Page 100 - Spring2020

The butter ban is illegal according to a statute (21 USC 341) in the Federal Food, Drug and Cosmetic Act that
governs “standard of identity” for food, which are requirements prescribing what a food product must contain to be
marketed under a certain product name in interstate commerce. For instance, the standard of identity for milk requires
that it be pasteurized or ultra-pasteurized and that it contain not less than 3.25 percent milkfat [21 CFR 131.110]. The
citizen petition notes that FDA addressed the question of requiring pasteurization as part of a standard of identity
regarding milk and found that such health-based requirements were properly addressed as standards of identity stat-
ing, “The Commissioner rejects the contention that section 401 of the act does not permit provisions of a standard
of identity to be promulgated for health reasons.” [39 Fed. Reg. 42,351 (Dec. 5, 1974)]
Congress has given FDA power to establish standard of identity requirements for most foods but specifically
prohibits the agency from doing so for butter. In its response, FDA justified its violation of the standard of identity
by claiming the Public Health Service Act gives it authority to require pasteurization for butter as part of its power to
regulate communicable disease, a stretch given the food safety track record of raw butter. FDA, in its response, argued
that standard of identity was about protecting consumers against economic adulteration and reflecting consumer ex-
pectations about food, contradicting its earlier statement that health reasons can also be a factor in these regulations.
A second area where FDA is on weak ground is that, in the lawsuit that resulted in the court order to FDA to im-
pose the ban [Public Citizen v. Heckler, 653 F. Supp. 1229 (D.C. District, 1987)], butter is not mentioned at all in the
court record of the case. Butter, like cheese, is considered a manufactured milk product. The lawsuit sought the ban
of all raw milk and raw milk products in interstate commerce. The definition of “milk products” in the FDA Pasteur-
ized Milk Ordinance (PMO)—the governing document for the production and distribution of milk and milk products
in interstate commerce—does not include butter or cheese.
The court record discussed only dairy products that were listed in the PMO definition of “milk product.” When
the court ordered FDA to ban “raw milk” and “raw milk products” it was only those products under that definition.
In its response, FDA claimed the court order banned all products made from raw milk but if the agency is cor-
rect in its interpretation, aged raw milk cheeses wouldn’t be legal in the U.S. as they have always been. The impetus
for the litigation that resulted in the court order was the lack of FDA enforcement on standard of identity regulations
requiring pasteurization for milk and various milk products—because of the statutory prohibition, there is no standard
of identity regulation for butter.
FTCLDF is appealing the FDA denial to the federal district in court in the District of Columbia. The appeal to
challenge FDA is likely to be costly as it will require paying scientific experts as well as attorneys. FTCLDF could really
use your financial support. Overturning the butter ban is a big step toward a day when all raw dairy products will be
legal in interstate commerce. To donate specifically to support the case to overturn the FDA decision, please go to
farmtoconsumer.org/rawbutter or call (703) 208-3276. The Weston A. Price Foundation has provided twelve thousand
dollars in support of this cause.

KANSAS: BILL BANNING RAW MILK FAILS
In November 2019, the Kansas Department of Agriculture agreed in settling a lawsuit not to enforce the off-farm
advertising ban on raw milk sales in the state; the expectation was that the Kansas Legislature would repeal the statutory
provision establishing the ban in the 2020 legislative session [see Wise Traditions Winter 2019 issue for background].
What raw milk supporters did not anticipate in the 2020 session was the introduction of Senate Bill 300, legislation
proposing to ban the sale of any raw milk product (other than aged raw cheese by licensed manufacturers). Kansas has
one of the more favorable raw milk laws in the U.S., allowing the unregulated on-farm sale of all raw dairy products.
Thanks to a big response in opposition to the bill, SB 300 did not make it out of committee.
The bill legalizing off-farm advertising, Senate Bill 308, was introduced but there was a surprise in that legislation
as well. SB 308 had labeling and advertising requirements mandating that the following statement be included in each:
“This product contains ungraded raw milk that is not pasteurized and, as a result, may contain organisms that cause
food-borne illness, especially in infants, young children, older adults, pregnant women and people with weak immune
systems.” The warnings were to be the same size as the largest font used elsewhere in the label or advertisement.
Thanks again to a strong response from raw milk proponents, the Senate Committee on Agriculture and Natural
Resources amended SB 308 so that the only required labeling and advertising language for the sale of raw milk and
raw milk products was a statement that the raw dairy product is not pasteurized. The bill is expected to become law
some time this spring.

100 Wise Traditions SPRING 2020