The Texas Department of State Health Services (DSHS) has published proposed rules for raw milk that make important improvements to the current rules! 

For those who haven’t followed this issue, the current law provides that Texas farmers can become licensed to sell raw milk directly to consumers (a Grade A “raw for retail” license), but DHS rules currently only allow on-farm sales.

The Farm and Ranch Freedom Alliance first attempted to change the rules at the agency level in 2009. When DSHS refused to change the rules, we took the issue to the Texas Legislature, where our bill has been introduced in five consecutive sessions.  

A majority of both the House and the Senate have voted in favor of our bills … but not in the same session. Big Dairy, which has a stranglehold on the processing and distribution of pasteurized dairy, has joined forces with the Texas Medical Association and used their significant financial and political resources to kill the bills each time. But persistent grassroots organizing pays off, and the pressure we’ve created through the legislative initiatives has made an impact on the agency’s rulemaking process.

In February, we alerted our members when DSHS posted draft rule changes containing several bad provisions. We launched into action, rallying public comments, and submitting our own comments to the agency. In addition to urging removal of the problematic provisions, we also sought affirmative changes that our farmers need – both those that we have urged in past legislation and additional changes that have never made it into a bill.

This led to extensive discussions with DSHS, which have resulted in some incredibly positive developments. 

The agency now has published proposed rules – the last step before new final rules. The proposed rules reverse almost all the bad provisions from the earlier draft version and incorporate several of the affirmative changes we urged. Most importantly, the proposed rules will legalize delivery of raw milk from farmer to consumer anywhere in the state. The proposed rules also empower farmers to take their own samples to any approved lab, so they will no longer be powerless if an inspector or lab is not handling their samples properly – an issue that has led to the suspension of several farmers’ licenses. There are additional positive changes, discussed in the “More Information” section below.

There is one problem, though. The agency’s old definition of “sale” (and thus what type of action is subject to the agency’s regulatory authority) was overly broad and ambiguous. The proposed rule includes a much simpler definition, which is good – except that it asserts that the term includes “transactions conducted as part of animal shares, animal pools, involving the transfer of milk from the farmer to the consumer.” 

This definition would attack the legality of herd shares, where individuals buy a share of a cow, goat, or herd, and are entitled to the milk from the animal or herd they then own. These arrangements are typically used by extremely small farmers and homesteaders, for whom the costs of licensure and the accompanying regulatory burden are simply not feasible. Whether the agency’s definition would hold up in court is debatable, since the foundational concept of a herd share is that the person owns the animal and is simply consuming their own animal’s milk, which is not subject to the agency’s jurisdiction. But given the very small size of a typical herd share, if the herd share language is included in the new definition, many herd shares will shut down rather than risking an expensive lawsuit with DSHS.

We are urging DSHS to drop the herd share language completely. But we know the agency is facing pressure to deal with people who are selling without a license and without being a true herd share, so we have also developed language that addresses both that issue and the right of Texans to enter into herd share arrangements.

TAKE ACTION

The agency is accepting public comments until January 19, 2021. You can email your comments to Sofia Stifflemire at milk.regulatory@dshs.texas.gov or fax to 512-834-6756.

Please take a moment to submit a comment in support of the proposed rules as a whole, in particular the provision to allow delivery by the farmer or the farmer’s employee “to a location determined by the [farmer] and customer, as long as the distribution does not violate a local ordinance.”

Then urge the agency to either drop any attempt to classify herd shares as “sales,” or to clarify that a herd share that includes a bona fide bill of sale and a boarding agreement is not a “sale” of milk. 

Your comments can be very brief – just a few sentences. They will have more impact if you share (briefly) why this matters to you, whether as a raw milk consumer or simply someone who wishes to have greater choice in what foods you buy and from whom.

MORE INFORMATION

What is a herd share?  

A herd share (also known as a cow or goat share) is an arrangement under which a person purchases a portion or share of a milking herd or an individual milking animal.

First, the person purchases a share of the animal or herd through a bill of sale. Then they enter into a boarding agreement with the farmer, paying the farmer a fee to house, care for, and milk their animal(s). 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 – there’s no sale of milk; the consumer already owns the animal’s milk.

You can read the proposed rules HERE. 

What are the differences between the existing rules, the draft rules from earlier this year, and the new proposed rules?

1. “Grade A raw milk and Grade A raw milk products may be delivered by the permitted processor, or the permitted processor’s employee, to a location determined by the processor and customer, as long as the distribution does not violate a local ordinance, provided that …” the farmer keeps the milk at appropriately cold temperatures, uses ice from potable water sources, and has a temp-control sample. The farmer must keep records of how much is delivered and the temperature of the sample.

• This finally removes the prohibition on delivery, allowing farmers and consumers to agree to the arrangements they prefer.

2. 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 creams), 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. We sought to allow the sale of raw butter, but that was denied.

3. There are new labeling requirements:

• Each bottle must have a batch number showing the date the milk was bottled (but, unlike the draft rules, the time it was bottled is not required). 
• There is also a warning label that follows the language we put forward as part of our bills in past years.

4. Inspections will be “at least quarterly,” which is less frequent than the current requirements.

5. Farmers can take their own coliform samples to any lab DSHS has approved for milk testing, providing they notify DSHS of their intent to do so and they follow a regular schedule. This will allow farmers to control how their samples are handled and address concerns about the quality control at some labs.  Previously, farmers had no recourse.

6. 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).

7. If the farmer freezes milk, there must be unfrozen samples from the most current milking available for DSHS to sample (the draft rules had banned freezing raw milk completely).

8. Farmers must post their most recent test results in their milk house or store front and notify customers that testing results are available upon request.