Updated: Jul 9, 2020
By Ashley Ellixson and Paul Goeringer
This post should not be considered legal advice
Let’s talk about a subject majority of you may have feelings about (either for or against): raw milk. The Food and Drug Administration (FDA) requires all milk sold in interstate commerce (commerce involving more than one state) to be pasteurized (21 CFR § 1240.61 (http://www.law.cornell.edu/cfr/text/21/1240.61)). Intrastate sales (sales only involving one state) are currently not regulated by the FDA. As of 2011, 30 states allowed some form of raw milk sales and 20 states, including Maryland, do not currently allow any raw milk sales.
In Maryland, the state Department of Health and Mental Hygiene (DHMH) only allows sales of raw milk to a receiving station, transfer station, milk plant, or milk marketing agency. All milk sold to consumers in Maryland must be pasteurized. We know what many of you are thinking, “But milk sales mean transactions involving money, right? I can find ways around this and still get my hands on raw milk, right? I could offer to help with a herd of dairy cows in return for some raw milk.”
DHMH takes a broad view of the word “sales” when dealing with milk. According to the regulations, sale or sell means “[t]ransfer or dispensing of milk and milk products; or [r]ight to acquire milk and milk products: (i) [t]hrough barter or contractual arrangement; or (ii) [i]n exchange for any other form of compensation including, but not limited to, an agistment agreement, which is the sale of shares or interest in a cow, goat, or other lactating hoofed mammal, or herd of cows, goats, or other lactating hoofed mammals.” (COMAR § 10.15.06.02(B)(29)(a)-(b)).
The regulation also cuts off cow-share agreements that many have used in other states to get around the ban on raw milk sales, more on this later. Subsection b(ii) specifically includes one type of agistment agreement, share agreements for cows, goats, and other hooved animals. This ban was upheld by the Court of Special Appeals in Oyarzo v. Md. Department of Health and Mental Hygiene (2009). Virginia’s Supreme Court has also found similar agreements to essentially be a sale of raw milk, but has no similar regulations outlawing share agreements.
Maryland does allow raw milk to be used in cheeses produced in the state. But the General Assembly has limited raw milk cheese production to raw milk from the farm’s dairy herd. This means you would not be able to buy raw milk from other producers in order to produce cheese. The Health Department requires the milk used and the cheese produced to be tested for known pathogens (COMAR § 10.15.08.05).
Cow looking into the camera (Photo by Edwin Remsberg).
How do other states handle raw milk sales? There is no standard way of handling raw milk sales. Every state has taken a stance in how, where, if, and who can sell raw milk (although some states have not even addressed many of these issues at all). For example, 11 states (AZ, ID, NM, SC, CA, ME, OR, WA, CT, NH, and PA) allow the sale of raw milk in retail stores and require a permit, which also allows for sales on/off the farm and at farmers markets. Interestingly though, Oregon only applies this law to goat and sheep milk. Additionally, seven states (MA, SD, WI, MO, TX, NY, and UT) allow for only licensed on-farm sales.
However, there are always the states that have unique add-ons to their laws, like Utah which allows for retail sales only if the producer is a majority shareholder in the store. Similarly, South Dakota allows for retail sales if the producer actually owns and operates the store. Then there are the states, 11 total, which do not require a license for on-farm sales (AR, MN, NE, OR, IL, MS, NH, VT, KS, MO, and OK).
As far as cowshares and herdshares are concerned, there are eight states which have made these contracts legal either by statute, regulation, court decision or written policy (AK, MI, TN, CO, ND, WY, ID, and OH). Colorado, Wyoming and Idaho all require farms operating a cowshare/herdshare program to register with the state. Lastly, there are 17 states which still render the sale of raw milk for human consumption illegal (AL, IN, MT, VA, DE, IA, NV, WV, FL, KY, NJ, GA, LA, NC, HI, MD, and RI). Nevertheless, Nevada does require a County Milk Commission (CMC) approval in order to sell raw milk. Even with this law in place, the only CMC, in Nye County, has yet to grant approval to any dairies.
This is a general overview of the types of laws that states have implemented concerning raw milk. It is in no way an exhaustive list of the laws of each state and how each one regulates raw milk sales and consumption. For example, some states limit the volume of raw milk sold from one farm in a period of time while other states do not even address whether cowshares/herdshares are legal or illegal. Real Raw Milk Facts (http://www.realrawmilkfacts.com/) is a good resource to keep up with states’ laws on the subject. State laws are constantly evolving and adapting to the needs and wants of its citizens and industry groups.