Dissatisfaction with the industrial model of food production has caused many consumers to seek out food produced on local, family-scale farms that use U.S. Department of Agriculture certified organic or other sustainable practices to grow their food and raise their livestock. While almost all of the types of food that are available at the grocery store can also be found at the local farmers market, one food that is difficult to find in many states is raw milk--that is, milk that has not undergone pasteurization (heat treatment). This difficulty lies in the fact that most states prohibit the direct retail sale of raw milk to the final consumer because public health officials and state legislators fear that raw milk may contain bacteria harmful to human health such as E. coli, Campylobacter, and Listeria. However, some consumers reject these warnings and instead believe that raw milk possesses both nutritional and medicinal qualities. Indeed, an ever-increasing body of scientific research published in peer-reviewed journals supports the claim that raw milk consumption can mitigate or prevent some allergies and infections, especially in young children. In order for consumers to obtain raw milk in states where its sale is prohibited, some consumers have entered into arrangements with farmers known as "herd sharing," through which the consumer effectively becomes an owner of the herd of cows or goats. For the price of the share and a monthly boarding fee, the shareholder can receive a weekly distribution of the herd's primary dividend, namely the raw milk. Several states expressly permit this practice while most are silent and still a few prohibit it outright. The three courts in the United States that have ruled on herd share agreements have split, with two courts rejecting the agreements as a circumvention of the state's prohibition on the sale of raw milk, and the other court assuming the agreement's validity in light of the state's failure to adequately define "sale." I argue that courts should consistently uphold properly written herd share agreements where such agreements are not prohibited because such agreements are deeply rooted in the longstanding practice of shared ownership agreements for livestock found throughout the agriculture industry. Furthermore, raw milk has been found by some researchers to be a low-risk food that may actually have some nutritional and even medicinal qualities not found in pasteurized milk. And to the extent that raw milk consumption could cause harm, the risk of a large-scale outbreak from milk obtained through a herd share is slight considering how few participants are in any given herd share.
CONTENTS INTRODUCTION I. HISTORY OF RAW MILK IN THE UNITED STATES A. The "Milk Problem" in U.S. History B. Two Possible Solutions to the Milk Problem Emerge C. The Birth of Modern Milk Regulation 1. The Pasteurized Milk Ordinance and State Regulation of Milk 2. Federal Regulation of Raw Milk II. STATE REGULATION OF RAW MILK TODAY A. Herd Sharing B. Herd Sharing and Judicial Uncertainty III. HERD SHARES RECONSIDERED A. Public Health Officials Overstate the Danger of Raw Milk 1. Reassessing the Risk Posed by Raw Milk 2. Raw Milk's Medicinal Value B. Herd Sharing May Reduce the Risk of Milkborne Disease Outbreaks 1. Herd Share Farmers are Accountable to Their Shareholders. 2. Smaller Herd Sizes 3. Shareholders are Sophisticated Consumers C. Herd Sharing is Nothing New 1. Shared Ownership Arrangements for Livestock Operations Today 2. Properly Drafted Herd Share Agreements CONCLUSION APPENDIX A APPENDIX B INTRODUCTION
In its Declaration of Policy to its Milk Sanitation Code, the Rhode Island legislature recognized milk as "one of the most perfect foods afforded by nature." (1) The Rhode Island legislature is not alone in this sentiment. For well over a century, policy makers, reformers, industrialists, medical professionals, and nutritionists have similarly hailed the "virtuous white liquor" (2) as "the greatest factor for the protection of mankind." (3) Today, nutritionists value milk for its abundant content of calcium and vitamin D, both of which improve bone health and prevent both cardiovascular disease and type 2 diabetes. (4) In fact, milk is such a rich source of calcium and vitamin D that the U.S. Department of Agriculture (USDA) recommends that children drink three glasses of it per day. (5) But despite milk's apparent "virtue," it remains a perennial source of conflict in the United States. The manner of milk's production, (6) the government subsidies paid to the dairy industry, (7) and even milk's actual nutritional value, are all regularly contested. (8) As one author has suggested, milk has a tendency to "reflect cultural preoccupations and deep anxieties in our own era." (9)
Perhaps the most contested ground in milk politics (10) today occurs over consumer access to unpasteurized, or raw, milk. (11) Pasteurization is the treatment of milk and other food and beverage products at high temperatures for a defined period of time. (12) All states require the pasteurization of milk sold to the final consumer; however, many states allow consumers to acquire raw milk in a few, discrete circumstances. (13) And while several states still completely bar any consumer access to raw milk, no state bars the consumption of raw milk.
The consumer demand for raw milk is growing. (14) Today, millions (15) of consumers, propelled by a renewed interest in local food (16) and a growing discontent with both conventional medicine (17) and nutrition, (18) are seeking out raw milk for nutritional benefits that they believe are otherwise absent in pasteurized milk. (19) Moreover, many raw milk drinkers are passionate (20) in their belief that regular raw milk consumption can improve their overall physical health and even cure some diseases. (21) And it is not just anecdotal evidence that shows this, raw milk advocates argue; rather, an ever-increasing body of scientific, peer-reviewed literature suggests that raw milk consumption by children at an early age may prevent asthma, atopy, (22) and hay fever. (23)
But public health officials are not buying any of it. According to them, "raw milk should not be consumed by anyone, at any time, for any reasons." (24) They are quick to reject raw milk's purported medicinal value as merely anecdotal and wholly unsubstantiated by sound, scientific evidence. (25) To them, the studies showing raw milk's potential health benefits are either methodologically deficient or otherwise limited in scope. (26) Moreover, they adamantly maintain that raw milk harbors harmful, if not deadly, pathogens such as Escherichia coli 0157, Campylobacter jejuni, and Listeria that routinely hospitalize dozens of raw milk consumers each year, many of who are young children, older adults, and other immunocompromised individuals. (27) They insist that only pasteurization of milk and milk products can safely eliminate the risk of acquiring any one of these potentially deadly pathogens. (28)
The crossfire from the raw milk skirmishes between public health officials and raw milk advocates has spilled over into legislatures and courts across the country with increasing vigor in recent years. (29) Where the federal government's prohibition of interstate raw milk sales and transfers seems firmly in place, (30) state legislatures have a free hand in regulating intrastate sales and transfers of raw milk. (31) So, while all states require the pasteurization of milk sold to the final consumer, (32) most states have carved out some type of exception permitting certain sales or transfers of raw milk to the final consumer, usually under a narrow set of circumstances. (33) In those states that have not allowed for an exception, raw milk advocates have turned to quasi-legal arrangements (34) to obtain raw milk, the most common of which is herd sharing. (35) In a herd share, consumers purchase shares in a herd of cows from a farmer rather...