Raw Milk

Raw milk is milk that has not been pasteurized. Pasteurization is the process of heating milk to high temperatures for the purposes of prolonging shelflife and eliminating disease-causing microorganisms, such as brucella, campylobacter, E. coli, listeria, and salmonella. According to the Centers for Disease Control and Prevention (CDC), health risks associated with consuming raw milk that contains these microorganisms include diarrhea, stomach cramping, vomiting, Guillain-Barre Syndrome, and kidney failure. Because raw milk may carry these microorganisms and may pose a serious health risk, the CDC and the U.S. Food and Drug Administration (FDA) recommend against raw milk consumption.

Despite the CDC’s and FDA’s warnings, consumer demand for raw milk is increasing. Raw milk advocates disagree with the CDC and FDA about the health risks associated with consuming raw milk. These advocates believe raw milk and raw milk products provide more nutritional benefits than pasteurized milk, can improve physical health, and can cure some diseases.

The conflicting opinions about the risks and benefits of raw milk consumption have led to legislatures and courts joining the conversation, including the Kansas Legislature and a Kansas district court.

Raw Milk Regulation at the Federal Level

Title 21, part 1240 of the Code of Federal Regulations prohibits the interstate sale of raw milk and raw milk products in final package form and for direct human consumption. Additionally, the FDA prohibits the sale of raw unpasteurized milk and raw milk products for human consumption in § 9 of the Grade “A” Pasteurized Milk Ordinance (PMO).
However, the Code of Federal Regulations prohibition does not apply to intrastate sales, and the FDA does not regulate raw milk sales. Therefore, states may permit sales of raw milk and raw milk products within the state and override § 9 of the PMO. States can override the PMO by enacting state statutes, creating state administrative rules and regulations, and making state policy decisions that conflict with § 9.

Overall, 31 states, including Kansas, have overridden the PMO to permit intrastate sales of raw milk and raw milk products for human consumption.

Raw Milk Regulation at the State Level

States that have overridden the PMO allow the sale of raw milk and raw milk products in a variety of ways. The most common ways for consumers to purchase raw milk and raw milk products are on-farm sales and “cow-share” or “herd-share” programs. “Cow-share” programs are programs in which consumers can purchase a dairy cow or a percent of a dairy cow, and then they are allowed to receive the raw milk produced by that cow. Consumers can also purchase raw milk and raw milk products at farmers markets in 2 states and at retail stores in 12 states. The illustration below below shows the various purchase options found in each state.

Raw Milk Laws

Raw Milk Regulation in Select Midwestern States

Kansas

Current Law

KSA 65-771 et seq. permits the on-farm sale of raw milk and raw milk products to consumers. Each container of raw milk must be clearly labeled as “ungraded raw milk.” Dairy farmers who only conduct on-farm sales are not required to obtain an operating license. However, dairy farmers who sell raw butter or raw cream are required to obtain a dairy manufacturing plant license. Dairy farmers who sell raw milk and raw milk products are inspected by the State only if there is a complaint. The current statute requires that dairy farmers can advertise the sale of raw milk and raw milk products only on the farm.

Mark Bunner, et al. v. Mike Beam – Secretary of the Kansas Department of Agriculture

In 2019, Mark and Coraleen Bunner filed a lawsuit against Mike Beam in his official capacity as the Secretary of Agriculture. The Bunners sought a declaratory judgment and injunctive relief from KSA 65-771(cc), commonly referred to as the Kansas Raw Milk Advertising Ban (Ban). The Ban prohibited any off-farm advertising for raw milk and raw milk products.

In November 2019, the Shawnee County District Court entered a judgment by consent and permanent injunction in the case. The specific language at issue was “[…] so long as the person making such sales does not promote the sale of milk or milk products to the public in any manner other than by the erection of a sign upon the premises of the dairy farm.” The court found that this language in KSA 65-771(cc) was a violation of the First and Fourteenth Amendments of the U.S. Constitution and Kansas Constitution Bill of Rights § 11. Therefore, the Kansas Department of Agriculture was permanently enjoined from enforcing the Ban and any provision related to enforcing the Ban.

2020 SB 308

In response to the Shawnee County District Court’s judgment, a bill was introduced and referred to the Senate Committee on Agriculture and Natural Resources (Senate Committee) during the 2020 Legislative Session. The bill was introduced at the request of the Kansas Department of Agriculture and would have amended KSA 65-771 to allow on-farm sales of raw milk and raw milk products and repealed the problematic language identified in Bunner; thus, off-farm advertising for raw milk and raw milk products would be permitted. Furthermore, the bill would have required each container of unpasteurized raw milk sold or offered for sale to bear a clearly visible label to state the following or the equivalent of the following: “This product contains raw milk that is not pasteurized.”
The Senate Committee passed SB 308 with amendments, and the Senate Committee of the Whole passed the bill by a vote of 37-3. The bill was then introduced in the House of Representatives and referred to the House Committee on Agriculture (House Committee). The House Committee held a hearing, but it ultimately took no action on the bill in the wake of the COVID-19 pandemic and abbreviated legislative session. SB 308 died in the House Committee on Sine Die (May 21, 2020).

Illinois

The Grade A Pasteurized Milk and Milk Products Act (410 ILCS 635/8) permits the on-farm sale of raw milk in Illinois; however, dairy farmers and consumers must comply with the following conditions:

• The dairy farmer must place a placard at the point of sale or distribution stating the milk is not pasteurized and stating the potential danger to certain individuals;
• Customers must bring their own containers;
• The dairy farmer cannot process the milk in any way; and
• The dairy farmer must produce the milk in accordance with the Department of Public Health rules and regulations.

Indiana

Ind. Code § 15-18-1 prohibits raw milk sales for human consumption. While not expressly authorized by statute, cow-share programs are operated in the state and used by consumers to purchase raw milk. Raw milk sales for animal consumption, on the other hand, are legal on the farm and in stores so long as the dairy farmer has properly obtained a commercial feed license from the State.

Iowa

Iowa Code § 192.103 prohibits raw milk sales in Iowa.

Michigan

Per the Grade A Milk Law of 2001 (Mich. Comp. Laws § 288.538), raw milk sales for human and animal consumption are illegal in Michigan. The State, however, does not regulate cow-share programs, so consumers can legally obtain raw milk through cow-sharing. Consumers in a cow-share program cannot resell the raw milk.

Minnesota

Minn. Stat. § 32D.20 notes sales of raw milk and raw milk products in Minnesota are legal only when the following conditions are met:

• Milk must be occasionally secured or purchased (i.e., not on a routine basis);
• Milk must be for the consumer’s personal use;
• Milk must be purchased or secured at the place or farm where the milk is produced;
• Customers must bring their own containers; and
• The farmers cannot advertise raw milk or raw milk products.

Although the first condition requires raw milk and raw milk products only be occasionally secured or purchased, dairy farmers can sell raw milk and raw milk products on a routine basis (more than “occasionally”) if they obtain a license. The licensing requirement for routine sales of raw milk and raw milk products has been challenged by Minnesota dairy farmers. For example, in In re Application for an Order for Inspection of Berglund (Berglund), a dairy farmer challenged the Minnesota Department of Agriculture’s authority to regulate his raw milk sales and to inspect his farm. The basis for his challenge stemmed from the State’s interpretation of the licensing exemption found in the Minnesota Constitution and state statutes. The exemption states “any person may sell or peddle the products of the farm or garden occupied and cultivated by him without obtaining a license thereof.” The State has interpreted this licensing exemption to apply only to produce farmers and dairy farmers who sell raw milk occasionally. The Minnesota Department of Agriculture applied this interpretation in Berglund, and it did not dispute Berglund’s assertion that he was exempt from the licensing requirement.

Nebraska

The Nebraska Milk Act (Neb. Rev. Stat. § 2-3965 et seq.) regulates the sale of milk, but exempts from such regulation milk and cream produced exclusively for sale on the farm directly to customers for consumption. Like Kansas dairy farmers, Nebraska dairy farmers whose businesses involve only on-farm sales of raw milk and raw milk products do not have to obtain permits.

North Dakota

N.D. Cent. Code § 4.1-25-40 permits the transfer of raw milk under a shared animal ownership agreement (“cow-share program”). On-farm raw milk sales for pet consumption are permitted by the policy of the North Dakota Department of Agriculture.

Ohio

Ohio Rev. Code §917.01 et seq. prohibits raw milk sales, but the statute allows raw milk sales from vendors who hold a valid raw milk retailer license issued by the State and who have been continuously engaged in the business of selling raw milk to consumers since 1965. However, there are no dairy farmers in the state who meet both criteria.
Notwithstanding the state statutes, raw milk can be obtained legally through a cow-share program in the state. The cow-share agreements must comport with Ohio contract law to be legally recognized.

South Dakota

S.D. Codified Laws § 39-6-3 permits dairy farmers to sell raw milk on the farm and through home delivery. The state adopted § 9 of the PMO, but it also created an exception that permits the sale of raw milk, cream, skim milk, or goat milk when these conditions are met:

• Must be occasionally secured or purchased;
• Must be for the customer’s personal use;
• Must be obtained at the place or farm where the milk is produced;
• Must be sold directly to consumers;
• Must be bottled by dairy farmers with a milk plant license; and
• Must be clearly labeled as “raw milk” on each container.

Wisconsin

Per Wis. Stat. § 97.24, raw milk and raw milk product sales are generally illegal. However, there is an exception for incidental sales of raw milk directly to consumers and on the farm where the milk is produced. The incidental sales exception also applies to sales to employees or persons shipping milk to a dairy plant. However, the exception does not apply to sales regularly made in the course of business or to sales preceded by any advertising or other offer to solicit members of the public.

Wisc. Admin. Code § ATCP 65.52 prohibits the sale of unpasteurized milk or dairy products, but does not prohibit such sale to:

• The milk producer licensed to operate that dairy farm;
• Individuals with a bona fide ownership interest in the dairy farm and milking operation, if the milk producer operating the dairy farm is a legal entity other than an individual or married couple; or
• Family members or nonpaying household guests who consume the milk at the home of the individual milk producer or bona fide owner.

Raw Milk Restrictions in Midwest States

State	Statute	Retail Store Sales Legal	On-farm Sales Legal	Off-farm Sales Legal	Cow-share Programs Legal	Advertising Legal
Illinois	410 ILCS 635/8	No	Yes	No	Yes	No law on advertising
Indiana	Ind. Code § 15-18-1	No	No	No	Yes	No law on advertising
Iowa	Iowa Code § 192.103	No	No	No	No law on cow-shares	No
Kansas	KSA § 65-771 et seq.	No	Yes	No	No law on cow-shares	Yes, on-farm only limitation ruled unconstitutional
Michigan	MCL 288.538	No	No	No	No law on cow-shares	No law on advertising
Minnesota	Minn. Stat. 32D.20	No	Yes	No	No law on cow-shares	No
Nebraska	Neb. Rev. Stat. § 2-3965 et seq.	No	Yes	No	No law on cow-shares	No law on advertising
North Dakota	NDCC § 4.1-25-01 et seq.	No	No	No	Yes	No law on advertising
Ohio	9 Ohio Rev. Code § 917.01 et seq.	No	No	No	Yes	No law on advertising
South Dakota	SDCL § 39-6-3	No	Yes	Yes, only direct delivery by farm	No law on cow-shares	No law on advertising
Wisconsin	Wis. Stat. § 97.24	No	Yes, incidental sales only	No	Yes, if certain conditions are met	No