Udder nonsense? The emerging issue of raw milk sales in Florida: regulation.

• Author: Adams, Damian C.
• Position: Part 1

A growing number of consumers are devotees of unpasteurized "raw" cow, goat, and sheep milk. Pasteurization is "the application of heat to destroy human pathogens in foods." (2) While pasteurization has proven to substantially reduce milk's disease pathogen load, raw milk advocates claim pasteurization reduces milk's inherently beneficial qualities, such as available nutrients, active enzymes, helpful bacteria, calcium absorption, and taste. (3) Despite the potential risks to human health, consumers continue to demand and producers continue to market raw milk to the general public. (4) The resulting raw versus pasteurized milk dynamics has resulted in an hodge-podge of federal and state regulatory schemes over the broad milk spectrum from strict prohibition to liberal marketing. The inherent danger of raw milk consumption, coupled with varying legal permissiveness, can trigger liability under a number of legal theories. This article outlines the regulation of raw milk by the federal government and the states, paying particular attention to Florida. A second article will examine the legal ramifications of marketing raw milk to the end consumer.

While milk is a rich source of nutrition, it also provides an ideal environment for a number of dangerous bacteria and viruses: (5) anthrax, campylobacter, (6) E. coli, (7) listeria, (8) rabies, (9) salmonella, (10) staphylococcus, tuberculosis, typhoid fever, and yersiniosis. (11) These illnesses have serious health consequences. Pasteurization does not provide fail-safe protection, but does provide an added layer of liability protection by its reduction of pathogens that can injure consumers. (12) Milk contamination primarily occurs via the mammary gland and from the outside environment, like fecal matter on milking equipment or udders. Outside contamination has numerous sources, including sick farm labor, generally unsanitary conditions, and improper refrigeration or improper handling. (13) According to the Centers for Disease Control and Prevention, from 1973 to 1992, there were 1,733 documented raw milk-related illnesses in the United States. (14) A 2004 National Association of State Departments of Agriculture survey found 29 states that have recorded raw milk-related illness outbreaks. (15) From 1998 to May 2005, states reported at least 45 such outbreaks to the FDA. (16) Some of these outbreaks involved severe symptoms and hospitalization. (17)

Despite the health risks, raw milk enthusiasts continue to seek the product, arguing that heat exposure from pasteurization harms the flavor and nutritional composition of milk. (18) Milk's principal sugar (lactose) reacts with amino acids to change the flavor of milk when heated, (19) known as the Maillard reaction. (20) Nutritional quality is also easily influenced by environmental factors, such as heat. Depending on the pasteurization method, vitamin loss can be up to 50 percent for vitamins B1, B6, B12 and 100 percent for vitamins B9 and C within three months. (21) UHT sterilization, an extreme pasteurization method designed for long-term nonrefrigerated storage, can result in severe vitamin loss. (22) However, proponents of pasteurization argue that these issues are negligible. They point out that although some pasteurization methods result in large vitamin losses, average losses of less heat-resistant vitamins via pasteurization include less than 10 percent of vitamins B1, B12, and folic acid; 0-8 percent of B6 and 10-25 percent of vitamin C. (23) These losses are considered nutritionally insignificant. (24)

Whether for perceived taste or health benefits, raw milk advocates are willing to pay very high prices for the milk, and several dairy farms have been cashing in. (25) As they do so, these farmers must be aware of the complex set of federal and state regulations regarding raw milk sales.

Laws regulating the sale of milk are clearly divided along state commerce lines. Any milk passing into interstate commerce is regulated by the FDA, allowing states to regulate milk sales wholly within intrastate commerce. In 1927, the United States established federal standards for safe milk production and interstate transport. (26) The FDA adopted rules on proper milk production and handling, known initially as the "Milk Ordinance" and later as the "Pasteurized Milk Ordinance (PMO)." (27) Beginning in 1974, the FDA required pasteurization of all milk but "certified" raw milk in interstate commerce (28) but, by 1987, the FDA prohibited the sale of any raw fluid milk to the final consumer. (29)

States regulate milk in intrastate commerce via their police powers to protect public health. (30) Today, 22 states and the District of Columbia...