Alaska Bill Would Legalize Raw Milk and Hinder FDA Regulation of Local Food Sales

By: Mike Maharrey

JUNEAU, Alaska (Jan. 15, 2019) – A bill prefiled in the Alaska House would exempt food sold directly from producer to consumer from state regulation and specifically legalize the sale of raw milk. The proposed law would not only take a big step forward for food sovereignty, it would also create an environment hostile to federal regulations and take an important step toward nullifying a federal prohibition scheme in effect. 

Rep. Geran Tarr (D) filed House Bill 16 (HB16) on Jan. 7. The legislation would exempt the sale of food products sold directly from the producer to the consumer from state regulation under the following conditions.

• It is only for home consumption;
• The sale occurs only in the state;
• The sale does not involve interstate commerce; and
• The sale does not involve the sale of meat products, except for poultry and poultry products; live animals intended for slaughter; and portions of animals for future delivery if the purchaser or a processing facility licensed by the state or a federal agency processes the animals.

HB16 would also legalize the sale of raw milk.

A person may sell a raw milk product to a final consumer if the principal display panel on the raw milk product prominently states that the raw milk product is not pasteurized and may cause health concerns, and if the person complies with any state requirements for the sale of raw milk that do not conflict with this section.

Current Alaska law prohibits raw milk sales except in the form of cow shares that individuals must purchase, making it difficult for consumers to gain access.

“As we work to develop and strengthen our agriculture industry one missing component is a strong dairy sector. The topic of raw milk sales can be controversial but I believe consumers should have the choice if they want and this bill creates opportunities for small scale direct purchases,” Tarr said when he introduced a similar bill in 2017.

Impact on Federal Prohibition and Regulation

While state law does not bind the FDA, the passage of HB16 would create an environment hostile to federal food regulation in Alaska. And because the state would not interfere with nor regulate some producer to consumer food sales at all, it also would not enforce FDA mandates. Should the feds want to regulate such food sales in Alaska, it would have to do so by itself.

Less restrictive food laws would likely hinder FDA regulation and would make it that much more difficult for the feds to enforce their will within the state.

Constitutionally, food safety falls within the powers reserved to the states and the people. The feds have no authority to enforce food safety laws within the border of a state. Nevertheless, federal agencies still want more control over America’s food supply, and they go great lengths to get it.

Raw Milk

FDA officials insist that unpasteurized milk poses a health risk because of its susceptibility to contamination from cow manure, a source of E. coli.

“It is the FDA’s position that raw milk should never be consumed,” agency spokeswoman Tamara N. Ward said in November 2011.

The FDA’s position represents more than a matter of opinion. In 1987, the feds implemented 21 CFR 1240.61(a), providing that, “no person shall cause to be delivered into interstate commerce or shall sell, otherwise distribute, or hold for sale or other distribution after shipment in interstate commerce any milk or milk product in final package form for direct human consumption unless the product has been pasteurized.”

Not only do the feds ban the transportation of raw milk across state lines, they also claim the authority to ban unpasteurized milk within the borders of a state.

“It is within HHS’s authority…to institute an intrastate ban [on unpasteurized milk] as well,” FDA officials wrote in response to a Farm-to-Consumer Legal Defense Fund lawsuit against the agency over the interstate ban.

The FDA clearly wants complete prohibition of raw milk and some insiders say it’s only a matter of time before the feds try to institute an absolute ban. Armed raids by FDA agents on companies like Rawsome Foods back in 2011 and Amish farms over the last few years also indicate this scenario may not be too far off.

When states allow the sale of raw milk within their borders, it takes an important step toward nullifying this federal prohibition scheme.

As we’ve seen with marijuana and industrial hemp, an intrastate ban becomes ineffective when states ignore it and pass laws encouraging the prohibited activity anyway. The federal government lacks the enforcement power necessary to maintain its ban, and people will willingly take on the small risk of federal sanctions if they know the state will not interfere. This increases when the state actively encourages the market and nullifies federal prohibition in effect.

We’ve seen this demonstrated dramatically in states that have legalized industrial hemp. When they authorized production, farmers began growing industrial hemp, even in the face of a federal ban. Despite facing the possibility of federal prosecution, some growers were still willing to step into the void and begin cultivating the plant once the state removed its barriers. Hemp markets expanded rapidly. In 2018, the federal government finally gave up prohibition completely recognizing that it could no longer enforce the policy.

In the same way, removing state barriers to raw milk consumption, sale and production would undoubtedly spur the creation of new markets for unpasteurized dairy products, no matter what the feds claim the power to do.

It could ultimately nullify the interstate ban as well. If all 50 states allow raw milk, markets within the states could easily grow to the point that local sales would render the federal ban on interstate commerce pointless. And history indicates the feds do not have the resources to stop people from transporting raw milk across state lines – especially if multiple states start legalizing it. Growing markets will quickly overwhelm any federal enforcement attempts.

Federal ambitions go far beyond controlling your access to raw milk. In fact, the FDA wants to enforce universal, one-size-fits-all control over everything you eat and drink.

Pasage of HB16 would take an important step for food freedom. It would decentralize the system and recognize the fact the one-size-fits-all regulation enforced from the top down by Juneau or Washington D.C. is not necessary. I would also set the stage to nullify in effect FDA schemes to control the food supply.

WHAT’S NEXT

HB16 will be officially introduced when the Alaska legislature convenes for its 2019 session on Jan. 15. It will then receive a committee assignment.