HERD SHARES RECONSIDERED
In order to bring a higher degree of certainty to farmers, consumers, and regulators, I argue that courts and legislatures should recognize herd sharing as a valid legal arrangement for several reasons. First, recent studies have shown that raw milk does not present nearly as great a risk to human health as public health officials claim; moreover, recent studies in peer-reviewed journals show that raw milk has medicinal qualities beyond that of pasteurized milk. Second, to the extent that raw milk consumption does present a risk of acquiring a foodborne illness, herd sharing offers a unique opportunity to mitigate the occurrence and severity of milkborne disease outbreaks. Lastly, health risks aside, herd sharing is not some "mere subterfuge" (154) to skirt the law prohibiting sales of raw milk; rather, properly written herd share agreements represent a type of shared ownership arrangement in livestock that is firmly rooted in the long history of agistment, one that is still widely practiced in agricultural operations across the United States today.
Public Health Officials Overstate the Danger of Raw Milk
Public health officials and lawmakers frequently use the threat of harm to consumers to justify restrictions on the sale and transfer of raw milk. (155) However, risk is present every time we eat. No food product or beverage, including pasteurized and unpasteurized milk, is entirely safe. Indeed, in the United States alone, foodborne illnesses kill as many as 3,000 people and hospitalize 128,000 each year while sickening an estimated one in six Americans each year. (156) Dairy products, however, account for less than 1 percent of all reported foodborne illness outbreaks in a given year. (157) Between 1993 and 2006, public health officials noted fifty-six outbreaks from fluid milk products that resulted in over 3,000 illnesses, ninety-one hospitalizations, and zero fatalities (in 2014, the CDC released a follow up study in which it purported to show that, between 2007 and 2012, 81 outbreaks associated with raw milk were reported resulting in 979 illnesses and 73 hospitalizations with no deaths). (158) To compare, leafy vegetables accounted for the highest proportion of estimated illnesses between 1998 and 2008, sickening over two million people. (159) Instead of seeking to ban the sale or distribution of leafy vegetables (as is commonly done for raw milk), public health officials merely caution that properly preparing and cleaning fruits and vegetables can eliminate much of the risk associated with foodborne diseases. (160)
Milk, whether it is pasteurized or not, presents a unique opportunity for contamination. While "milk in the udder of healthy animals is sterile," (161) milk nevertheless provides a "high nutrient content" in which bacteria, both harmful and beneficial, can thrive. (162) Consequently, milk from healthy cows can only transmit foodborne pathogens to humans if the milk becomes contaminated by contact with pathogens in the exterior environment. (163) Dirty bulk tanks and dirty teats are common sources of contamination in the exterior environment. (164) While pasteurization can be effective in eliminating bacteria present in raw milk up to the point of pasteurization, (165) pasteurized milk itself is not inoculated from further contamination by virtue of already having been pasteurized. Indeed, once pasteurized, milk can still become contaminated upon contact with another contaminated source (such as the milk hauling system). (166)
Both the frequency of milkborne disease outbreaks and the scope of those outbreaks differ for both raw milk and pasteurized milk. While raw milk consumption tends to result in a higher rate of foodborne disease outbreaks than pasteurized milk, (167) a single outbreak of pasteurized milk has the capacity to infect hundreds of thousands of consumers and even kill people. (168) For instance, in the 1980s, a massive disease outbreak in pasteurized milk resulted in the estimated infection of 168,791 to 197,581 individuals throughout the Midwest, killing as many as eighteen people. (169) More recently, in 2007, contaminated pasteurized milk killed three people in Massachusetts (170) and a 2006 outbreak of Campylobacter in pasteurized milk sickened as many as 1,600 inmates in the California prison system. (171)
The scope of raw milk outbreaks has been significantly more limited than pasteurized milk. (172) Indeed, researchers have found that ten foodborne disease outbreaks involving pasteurized fluid milk resulted in 2,098 illnesses from 1993 until 2006. Raw milk outbreaks were much more localized with forty-six outbreaks resulting in 930 illnesses during that same period. (173) The consumption of any food carries with it some level of risk, and this includes both raw milk and unpasteurized milk.
Not all raw milk is the same. Some types of raw milk may be safer than other raw milk. Raw milk procured through herd shares makes up only a small portion of the total number of illnesses and outbreaks for all raw milk. From 2011 until 2013, herd shares accounted for only six (174) of the twenty-two reported cases of foodborne disease outbreaks of raw fluid milk. (175) During that same time, raw milk reportedly sickened 366 individuals and hospitalized eighteen, (176) however raw milk from herd shares only accounted for eighty-seven reported illnesses and three hospitalizations. (177)
Pasteurization is not the only method to ensure the safety of milk. Indeed, the reduction in milkborne disease outbreaks since the 1930s is not solely attributable to pasteurization; (178) rather, a host of technological and scientific advances in the latter half of the twentieth century in addition to pasteurization such as milk testing, disease testing, improved hygiene, refrigeration, and both research and standards developments operated to reduce the prevalence and virulence of milkborne disease outbreaks. (179) In other words, while pasteurization may have played a role in reducing milkborne disease outbreaks, it only did so alongside other preventative measures taken by milk handlers. This is reminiscent of Dr. Coit's argument in the early twentieth century that certification of the raw milk supply was necessary to ensure safety, whereas pasteurization would merely forgive poor sanitary practices among milk handlers since they knew that the milk would be pasteurized and thus presumably cured of any harm. (180) In many ways, today's raw milk advocates, especially shareholders, are the inheritors of Dr. Coit's assertion that raw milk, produced under sanitary conditions, is healthy and safe to consume. (181)
Reassessing the Risk Posed by Raw Milk
Not all epidemiologists agree that raw milk is as high-risk as U.S. public health officials warn. In recent studies, researchers using quantitative microbial risk assessments (QMRA)--the "gold standard" for testing microbial risks required by the United Nations--have found that raw milk is a low-risk food for the spread of Listeria monocytogenes, Campylobacter, Staphylococcus aureus, and Escherichia coli 0157.m Public health officials frequently warn the public that raw milk is responsible for the transmission of harmful bacteria and that raw milk should not be consumed under any circumstances. (183) However, researchers applying QMRA models have shown that home-cooked chicken, hamburgers, and leafy greens may all possess a higher risk for the spread of foodborne illnesses. (184) Moreover, one researcher argues that public health officials have "overextrapolated" from other types of risk assessment models to arrive at inappropriate conclusions that overstate raw milk's risk. (185) For example, some public health officials use a "comparative risk assessment" model that compares outbreaks of foodborne illnesses between raw milk and pasteurized milk. (186) However, comparative risk assessment models do not describe the degree of inherent risk of a particular food; they merely show that one food may be safer than another. (187) A QMRA model, on the other hand, demonstrates the: "(1) risk per consumer per serving; (2) rate of morbidity, hospitalization (severity), and mortality; (3) risks and rates for susceptible populations; [and] (4) significance of the risk (low, moderate, or high)." (188) Under this analysis, raw milk appears much less risky than public health officials repeatedly proclaim it to otherwise be.
Raw Milk's Medicinal Value
Not only is raw milk not as harmful as many public health officials claim, an ever-increasing body of scientific research indicates that raw milk consumption may have some proven medicinal value. Indeed, scientific studies recently published in peer-reviewed journals tend to support advocates' claims that raw milk consumption can prevent the onset of asthma and at least some childhood allergies and
infections. (189) For instance, a 2011 study of nearly 8,000 farm-raised children found that raw milk consumption prevented the development of asthma, atopy, and hay fever in children ages six through twelve at a greater rate than pasteurized milk in children of the same age group. (190) Researchers speculate that the whey protein found in raw milk may contribute to its protective effect. (191)
Researchers are learning what many raw milk drinkers have known for some time about raw milk--that raw milk provides real health benefits not found in pasteurized milk. For years, many consumers have anecdotally extolled raw milk for helping them overcome a range of diseases including osteoporosis, (192) arthritis, (193) digestive disorders such as Chrohn's disease, (194) autism, (195) eczema, and even cancer. (196) Some claim that they can consume raw milk where lactose intolerance prevents them from consuming any other pasteurized dairy products. (197) Interestingly, many of the testimonials report that the greatest benefit of consuming raw milk accrues to those very individuals whom public health officials warn against...