Bucking the headwinds of an 81-19 vote in the West Virginia House of Delegates (18-16 in the Senate) for legislation that would have allowed dairy farmers to provide raw milk through herdshare arrangements, Gov. Earl Ray Tomblin vetoed the bill on Thursday.
Raw milk is milk that hasn’t been pasteurized to kill harmful bacteria that might be in it.
As described in the bill, in a herdshare agreement, a person buys a percentage ownership interest in a milk-producing animal and agrees to pay the farmer a percentage of the costs for the care and milking of the animal. In that way, the person is entitled to receive a fair share of the animal’s raw-milk production as a condition of the contractual agreement.
West Virginia Governor Earl Ray Tomblin
In other words, the farmer isn’t actually selling the milk.
Often referred to as a “legal loophole,” herdshare arrangements are allowed in four states: Alabama, Virginia, Kentucky, and Indiana.
West Virginia is one of 17 states that prohibits the sale of raw milk, according to the Farm to Consumer Legal Defense Fund.
Why he nixed it
In his veto letter to West Virginia Secretary of State Natalie Tennant, Tomblin didn’t waffle about why he gave the legislation a definitive thumbs-down: “Signing this bill into law would pose a serious risk to public health,” he wrote.
Tomblin followed that with some specific reasons for his veto. To begin with, he wrote, “the bill acknowledges that consuming raw milk has inherent dangers and that it may contain ‘bacteria that is particularly dangerous to children, pregnant women, and those with compromised immunity.’”
He also wrote that “a product with these types of risks should be subject to more supervision than merely requiring a person to release the seller from liability for such risks.”
The second reason for nixing the bill, according to the veto letter, was that it didn’t have enough oversight and regulatory authority when it comes to “sanitation or the handling and storage of raw milk.”
“Given the health implication of the bill,” Tomblin wrotes, “the Bureau of Public Health should have been given oversight and regulatory authority in raw-milk production.” (The bill gave oversight to the state’s Department of Agriculture, with some help from the Bureau of Public Health.)
Although the governor’s veto is unlikely to be overridden, some bill supporters aren’t calling it quits, saying they have the necessary votes to get it reintroduced and passed early in the next session.
About the bill
The bill would have required herdshare sellers (the farmers) to report their agreements to the Agriculture Department and would have required physicians to report any disease or health problems pertaining to the consumption of raw milk to local health departments.
Also, anyone entering into a herdshare arrangement would have been required to sign a written document acknowledging the inherent dangers of consuming raw milk that may contain bacteria, such as Brucella, Campylobacter, Listeria, Salmonella and E. coli. The person signing the agreement would have also had to acknowledge that raw milk is particularly dangerous to children, pregnant women and those with compromised immunity.
The bill would also have required the person signing the document to release the herdshare seller of liability for the inherent dangers of consuming raw milk.
What about health requirements?
Opponents, among them public health officials, physicians, and milk processors, faulted the legislation for not having enough oversight of animal health or milk safety.
The bill would have required that any new animals test negative for diseases within the previous 30 days before coming into a herd. Animals producing bloody, stringy or abnormal milk, but with only slight inflammation of the udder, would need to be excluded from the herd until reexamination showed that the milk had become normal. And any milk-producing animals showing chronic mastitis, whether producing abnormal milk or not, would have to be permanently excluded from the herd.
There was no specific mention in the bill of testing the milk for harmful pathogens such as Brucella, E. coli, Salmonella, or Campylobacter — testing that is standard protocol for Grade A commercial dairies licensed to sell pasteurized milk to retail outlets such as stores and restaurants.
Freedom of choice
Freedom of choice looms large among many supporters of the bill. Delegate Kelli Sobonya (R-Cabell) told the Charleston Daily Mail that the veto was “shortsighted” and “interferes with consumers and their freedom to support our West Virginia farmers and local foods.”
Sen. Daniel Hall (R-Wyoming), the lead sponsor of Senate Bill 30, said he was disappointed in the veto.
“I’m disappointed because I believe that the health risks are minimal and it’s being blown out of proportion,” he said. “We have a somewhat tendency to embrace the nanny state in West Virginia where we think we know what’s best.”
The West Virginia Alliance for Raw Milk, which describes itself as an organization “for West Virginia farmers and consumers and those in surrounding states that believe in the freedom to choose our own foods and to farm our own property without interference,” had been optimistic that the bill would pass.
On its Facebook page (West Virginia Alliance for Raw Milk, or WV-ARM), the group told readers that it would be getting an update on “our bill” yesterday.
“Exciting!!! There’s a light at the end of the tunnel!” it stated. But a posting after the veto lamented the news: “Apparently the light at the end of the tunnel turned out to be a train that just smacked into us.”
Ernie Fazenbaker, co-owner of Windy Ridge Dairy, a Grade A dairy farm in northeastern West Virginia, told Food Safety News that he had been so optimistic about the bill’s passage that he invested $5,000 in upgrading his farm’s milk house so the dairy could bottle its own milk.
“We planned to be up and running,” he said. “We were even stepping up our standards, which already comply with all state and federal standards.”
Fazenbaker said he was also planning to test the milk once a week for bacteria and to test milk in every tank.
He pointed out that neighboring Pennsylvania allows the sale of raw milk, and that some of the raw-milk dairies there take their milk to drop-off points only about 15 minutes from West Virginia.
“People tell me they travel across the state line to buy it,” Fazenbaker said.
(In 2012, 35 people, including two West Virginia residents, became ill from raw milk from a farm in Pennsylvania.)
Like other raw milk supporters, Fazenbaker believes that people can tell if a dairy is keeping things clean and taking good care of its cows.
“People aren’t stupid,” he said. “They won’t buy from a dairy that isn’t sanitary.”
For him, the ability to sell raw milk is a matter of staying in business. With only 30 Holstein-Jersey cross milking cows and so few dairies in his neck of the woods, Fazenbaker fears that the milk processor will stop sending out a truck to pick up his milk.
And he fears that the governor’s veto of SB 30 could push him out of business.
Even so, Fazenbaker said he would support legislation that called for some stricter requirements, such as stainless steel lines and food-grade rubber gaskets in the milking equipment, commercial sanitizers, and the proper equipment to cool milk to 35 degrees F in the necessary timeframe.
The dairyman holds on to his faith when he looks ahead. “I don’t think the Lord’s done with it,” Fazenbaker said. “I think he’s going to open up a way for us to do this.”
Opponents of the bill
A spokesman for the West Virginia governor’s office told Food Safety News that Tomblin received many personal comments both for and against the legislation. But when all was said and done, the spokesman said, the governor based his decision on “science” and on what he heard from public-health officials and the medical community.
State lawmakers also received many letters and comments about the bill. One letter to senators was from Jill Brown, the mother of Kylee Young. At nearly 2 years old, Kylee came down with such a severe case of E. coli from raw milk from a local dairy that she had a stroke and had to have a kidney transplant from her mother. She still struggles with severe mobility problems although she’s getting stronger, according to a recent posting on a Facebook site.
Kylee Young and her dad, Jason Young.
The family’s story was told in an article, “A Mom and Dairy Farmer Plead: Don’t Feed Children Raw Milk,” posted by Food Safety News in February 2014. (An accompanying video was done for Food Safety News by videographer Terry Tainter.)
In the article, Brown describes herself as a mother who wanted to feed her family healthy food and who was led to believe raw milk was the best choice.
“There might be some benefits of raw milk, but there are huge risks,” Brown told Food Safety News. “There needs to be more public awareness that this is a high-risk food. If I had known what I know now, I would never have fed it to my daughter.”
On the business side of the equation, the proposed bill ran into strong opposition from the National Milk Producers Federation (NMPF), which thanked the Tomblin for vetoing the legislation.
NMPF, the voice of 32,000 dairy farmers nationwide, had joined together to oppose SB 30 with the International Dairy Foods Association, an organization that represents dairy processors.
“The link between consuming raw milk and foodborne illness has been well documented, with evidence spanning nearly 100 years,” said NMPF President and CEO Jim Mulhern in a statement. “At the same time, no claims of additional health benefits from drinking raw milk over pasteurized milk have been substantiated … .”
Mulhern said the veto was welcome news, pointing out that at least six other state legislatures have bills pending that would ease raw-milk sales to consumers.
“We urge them to follow West Virginia’s lead and reject these measures,” he stated.
“While choice is an important value, it should not pre-empt consumers’ well-being, especially regarding children who are unable to make these decisions for themselves,” read an earlier statement from the International Dairy Foods Association.
“IDFA supports the governor’s veto decision wholeheartedly,” Ruth Saunders, IDFA vice president of policy and legislative affairs, told Food Safety News in an email. “Pasteurization allows fresh wholesome milk to move from the farm to the consumer. Raw milk skips the pasteurization step, and allows too much food safety risk without any added nutritional benefits.”
But Mark McAfee, co-owner of Organic Pastures in California — the largest raw milk dairy in the nation — shared this warning with Food Safety News:
“Raw milk thrives in California and other states with legal raw milk,” he said in an email. “This veto puts more pressure on illegal sales of raw milk and forces it farther underground. This makes raw milk less safe.”
Raw milk sales are allowed in California, but the dairies must meet strict state standards.
In the 1980s, the U.S. Food and Drug Administration banned the distribution of raw milk across state lines, which forced states to come up with their own regulations about selling raw milk within their borders.
Opposing views about raw milk
While many raw milk advocates say it has inherent nutritional advantages and even helps cure or ease the symptoms of ailments such as asthma and various allergies, most food safety experts discount those claims as anecdotal and not based on science. They also warn of the serious risks to human health associated with drinking milk that hasn’t been pasteurized.
The symptoms of E. coli O157:H7 infection typically include bloody diarrhea and other digestive tract problems. In some people, this type of E. coli may also cause severe anemia or hemolytic uremic syndrome (HUS), a complication in which toxins destroy red blood cells, which are typically smooth and round. The misshapen or deformed blood cells can clog the tiny blood vessels in the kidneys, causing them to fail.
Statistics from the U.S. Centers for Disease Control and Prevention (CDC) underscore the potential dangers of raw milk. According to the agency, between 1998 and 2011, 148 outbreaks due to consumption of raw milk or raw milk products were reported. In those outbreaks, there were 2,384 illnesses, 284 hospitalizations and two deaths. Estimates from the agency put U.S. raw milk consumption at 3 percent of total milk consumption.