The feds don’t want you to drink raw milk. They deem it unsafe for consumption. So, they do everything they can to prevent you from consuming  it.

Government 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 agency certainly has a right to its position, but the FDA isn’t content to just warn Americans of a potential danger. 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.”

Simply put, the federal government claims a complete prohibition on the transportation of raw milk across state lines. Carrying unpasteurized dairy from Pennsylvania to Maryland constitutes a federal crime.

Federal raw milk prohibition gives us a glimpse into just how much control the feds claim over the lives of Americans. The Farm-to-Consumer Legal Defense Fund (FTCLDF) sued the FDA over the ban. In its reply to the suit, the agency essentially argued that Americans only have a right to consume things when it grants permission.

“There is no ‘deeply rooted’ historical tradition of unfettered access to foods of all kinds.” [p. 26]

“Plaintiffs’ assertion of a ‘fundamental right to their own bodily and physical health, which includes what foods they do and do not choose to consume for themselves and their families’ is similarly unavailing because plaintiffs do not have a fundamental right to obtain any food they wish.” [p.26]

In its response, the FDA went as far as to claim it can not only regulate transport of raw milk across state lines, but can even 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 clearly wants complete prohibition of raw milk. Its rhetoric makes that abundantly clear. The federal government already maintains an interstate ban. It claims the power to ban it within the borders of a state as well. Some insiders say it’s only a matter of time before the feds try to institute a complete ban on raw milk. 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.

So, how can Americans fight back against a massive federal agency intent on controlling something as basic as what they choose to put into our own bodies?

Utilize the power of state governments.

While the feds maintain their ban, states can legalize the production, sale and consumption of raw milk within their own borders. Of course, such state laws don’t directly nullify the federal prohibition, but they take an important step in that direction.

Think of it this way – if all 50 states allow raw milk, will the federal ban even really matter?

It might, if the feds can muster up the resources to stop people from transporting raw milk across state lines. But history indicates they can’t.

As far as the interstate ban goes, even if the feds did manage to police every state border and shut down the interstate transportation of raw milk, markets within the states could easily grow to the point that local sales would render the federal ban on interstate commerce almost pointless.

And 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.

We’ve seen this demonstrated dramatically in states that have legalized industrial hemp. When states began to legalize hemp production, farmers began growing industrial hemp in those states, even in the face of a federal ban. And while the federal government maintains its prohibition, and farmers face 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.

State actions can open up space for a strong raw milk market to take root and grow. Ultimately, when enough people and enough states join in, federal efforts to ban this food will be nullified in practice.

Mike Maharrey

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