By Pete Kennedy, Esq.
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 business 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 individual 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 continued loss of dairy farms in the state, the time is now.
This article was first published in the Fall 2020 issue of Wise Traditions in Food, Farming, and the Healing Arts, the quarterly journal of the Weston A. Price Foundation.
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