Published January 11, 2021
In response to the Texas Department of State Health Services’ proposed new rules for the sale of raw milk in the state, Farm and Ranch Freedom Alliance submitted the following formal comments. The deadline to submit comments is January 19, 2021.
(See https://farmandranchfreedom.org/new-dshs-rules-raw-milk-2020 for more information.)
January 11, 2021
DSHS Milk & Dairy Unit
Via email: firstname.lastname@example.org
Dear DSHS Staff:
The Farm and Ranch Freedom Alliance (FARFA) appreciates the opportunity to submit comments on the proposed rules amending Title 25, Chapter 217, Subchapters A and B.
FARFA is a nonprofit advocacy organization that supports independent family farmers and protects a healthy and productive food supply for American consumers. FARFA promotes common sense policies for local, diversified agricultural systems.
FARFA appreciates the extensive work that has gone into developing these proposed regulations, and the time that staff has spent to address the concerns that we and other stakeholders have raised. While not all of our requested changes to the draft regulations were made, we believe that the proposed regulations as a whole are a very significant improvement over both the draft regulations and the current regulations.
In particular, we support the following changes that are being proposed:
- Allowing delivery statewide.
- Adding reasonable labeling provisions, such as the date on which the milk was bottled and a warning label, while not requiring the excessive draft provision to require the time of bottling.
- Allowing farmers to bring their coliform samples to approved labs for testing.
- Continuing to allow the freezing of milk so long as a fresh sample is available for testing.
- Clarifying the definition of milk abnormalities and removing the overly broad term “veterinary products.”
FARFA has three changes that we would recommend to the language in the proposed regulations:
- Recognizing that a true herd share, in which someone has a bona fide ownership interest in the animal(s), does not constitute the sale of milk.
- Changing “farmers’ employee” to “farmer’s agent” in the section on delivery.
- Clarifying that the farmer must produce the most recent test results upon consumer request (rather than leaving it ambiguous as to whether older results may also be required).
Each of these recommendations is explained further below.
I. Herd shares are not “sales” of milk.
FARFA is very concerned that the proposed definition of “sale” claims that herd shares would constitute sales of milk. The agency’s old definition of “sale” was overly broad and ambiguous, and FARFA agrees with the need for a new definition, but not the inclusion of herd shares. The first half of the proposed definition is excellent, and FARFA would urge the agency to stop there.
If the agency is determined to go beyond the standard dictionary definition of sale and discuss non-standard arrangements, it is important to first understand what a herd share is. A herd share (also known as a cow or goat share) is the purchase of ownership of a portion (or share) of a milking herd or individual milking animal. A consumer first buys a share of the animal or herd through a legal bill of sale.
They then enter into a boarding agreement with the farmer, paying the farmer a (typically monthly) fee to house, care for, and milk their animal. The boarding agreement fee covers costs of feed, maintenance, time, labor, equipment depreciation, etc. This fee is not a charge for the milk. For example, the boarding fee must be paid regardless of variations in milk production; similarly, even if a herd share owner is out of town for a few weeks, they still pay the boarding fee even though they aren’t getting their milk while they are away.
The farmer provides the consumer with their share of the milk produced at no additional expense – because it’s not a sale of the milk, it’s that consumer’s milk already. To classify this as a “sale” is factually and legally inaccurate.
Admittedly, there are some farmers who have provided milk to consumers under arrangements that have been called “herd shares” without complying with these provisions. These arrangements, whatever they are called, are not actual herd shares. To the extent that these arrangements are of concern to the agency, they can be addressed without improperly claiming jurisdiction over herd shares.
We urge the agency to adopt the following definition of “sale”:
The term “sale” or “sell” means a monetary transaction, barter, offer, or trade that involves the transfer of milk, milk products, raw milk, raw milk products, dairy products, or frozen dessert products. [Deleting the language that follows this statement in the proposed regulations.]
Alternatively, we urge the agency to modify its language regarding herd shares to the following:
The term “sale” or “sell” means a monetary transaction, barter, offer, or trade that involves the transfer of milk, milk products, raw milk, raw milk products, dairy products, or frozen dessert products. The term also includes the transfer of milk from the farmer to the consumer under unlicensed agreements, except that a transfer conducted under a bona fide bill of sale and boarding agreement does not constitute a “sale.”
II. Delivery by farmers’ agents.
FARFA strongly supports the provisions in proposed section 217.31 to allow delivery of milk. This common-sense change removes the unnecessary burden on consumers to drive to the farm every time they want milk.
FARFA would propose a minor change to proposed 217.31(b). The proposed version states that Grade A raw milk and raw milk products “may be delivered by the permitted processor, or the permitted processor’s employee.” FARFA recommends that the final rule instead state that they “may be delivered by the permitted processor, or the permitted processor’s agent.”
We presume that the agency desires to ensure that the farmer maintains responsibility and liability during delivery. That can be accomplished without limiting the delivery to employees only. Stating that the delivery must be done by the farmer’s “agent” would cover employees, volunteers, and whatever other arrangement works best for that farm, while still ensuring that the responsibility for complying with the regulations remains with the farmer.
III. Providing test results to customers.
Proposed Section 217.33(b) provides: “A processor must post the most recent lab results in the milk house or store front and notify customers that testing results performed in §217.26 of this title (relating to Examination of Grade A Raw Milk and Grade A Raw Milk Products) are available upon request. The testing results must be supplied to the customer within 24 hours of the request.”
The most logical reading of this provision is that the farmer must supply the same test results as are posted (i.e. the most recent lab results) to the customer upon request. But the proposed wording is somewhat ambiguous and has the potential to cause misunderstandings between the farmers and consumer. FARFA thus requests that the agency clarify the wording as follows: “The most recent testing results must be supplied to the customer within 24 hours of the request.”
FARFA appreciates the opportunity to work with the agency throughout the process of improving the rules governing Grade A Raw for Retail dairies.