Page 77 - Winter2009

RAW MILK UPDATES
By Pete Kennedy, Esq.

WISCONSIN: State Representative Chris Danou (D-Trempealeau) and State Senator Pat Kreitlow (D-Chippewa Falls) have
introduced a bill that would legalize the on-farm sale of raw milk and raw milk products in Wisconsin. Under the bill, any
milk producer who has a Grade A dairy farm permit shall be issued a permit by the Department of Agriculture, Trade and
Consumer Protection (DATCP) upon the producer’s request. Specifically, a milk producer may sell raw milk, buttermilk,
butter and cream directly to a consumer on the producer’s farm if all of the following requirements are met:
1. The producer has a permit to sell raw milk and raw milk products;
2. Either milk producer or the consumer provides a sanitary container for the product that has been prepared in a
sanitary manner and the container is filled in a sanitary manner; and
3. At the place where products are sold, the milk producer displays a sign that is easy for a consumer to read and
that states, “Raw milk products sold here. Raw milk products do not provide the protection of pasteurization.”
The bill stipulates that a milk producer who sells a product in accordance with these requirements “is immune from
civil liability for the death of or injury to an individual caused by the product, unless the death or injury was caused by
willful or wanton acts or omissions.”
Introduction of the bill comes at a time when DATCP has been stepping up enforcement actions against those farmers
the agency believes are selling raw milk. DATCP has issued orders to two dairies—Trautman Family Farms of Stoughton
and Zinniker Farm, LLC of Elkhorn—prohibiting them from making raw milk available to anyone not either residing or
working on the dairy farm. In the case of Zinniker Farm, DATCP also made a criminal referral to the Walworth County
District Attorney, requesting that the DA investigate the Zinnikers for the illegal sale of raw milk; the agency is holding
the farm responsible for thirty-five cases of food-borne illness attributed to Campylobacter jejeuni (see Wise Traditions Fall
2009 for background on the case). Subsequently, Zinniker Farm, DATCP and the Walworth DA entered into a stipulation
in which the farm, to avoid prosecution by the DA, agreed not to violate the Wisconsin laws prohibiting the sale of raw
milk. Scott Trautman has requested an administrative hearing to overturn the DATCP order against his farm; the hearing
is scheduled to take place this spring. Since issuance of the stop order, Trautman has been an outspoken critic of DATCP
and has helped focus the public’s attention on the fact that the agency is no friend of family farms.
DATCP did not limit its enforcement action to farmers; it has also been conducting an investigation of Max Kane, the
owner of Belle’s Lunchbox (a food buyers club based in Viroqua). Kane was refusing to comply with DATCP’s request to
turn over business records to the agency, including the names and addresses of Belle’s Lunchbox members, on the grounds
that the request violated his right against self-incrimination and also that the club was not within DATCP’s jurisdiction. A
rally for Kane took place on December 21 in Viroqua with David Gumpert, Mark McAfee and David Schmidt scheduled
to speak.
DATCP has indicated its policy will be to take action against anyone it suspects of selling raw milk. The agency’s
campaign against raw milk could not come at a worse time for the state’s dairy farmers, many of whom are desperately in
need of the additional income that selling raw milk and raw milk products would provide. Prices being paid to farmers by
dairy processors for milk have increased slightly in recent weeks but are still below the farmers’ cost of production. There
are more dairy farms in Wisconsin than in any other state in the country but that number is fast decreasing. According to
Wisconsin’s Agricultural Statistics Service as of the first week of November, there were 12,965 dairy herds in the state, a
drop of over 500 herds from just a year earlier. In 1995 there were about 29,000 dairy farms in the state.

SOUTH DAKOTA: The South Dakota Department of Agriculture (SDDA) has issued proposed raw milk regulations. Even
though the stated purpose for the proposed rules is to protect public health, the rules are an attempt by SDDA to ensure
that no raw milk is sold legally in South Dakota. Under current law, the general prohibition on the sale of raw milk does
“not apply to milk, cream, skim milk or goat milk occasionally secured or purchased for his personal use by any consumer
at the place or farm where the milk is produced;” neither does it “apply to any active farm producer of milk, selling and
delivering his own production direct to consumers only.” There is no requirement that a farm be a licensed Grade A dairy
under these exceptions. The only requirement for those selling under the exceptions is that any unpasteurized milk sold
be “clearly labeled by the producer as ‘raw milk.’”
The proposed rules, in effect, take away rights given by the legislature by imposing expensive requirements that those
dairies wanting to sell raw milk would not be able to afford. The proposed rules are typical barriers-to-entry regulations
that will create a de facto ban on the sale of raw milk. The proposed regulations would change the current statutory ex-
ception by requiring that the producer must have both a milk plant permit (which requires a bottling machine) and a milk
producer’s license.

WINTER 2009 Wise Traditions 75