazards to their livelihoods. Following are significant case summaries from Cox’s legal work with raw-milk producers.

An Ohio Grade-A producer with 130 dairy cows began dedicating a few animals to raw milk production using a business model known as a “herd share” or “cow share,” in which consumers own the cows and pay for board of the herd or animal. Milk produced is the property of the cows’ owners, so no sale is involved. The Ohio Department of Agriculture (ODA) infiltrated the herd share group and proposed to revoke the farm’s Grade A permit for its other milk sales. This proposed action was upheld in an administrative hearing but was overturned upon appeal by a court which found nothing in the law prohibiting a herd share.

Another Ohio producer sold raw milk as pet food, shipping it across state lines. There is no prohibition against shipping commercial feed. The ODA took the position that raw milk is not allowed as an ingredient in a commercial feed. The producer incurred legal fees and prepared for a hearing. The ODA withdrew the proposed action days before the hearing. Cox filed a countersuit, pointing out the potential for abuse if a farmer is forced to prepare and incur legal fees for actions later withdrawn.

A New York farm relinquished its raw milk permits, forming a Limited Liability Company (LLC) under New York State law. The farmer owns land and equipment; the LLC has one asset—a herd of dairy cows. LLC members invest working capital to maintain their cows and receive raw dairy products as the return on investment. There is no sale, and product distribution is to members only. The state infiltrated the LLC and levied fines, seized and destroyed product, and now seeks to hold the farmer in contempt of court. The farm sued New York State, saying that the laws cited do not apply to private conduct and that the Department of Agriculture and Markets lacked the authority to justify its actions.

California recently changed its law to impose a limit of 10 coliforms/ml on raw milk producers under the rationale that “milk is milk,” so a uniform standard is justified. Cox sued the state, seeking judgment on whether a nexus exists between the coliform standard and the public interest supposedly being protected. The test for coliform bacteria was originally devised to verify pasteurization efficiency, not to establish safety, making it a questionable test for milk not intended for pasteurization. In addition, pasteurized milk may be sampled from the bulk tank for this test, but raw milk must meet the new standard in the finished product as packaged for retail sale.

Washington and Oregon are adjoining states, and raw milk sale is legal in each. A resident of Oregon purchased raw milk from a Washington farm and subsequently returned to Oregon with his purchase. The Washington farmer was charged with a federal crime for making raw milk available in interstate commerce. The case was settled out of court, but Cox wonders why such a charge would be brought.

Cox mentioned the Farm-to-Consumer Legal Defense Fund a recently established 501(c)(4) non-profit organization promoting sustainable farming and farm-to-consumer transactions. Legal assistance may be provided to farmer members who meet the organization's criteria. Several attorneys form its legal committee, with Cox serving as litigator.

Finally, Cox mentioned a Nebraska case in which two children became sick with E. coli poisoning. The children had consumed milk from a raw milk dairy well-known as the cleanest operation in the state. When it was discovered that the children had consumed raw milk, the investigation ended. Raw milk was assumed to be the answer despite a lack of any evidence connecting the farm to the outbreak. According to Cox, his request for investigative results was denied for "confidentiality" reasons.

This is important, Cox said, from both the perspective of the assumptions made and from the reporting of the outcome. He alerted the audience to the wording of the press release in the Nebraska case. It does not say the outbreak was "caused by" raw milk, but that it was "associated with" raw milk. This means, he said, that no conclusive evidence was found, merely that the person who got sick had consumed raw milk in addition to all other things consumed. According to Cox, such a bias exists that if raw milk is found to have been consumed, the investigation stops and is presumed solved, even when no microbiological evidence is found. The term “implicated” is another term commonly used when evidence is lacking.

Despite his talk’s somewhat provocative title, Gary Cox is far from being "anti-government." He proudly served for 14 years as a prosecutor for the Ohio Attorney General's Office, bringing polluters to justice and upholding the law. In the context of raw milk, however, he identifies a pattern of selective enforcement, persecution of farmers and government actions not supported by any law. Finally, Cox expressed dedication to preventing government from exceeding its authority under the guise of "protecting" the public.

Loren Muldowney holds a bachelor's degree in biochemistry and a master's degree in soils and water from Rutgers University, where she is continuing studies in sustainable agriculture. Her backyard is home to nine compost units, organic gardens, and is a certified wildlife habitat.