Sunday, April 4, 2010

Guest Blog: Raw Milk Wars - An Attorney's Viewpoint

by R. Drew Falkenstein

There are some benefits to being a lawyer. One is the benefit of reading lots of laws, statutes, and regulations, and knowing the rules that courts are bound by in interpreting those laws. One of those rules is that a court will not read, or interpret, a statute to leave any other clear enunciation—whether entire part, phrase, or word—without effect. In other words, courts will not interpret a law by simply ignoring a specific provision contained in another part of the law.

With the raw milk wars heating up recently, arguments have been made about whether the distribution of raw milk across state lines is “interstate commerce.” This is relevant because, of course, federal law prohibits the distribution of raw milk across state lines—i.e. in interstate commerce. 21 CFR 1240.61 states:
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.

I recently wrote at that:
There is, in fact and law, no "fundamental right to eat whatever we want," and no indication in the federal Constitution that the founders intended such a right to be implicit in the Bill of Rights. In fact, these legislative attempts are a little ironic, considering that their sponsors, Mrs. Wallis and Mr. Paul, are undoubtedly strict constructionists when it comes to constitutional interpretation. Indeed, the only inference as to the founders' intent that can fairly be drawn from the Constitution is that Congress is well within its rights to outlaw the interstate sale and shipment of raw milk.

My blog-post received the following comment: “buyers may form a delivery club to pickup milk and bring to dropoff points. This is legal because once the sale is made legally at the farmgate, the milk is out of commerce. It is then legally possessed private property and can be delivered across states.

Applying the rule of statutory construction described above, courts must give effect to all provisions of 21 CFR 1240.61, including the words “cause to be” that appear, and directly modify, the following word “delivered.” As a result, a violation of the regulation does not depend on a direct sale to a customer in another state. It is sufficient to do any act that “cause[s] to be delivered” raw milk, ultimately, across state lines.

Clearly the addition of the three words “cause to be” would include actions like transporting the product across state lines, selling directly to a consumer who is part of another state’s market, and even producing milk that ultimately will be sold or distributed to consumers in other states. But it is also broad enough—and intentionally so by the regulation’s authors—to include raw milk produced under the guise of a cow-share (or herd-share or lease) agreement where the product ultimately reaches consumers in other states.

Contrary to the commenter on my blog-post it will be no defense in a civil lawsuit, or even in a criminal prosecution, that the milk was produced under the thin guise of an agreement designed only to obscure the legal reality. There is simply no constitutional right to consume raw milk for 21 CFR 1240.61 to run afoul of.

R. Drew Falkenstein is a lawyer with Marler Clark LLP in Seattle, Washington, whose practice is devoted to representing people sickened in foodborne illness outbreaks. Drew has litigated against some of the largest food companies and restaurant chains in the country, and frequently represents people who have been sickened in outbreaks linked to raw milk. His blog,, is a widely read publication that comments on food safety of national importance, and major outbreaks and recalls.

If you would like to receive automatic email alerts for all new articles posted on eFoodAlert, please click here or submit your request using the sidebar link. Please include "subscribe eFoodAlert" in the subject line.


  1. so how do we get the colostrum or milk in it's raw form without killing what is good in the milks?

  2. Then, obviously, the law should be changed. We change laws all the time based on obsolescence. I would hazard a guess that the inter-state commerce clause was simply there to better facilitate legal remedies.

    Now, however, we have the option of stronger Federal and FDA regulation, options for additional inspections and over-sight, and a more informed public.

    Life is not without risk. If informed consumers want the option of more nutritious milk, despite the small chance of contamination, they SHOULD have the right to buy it.

    Surely a compromise could be made. For instance, raw milk dairies could opt for increased voluntary inspections. Dairies and retailers could require that people buying raw milk products sign legal waivers declaring they have read and understood the risks associated with it (I eat raw oysters and know there is a risk associated with them - the signs in the restaurant tell me so).

    In this day and age, everyone is computerized. How about requiring sellers of raw milk products to maintain a database, with contact info (emails and phone numbers) of their consumers. Consumers could opt to go in the database when they purchase raw milk products - along with the tracking numbers for the products (bar codes?) in the event there is a problem... so they can be tracked and contacted immediately.

    Of course... not to sound like a conspiracy nut... but since the US government does not have a vested interest in the overall health of our citizens... yet DOES have a vested interest in the health of the medical industry and giant agri-corporations, they don't really have an incentive to encourage, or allow, us to have access to more nutritious foods. After all... our economy works way better when people get sick through low nutrition - high profit foods and have to be treated with expensive drugs and therapies.

    And... since the FDA seems to be run by a revolving door of Pharmaceutical Industry executives who are beholden to the companies that want to go back to work for later... I really doubt that the FDA will back any change that challenges the status quo.


Note: Only a member of this blog may post a comment.