AUSTIN, Texas (May 19, 2017) – Today, the Texas Senate passed a bill that would expand raw milk sales in the state. If signed into law, the legislation would help nullify a federal prohibition scheme in practice.

Sen. Bob Hall (R-Dist 2) prefiled Senate Bill 95 (SB95) last fall. The legislation would expand raw milk sales in Texas, authorizing permit holders to sell unpasteurized milk and raw milk products in a retail setting. Under current law, raw milk may only be sold on the farm. If passed SB95 would open the door for unpasteurized milk sales at the permit holder’s place of business, the consumer’s residence, or at a farmer’s market.

The legislation also includes regulations for storage, labeling and testing of raw milk and related products.

SB95 appears to be on a fast-track. Today, the Senate voted to suspend the rule requiring three days between the second and third reading and then passed the bill.

Federal Prohibition

FDA officials insist that unpasteurized milk poses a health risk because of its susceptibility to contamination from cow manure, a source of E. coli.

“It is the FDA’s position that raw milk should never be consumed,” agency spokeswoman Tamara N. Ward said in November 2011.

The FDA’s position represents more than a matter of opinion. In 1987, the feds implemented 21 CFR 1240.61(a), providing that, “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.”

Not only do the Feds ban the transportation of raw milk across state lines, they also claim the authority to ban unpasteurized milk within the borders of a state.

“It is within HHS’s authority…to institute an intrastate ban [on unpasteurized milk] as well,” FDA officials wrote in response to a Farm-to-Consumer Legal Defense Fund lawsuit against the agency over the interstate ban.

The FDA clearly wants complete prohibition of raw milk and some insiders say it’s only a matter of time before the feds try to institute an absolute ban. Armed raids by FDA agents on companies like Rawsome Foods back in 2011 and Amish farms over the last few years also indicate this scenario may not be too far off.

Nullifying the Federal Scheme

Passage of SB95 in Texas would take a step toward nullifying this federal prohibition scheme in effect.

As we’ve seen with marijuana and industrial hemp, an intrastate ban becomes ineffective when states ignore it and pass laws encouraging the prohibited activity anyway. The federal government lacks the enforcement power necessary to maintain its ban, and people will willingly take on the small risk of federal sanctions if they know the state will not interfere. This increases when the state actively encourages the market and nullifies federal prohibition in effect.

We’ve seen this demonstrated dramatically in states that have legalized industrial hemp. When they authorized production, farmers began growing industrial hemp, even in the face of a federal ban. Despite facing the possibility of federal prosecution, some growers were still willing to step into the void and begin cultivating the plant once the state removed its barriers.

In the same way, removing state barriers to raw milk consumption, sale and production would undoubtedly spur the creation of new markets for unpasteurized dairy products, no matter what the feds claim the power to do.

In practice and effect, it could ultimately nullify the interstate ban as well. If all 50 states allow raw milk, markets within the states could easily grow to the point that local sales would render the federal ban on interstate commerce pointless. And history indicates the feds do not have the resources to stop people from transporting raw milk across state lines – especially if multiple states start legalizing it. Growing markets will quickly overwhelm any federal enforcement attempts.

WHAT’S NEXT

SB95 now moves to the House for further consideration.