Published May 14, 2021
After years of hard work, we now have revised rules for raw milk producers in Texas that open new opportunities for farmers, address problems that have occurred with sampling, and provide clear recognition for dairy herd shares!
The Texas Department of State Health Services (DSHS) has published its final rules, and we won some major victories.
BACKGROUND: By meeting strict licensing requirements (a Grade A “raw for retail” license), Texas farmers have been able to sell raw milk directly to consumers for many years, but sales have been limited to on-farm only due to DSHS rules. The Farm and Ranch Freedom Alliance first tried in 2009 to change the rules at the agency level. When the agency refused, we took the issue to the Texas Legislature and got a bill introduced, which was reintroduced for the last 5 sessions.
Majorities in both the Texas House and Senate voted in favor of our bills … but not in the same session. The Big Dairy industry (which has a stranglehold on the processing and distribution of pasteurized dairy) and some local health departments fought us, expending significant financial and political resources to kill the bills each time.
But persistent, strategic organizing pays off. The pressure we created over the years through the legislative process, together with our reputation for solid factual and legal arguments and our approach to negotiating, made an impact on the agency.
In February of last year, we launched into action when DSHS posted draft rule changes that contained several bad provisions. In addition to urging the agency to pull back on the problem provisions, we also sought affirmative changes that our farmers need – not just those that we had urged in past legislation, but additional concerns that have never made it into a bill. This opened extensive negotiations with the DSHS staff, which have resulted in some extremely positive changes.
The final rules reverse the bad provisions from the draft version and incorporate many of the affirmative changes we urged. The new rules:
- Legalize delivery of raw milk anywhere in the state that the consumers and farmers wish to arrange. Note that sales at farmers’ markets (a provision we pushed for many years) are still not allowed … but a farmers’ market booth could serve as a delivery point for pre-purchased raw milk.
- Empower farmers to take their own samples to any approved lab, so they have an option if they are concerned that their inspector or the local lab is not handling their samples properly. This is an issue that, in the past, caused several farmers to have their licenses suspended.
- Recognize the legality of animal shares. Until now, cow/goat/herd shares – under which someone purchases a share of the animal or the herd and then gets a share of the milk produced by that animal – have operated in a gray area of Texas law. We contended that they were legal under normal principles of contract law, while the agency contended that they were illegal sales. So, people with one or two cows (too few to justify the expense of a license) operated under a cloud of fear of government action. Now, as long as the herd share operates with a bill of sale and divides milk proportionally (which a true herd share should do), the agency’s new rules recognize that it is not a “sale” and is excluded from the regulations.
Other victories in the final rule:
- No requirement for farmers to keep or provide a customer list (a proposal in the draft rules, which agency staff had also urged back in 2009).
- The definition of the raw milk products that can be sold by Grade A licensed producers has been expanded. It includes not only milk, but also cream, sour cream (including acidified and cultured sour cream), plain and flavored yogurts, buttermilk, whey, eggnog, and kefir. It does not include infant formula, ice cream or frozen desserts, raw butter, or raw cheese that has not been aged a minimum of 60 days.
- Inspections will be “at least quarterly,” which is less frequent than the current requirements. Because of the reduced frequency of sampling, two consecutive violations of bacterial counts, coliform, somatic cell counts, water adulteration, or cooling temps is enough for the agency to take a farmer off-grade (as opposed to the current 3 out of 5 tests).
Delivery requirements: In addition to the general requirements for a Grade A license, the farmer must keep cold temperatures, use ice from potable water sources, and have a temperature-control sample. The farmer must keep records of how much is delivered and the sample’s temperature.
Labeling Requirements: Each bottle will have a batch number showing the date the milk was bottled (but, unlike the draft rules, the time is not required). There is also a warning label that follows the language we put forward as part of our bills in past years.
Frozen Milk: If the farmer freezes milk, there must be unfrozen samples available for the department to sample from the most current milking (the draft rules had banned freezing raw milk completely).
Test Results: Farmers must post their last two test results in the milk house or store front and notify customers that testing results are available upon request.
What is a herd share?
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. The boarding fee must be paid regardless of variations in milk production; and 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. The consumer pays costs, and receives milk, in proportion to their ownership interest.