Despite ongoing battles over state laws governing raw milk, the number of states allowing on-farm or retail sales of raw milk for human consumption remains the same now as three years ago, according to a recent survey conducted by the National Association of State Departments of Agriculture.

Raw milk is milk that hasn’t been pasteurized to kill harmful bacteria such as E. coli and Salmonella.

The results of the survey show that 30 states still allow the sale of raw milk for human consumption, and 20 states prohibit it — the same numbers and the same states as those in the survey the association conducted in 2008.

But what has changed in the past three years is that five states — New Hampshire, Pennsylvania, Idaho, Vermont and South Dakota — have adopted stricter standards for how free of bacteria the raw milk must be. In Idaho, for example, the raw-milk producers and the Idaho Dairy Association and milk processors hammered out a compromise that doubled the strength of the state’s previous standard for raw milk.

The survey, which was conducted from April 22 through the end of June, in cooperation with the National Association of Dairy Regulatory Officials, marks the third such survey the association has done. As has been the case in previous years, the surveys are conducted based on interest in the various state laws governing raw-milk sales, as well as on public health concerns about raw milk on the part of state health departments and federal agencies such as the U.S. Food and Drug Administration and the Centers for Disease Control and Prevention.

Under federal law, raw milk for human consumption cannot be sold across state lines.

Bob Ehart, public policy director and food-safety official with NASDA, told Food Safety News that the association usually conducts a raw-milk survey every four years. But because of the recent passage of the Food Safety Modernization Act, along with ongoing attempts in some states to have laws pertaining to raw milk changed, the association decided it would be better to gather updated information about current state laws as soon as possible.

The survey did not include herd shares. Under a herd-share arrangement, the consumer purchases a “share” of a cow (or goat or sheep) and in return receives a portion of the milk produced.

Each state has its own approach to herd shares. In Colorado, for example, herd shares are allowed with no testing or inspections required, although the producer must register with the state. In Washington state, herd shares are also allowed but the producer must be licensed by the Washington State Department of Agriculture. Licensing requires milk testing and inspections by the department.

Hawaii and Rhode Island did not participate in the survey. However, the association’s press release said that information collected from a third-party source indicated that raw milk sales in Hawaii are illegal, as was the case in 2008. In Rhode Island, they are legal, in some specified manner, as was the case in 2008.

Survey results

Here’s a rundown of the recent survey’s results, according to the information submitted by the states to a questionnaire from the National Association of State Departments of Agriculture.

On the farm

Thirteen states — Arkansas, Illinois, Kansas, Kentucky, Massachusetts, Minnesota, Mississippi, Nebraska, New York, Oklahoma, Rhode Island, Texas, and Wisconsin — restrict legal sales to the farm where the milk is produced.

Four of these states — Minnesota, Wisconsin, Oklahoma, and Illinois — further restrict sales to only “incidental occurrences” (occasional sales, not as a regular course of business; no advertising).

Four of these states — Arkansas, Kentucky, Mississippi and Rhode Island — restrict sales to goat milk only, with Kentucky and Rhode Island also requiring a prescription from a physician.

Kansas allows sales directly to the consumer on the farm with minimal on-farm advertising.

In the stores

Eleven states — Arizona, California, Connecticut, Idaho, Maine, New Hampshire, New Mexico, Nevada, Pennsylvania, Utah and Washington — allow the sale of raw milk at retail stores separate from the farm.

Of these, Utah requires the store to be owned by the producer, even though it can be located off the farm.

Variations on a theme

Five states — Colorado, Oregon, Missouri, South Dakota and Vermont — have “unique” regulations that don’t fit in either of the two main farm sales or retail sales categories.

For example, Oregon allows on-farm sales of raw cow’s milk but only from farms with no more than two producing cows, nine producing sheep, and/or nine producing goats. But only goat milk is allowed to be sold retail off the farm.

In South Carolina, raw milk sales are legal on the farm and, to a limited extent, in retail stores. Farmers must obtain a permit and can sell only raw milk, not raw milk products. The state Department of Health and Environmental Control prohibits the sale of any processed raw dairy product. Advertising is legal.

Three of the states — South Dakota, Missouri, and Vermont — allow varying methods of sales to consumers, for example, direct to consumers or at farmers markets, but not to stores. In the case of Vermont, raw milk may only be delivered directly to consumers’ homes and is not allowed to be sold at farmers markets.

Colorado prohibits all sales of raw milk, but raw milk may be legally obtained through herd-share arrangements.

How clean is the milk?

When regulators set standards for how clean milk should be, they use what are referred to as “coliform counts” as a guide.

Based on information from the California Department of Food and Agriculture, coliforms are a group of bacteria commonly found in the environment — for example, in the soil, surface water, vegetation, and the intestinal tracts of warm-blooded animals, among them milk-producing animals such as cows, goats, and sheep. And while most coliform bacteria do not cause disease, a small percentage of them can cause illnesses in people, especially young children, the elderly and those with weakened immune systems.

Examples of these illness-causing coliform bacteria are E. coli O157:H7, Salmonella and Campylobacter, food poisons that can lead to serious health problems and, in severe cases, death.

The use of coliform counts as an indicator of sanitation has been a common tool in public health protection for many years. Elevated levels of coliforms in milk and dairy products suggest that the milk was produced, processed or packaged under unsanitary conditions.

In the case of raw milk, where pasteurization is not used to kill coliform bacteria, coliform counts reflect a farm’s sanitation practices throughout milk handling, from the cow to final bottling.

Jason Kelly, spokesman for the Washington State Department of Agriculture, told Food Safety News that the presence of coliforms in food products does not indicate that disease-causing pathogens such as E. coli and Salmonella are present. In fact, many foods contain low levels of harmless bacteria.

“But elevated coliform counts signal that the farm may need to improve its handling or manufacturing practices, said Kelly. “If these unsanitary conditions continue, harmful pathogens may find their way into the foods, and consumers could be at risk for foodborne disease.”

The Washington State Department of Agriculture also tests for harmful pathogens, said Kelly.

When looking at coliform counts to gauge sanitation practices, a standard of no more than 10 coliform bacteria per milliliter (there are 946.4 milliliters in a quart of milk) conforms with standards set for pasteurized milk by the U.S. Food and Drug administration, the USDA, the Canadian Food Inspection Service, and the European Economic Community.

However, Michele Jay-Russell, program manager at the Western Center for Food Safety, University of California, Davis, told Food Safety News that while coliform counts are an important tool, low coliform counts don’t rule out the possible presence of pathogens such as E. coli and Salmonella.

“It’s a ‘semi-crude’ predictor, not a ‘perfect predictor’,” Jay-Russell said, referring to coliform counts.

State coliform standards

According to NASDA’s recent survey of state laws pertaining to raw milk, 11 states that allow the sale of raw milk at retail stores separate from the farm have coliform standards.

Eight of these states — Arizona, California, Maine, New Hampshire, Nevada, Pennsylvania, Utah and Washington — currently have a coliform standard of no more than 10 coliform bacteria per milliliter, which is equivalent to the national and some international standards for pasteurized milk.

Vermont and South Dakota, both of which allow farmers to deliver raw milk directly to consumers, at a farmers market, but not to stores, also have a coliform standard of no more than 10 coliform bacteria per milliliter.

In Oregon, where only raw goat milk can be sold retail, the coliform standard is also no more than 10 coliform bacteria per milliliter. However, in the case of a state exemption for micro- dairy producers for on-farm sales of raw milk in Oregon, there is no coliform standard.

Idaho’s coliform standard is no more than 25 coliform bacteria per milliliter.

Connecticut and New Mexico have a coliform standard of no more than 50 coliform bacteria per milliliter.

Missouri’s coliform standard is no more than 100 coliform bacteria per milliliter.

In South Carolina, where raw milk is allowed to be sold on the farm, and to a limited extent in retail stores, the coliform bacteria standard is no more than 30 coliform bacteria per milliliter.

Mark McAfee, founder and CEO of Organic Pastures Dairy near Fresno, Calif., the largest organic raw-milk producer in the nation, gives a thumbs-up to those states that strengthened their standards for raw milk.

“That’s very good news,” he told Food Safety News. “I’m very supportive of good state standards. Concern about pathogens (harmful bacteria) in milk is the area of most concern in public health.”

McAfee said that demand for raw milk continues to grow. In fact, he’s increased the size of his herd to 430 milking cows in response to an 18 percent increase in demand in 2010.

“The government needs to wake up and realize that it can’t wish this away,” he said. “Instead of fighting against it, it should initiate food-safety plans for raw milk and include the producers in the dialogue.”

He believes that the federal government’s current point-blank opposition to raw milk creates a situation where people who can’t get it legally are “driven into the black market” to get it. That can be risky because producers they buy from might not be following strict sanitation practices.

Legislative forays

Raw-milk advocates and producers in a handful of states tried various strategies this year to change the game plan in their states, but without success for the most part.

For example, in New Jersey, a bill to allow the sale of raw milk through a permit process overseen by the Agriculture Department came to the floor with a unanimous thumbs-up from the Agriculture Committee and sailed through the Assembly’s lower house on a vote of 71 to 6, with one abstention.

Under the bill, dairies that obtain permits from the state Department of Agriculture could produce, sell and ship raw milk, which would be subject to quality standards and testing.

In March, the proposal was referred to the state Senate’s Economic Growth Committee but didn’t go anywhere from there.

Even so, political gurus in the Garden State say the bill can’t be written off as dead — that it could be considered in the 2012 session.

In April, Texas state lawmakers held a hearing that went until almost midnight on a bill that would ease restrictions on raw milk and expand the places where it could be sold — at farmers markets and county fairs, for example.

But as passionate as the testimony in favor of the bill may have been, the bill got stalled in the House Public Health Committee.

In Oregon, a bill, dubbed the “Family Farm Act,” included a provision to expand Oregon’s current three-cow, nine-goat/sheep limit for raw-milk producers who undergo licensing and agree to conduct bacteria tests.

The bill failed to get enough traction to be voted on by the House Agriculture and Natural Resources Committee.

In Wyoming, the House Agriculture Committee voted 6-3 against a bill that would have allowed raw milk to be sold through herd-share agreements.

Sales of raw milk are illegal in Wyoming, although some farmers sell it “under the table” through informal herd-share agreements.

In Minnesota, no action was taken on a bill that would have permitted the sale of raw fluid milk products and raw milk cheese intended for human consumption through direct farm-to-consumer sales, including deliveries.

In Wisconsin, where Democratic Gov. Jim Doyle last year vetoed legislation that would have allowed farmers who test their dairy’s milk monthly to sell raw milk (as long as no pathogens are found in it), new legislation has surfaced. The companion bills would allow a dairy farmer with a license and grade A permit to register with the Department of Agriculture, Trade, and Consumer Protection for on-farm sales of unpasteurized milk and milk products.

Republican Gov. Scott Walker has indicated he will sign the bill, although he has said he wants more “safety provisions” than are provided in the measure as written.

The bill went through the process to get a fiscal note, and even though no committee action has been scheduled, it is still technically alive because the Wisconsin Assembly does not adjourn until Dec. 31.

How safe is raw milk?

According to the Centers for Disease Control and Prevention, raw milk and raw milk products (such as cheeses and yogurts made with raw milk) can be contaminated with bacteria that can cause serious illness, hospitalization, or death.

CDC warns that the risk of getting sick from drinking raw milk is greater for infants and young children, the elderly, pregnant women, and people with weakened immune systems, such as people with cancer, an organ transplant, or HIV/AIDS, than it is for healthy school-aged children and adults. But, the agency also reminds people that it’s important to remember that healthy people of any age can get very sick or even die if they drink raw milk contaminated with harmful germs.

From 1998 through 2008, 86 outbreaks due to consumption of raw milk or raw milk products were reported to CDC. These resulted in 1,676 illnesses, 191 hospitalizations, and 2 deaths. Because not all cases of foodborne illness are recognized and reported, the actual number of illnesses associated with raw milk likely is greater, according to CDC.

The agency is currently working on 2009 outbreak figures and expects to have them ready “soon,” a CDC spokesperson told Food Safety News.

In a more up-to-date look, Jay-Russell, Western Center for Food Safety, told Food Safety News that in her review of preliminary reports of outbreaks from 2010 to 2011 through this month, she found 17 raw-dairy-related outbreaks that caused 178 illnesses and 24 hospitalizations, compared with one pasteurized-dairy-related outbreak, which caused 23 illnesses and two hospitalizations.

“When compared side by side for that time period, there is an amazing disproportion of outbreaks, illnesses, and hospitalizations from raw vs. pasteurized milk,” she said.

Despite warnings about the health risks associated with raw milk, raw-milk advocates say they prefer raw milk over pasteurized milk because it’s “more natural,” and tastes better. Many raw-milk advocates also believe it can help build immunity and prevent or cure health problems such as lactose intolerance, asthma, allergies diabetes, cancer and autism, among others, although according to the CDC there are no health benefits from drinking raw milk that can’t be obtained from pasteurized milk. A recent Stanford University clinical trial refuted the notion that lactose intolerant individuals can consume raw milk without difficulties.

The CDC cautions that when looking at state laws and their relationship to illnesses caused by contaminated raw milk, states that allow the sale of raw milk and raw-milk products for human consumption have more raw-milk-related outbreaks of illness than states that do not allow raw milk to be sold.

Hannah Gould, a foodborne-disease expert with CDC, said that an analysis on this topic is expected to be published shortly.

She also explained that while there have been some outbreaks linked to pasteurized milk, those have been caused by contamination of the dairy products at some point after pasteurization, during food handling, for example, or sometimes at the retail level.

Gould said it’s difficult to compare the number of outbreaks and illnesses associated with raw and pasteurized milk because far more Americans consume pasteurized dairy products. For example, FoodNet surveys of the general population have found that only 1 to 3 percent of Americans consume unpasteurized dairy products.

Florida attorney Pete Kennedy, president of the Farm-to-Consumer Legal Defense Fund, told Food Safety News that despite outbreaks linked to raw milk, demand for raw milk keeps going up.

“Usually from what we see overall, news about outbreaks provides people with information about raw milk, and that gets their attention,” he said. ”Ultimately demand goes up.”

He also said that with more people interested in buying direct from the farm, “raw milk often gets them out to the farm,” and once they’re there, they often buy some of the farm’s other products such as meat, produce and eggs.

But in looking at comparisons of food poisonings from raw milk with those from pasteurized milk, Jay-Russell, Western Center for Food Safety, cautions that raw milk appears to be disproportionately susceptible to pathogen contamination. ”At this time, practical cost-effective interventions to protect raw milk from contamination are limited, and consumers should be very cautious or avoid purchasing these products,” she said.

—————————

Survey questions

1. Is the sale of raw milk for direct human consumption legal in your state?

2. Do your state laws or regulations expressly prohibit animal share raw milk operations?

3. Do your state laws or regulations authorize raw milk sales only on the farm?

4. Are raw milk sales at retail stores or markets, separate from the farm, legal in your state?

5. Does your state have any microbial standards for raw milk sold to the consumer? If yes, please specify.

6. Is sampling for compliance with the above standard(s) conducted at the farm bulk tank, or at the final package/bottle?

7. Are there any county or local government bans on raw milk sales in your state?

8. Approximately how many producers of milk to be sold raw are operating in your state?

9. What has changed regarding the regulation of raw milk since the 2008 survey?