How to Deal with Raw Milk and the Food Sovereignty Movement

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Marc Brazeau | Editor | Food and Farm Discussion Lab | @eatcookwrite

Questions about how to deal with the demands of the food sovereignty movement and especially the sale of raw milk come up on the FAFDL forum every few months . I keep typing out a lot of the same comments, so it’s time to type them out one last time somewhere easily accessible.

The food sovereignty movement in the US is a small group of very motivated consumers and producers. Many are either sold on the health benefits of raw milk or wanting to access hyper-local, off the beaten path products. The food sovereignty movement is especially strong in the state of Maine. In addition to wanting to be able to buy unpasteurized milk, the movement wants to be able to buy wild meat from local hunters. I have a lot of sympathy with this impulse. It’s easy to understand why someone would want to break out of our bland, over-processed, homogenized mass market food offerings. I don’t buy into dubious health claims about the wonders of raw milk, but I get where they are coming from.

Photo by Ann Marie Michaels | Flickr | CC License

The Risks of Raw Milk are Real

But the risks are real. The CDC finds “unpasteurized milk is 150 times more likely to cause food-borne illness and results in 13 times more hospitalizations than illnesses involving pasteurized dairy products.” Infections from milk made up 1 in 4 of all food borne illnesses as late 1938. Due to pasteurization, they now account for just 1 in 100. The Marler Clark food safety law firm maintains a journal of food poisoning cases around the US. A site search for entries related to “milk” brings up one case after another of raw milk testing positive for pathogens or case of poisoning caused by raw milk. I scrolled through all of the entries from 2016 and 2017. With the exception of a very big powder milk recall at the end of 2016, every single entry pertained to risks and illness from raw milk.

I think the average consumer should be able to buy their milk and groceries without worrying about whether it’s safe or not. Public health systems are designed to make safe food the default for the broad public. It is meant to mediate and minimize risk in an impersonal mass society. And it’s been this way for a long time. Once a society becomes too large to be organized along lines of kinship – when status, reputation, and the threat of violent reprisal from wronged individuals are no longer sufficient to order a society – we increasingly rely on laws.

Once You Have Cities, Raw Milk Becomes Problematic. Just ask Hammurabi.

You might know The Code of Hammurabi for the dictum of “An eye for an eye, a tooth for a tooth”; but the first code of laws on record enshrined consumer protections into law to facilitate commerce among people who might not be kin to each other. This was in 1754 BC when Babylon was a city of about 200,000.
Consider:

Nearly one-half of the code deals with matters of contract, establishing, for example, the wages to be paid to an ox driver or a surgeon. Other provisions set the terms of a transaction, establishing the liability of a builder for a house that collapses, for example, or property that is damaged while left in the care of another.

Law #265: “If a herdsman, to whose care cattle or sheep have been entrusted, be guilty of fraud and make false returns of the natural increase, or sell them for money, then shall he be convicted and pay the owner ten times the loss.”

We’ve refined this a bit since 1754 BC, but the idea is the same. When you get on an elevator, you may or may not notice the if the inspection notice is up to date. But you aren’t on your phone either, checking the safety records of the elevator installation and building management companies. You just assume the elevator is in good working order. Likewise, in the grocery store, we aren’t checking the safety record for every product we buy. Food companies and grocery chains don’t compete on how rarely their products poison consumers. We can reasonably assume that our food is unlikely to poison us because the government has a system of standards and inspections. The idea is to bring the risk as close zero as possible without completely stifling production with red tape.

Our system is designed to minimize risk. As consumers in a giant country with a complex economy we can go about the business of feeding ourselves with a minimum of worry or need for litigation.

But that means our system has a hard time dealing with high risk / high value products sought by highly motivated consumers. In small, tightly knit communities where reputation and consumer knowledge can be used to manage risk, all that government red tape can feel especially cumbersome. It’s no coincidence that the food sovereignty movement is so strong in rural Maine rather than in New York City. You also don’t need to be capital L libertarian to think that there should be some provisions for people who want to take on greater risks in exchange for richer dining experiences. We might not want field dressed, wild meat at Safeway, but I think most of us feel there should be some way of buying wild venison or raw milk without committing a crime.

Maine currently does have some workarounds:

The Hunters for the Hungry program encourages hunters to donate their kill, or part of their kill, to the needy. They hand it over to the Department of Agriculture, Conservation and Forestry, which provides the processing – free – through a state-inspected facility and then dispenses the meat to the state’s food pantries and shelters. It’s a strange and sweet little twist that means that this highly regulated food ends up in the hands of people who could never afford to dine at places like Tao Yuan.

While the state’s food code doesn’t allow for the commercial sale of wild game, any nonprofit that holds fewer than 12 community dinners a year can serve legally caught game, at a fundraising dinner no less. A church in Skowhegan regularly hosts these dinners, which raise money for good causes. At Unity College, an annual wild game dinner always sells out.

Rules of the Road for Selling Raw Milk and Wild Game

Here is a list of potential rules of the road that state or local governments could enact to allow for the sale of things like raw milk or wild game. Producers and the consumers who really want to connect and understand the risks should have a way to opt out of the regulations that backstop and vouchsafe our mass market approach. But it needs to be done in an orderly way, transferring responsibility for food safety from the government to individuals at a scale that is manageable.

The basic principles are:
1. Keep markets small to minimize harms.
2. Make risks transparent and price risk into the market.
3. Enact hurdles that aren’t prohibitive, but require demonstrated motivation among consumers. There needs to be a threshold to cross as a proxy for knowledge of and acceptance of risks.
4. Require direct engagement between consumers and producers. The threat of serious reputational harm must be real. Likewise, the thought of accidentally poisoning someone is graver if you have to interact with that person.

Some concrete suggestions for applying these principles:

• A warning label that presents the risks relative to pasteurized milk, as quantified by the CDC.
• The dairy owners must be certified in sanitation best practices.
• No advertising.
• Set up laws to govern cow share, schemes where consumers buy a share in a dairy cow, so that they are equally free to drink the milk from their own cow as farmers. These don’t have to anything more than recognizing the practice and defining the terms so that any issues that land in court have some enabling law to reference.
• If you are selling raw milk, you have to buy insurance to cover the costs of dealing with poisonings. Or local governments create a food sovereignty fund that covers liabilities and levy a duty on sales. This would properly price the risk into the market.
• Only allow direct sales. On farm sales and at farmer’s markets an owner must be present – you can’t hire people to represent you at farmer’s markets if you are opting out of the mass market food safety system.
• You can do CSA style delivery schemes to cow share owners.
• Restaurants can’t put raw milk products on their regular menu, but they can do special dinners if a farm owner is present and they post a bond.
• Most controversially, states and local governments might restrict consumption of opt out products to consumers over 18 on the grounds that children are not able to evaluate risks, and smaller children are at much greater risk of serious harm in cases of food poisoning. Local governments might even make child endangerment charges explicit in cases where kids are harmed by their parents giving them raw milk.

Food sovereignty advocates will no doubt chafe at these proposals. After all they just want blanket exemptions from current laws – which would be unprincipled and an unfair market disadvantage to producers that aren’t exempt; or they want a complete repeal of national food safety laws, which isn’t going to happen.

So it’s a trade – the ability of most communities to deal with consumer safety solely through risk of reputational ruin and physical retaliation by those wronged is long past. If you want to opt out of the mass market system in an orderly and responsible way, you need to recreate some roughly analogous set of legal restraints to replace an exemption from uniform standards. You have to find ways to move responsibility from the state to the consumer in the form of greater contact between consumer and producer, higher prices to fund liabilities created by increased risk, and greater liability for the producer and consumer when things go awry.

POSTSCRIPT: A friend from Maine points out:

The core local preemption idea of the Maine constitution is that transactions between citizens of the same municipality shouldn’t be subject to state oversight. This is analogous in many ways to the commerce clause of U.S. Constitution. And this is in part because most towns in Maine are small enough that reputation absolutely does matter enough to backstop food safety risks.

There’s another aspect to this fight for food sovereignty beyond simply wanting raw milk that is otherwise prohibited. In part this is about preserving the means of production in local communities so that if national distribution systems ever fall apart, the local community has the tools and skills to ramp up production. If everyone with a single milk cow has to invest in equipment to pasteurize their product, a lot of those milk cows suddenly cost more than they are producing, and most families will opt to get rid of the cow than go upside down on costs for their raw milk.

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