Discussions among legislators, public health officials, and consumers persist across the United States as the debate over raw milk sales continues. Raw milk is milk that has not gone through the bacteria-killing process of pasteurization. While some believe that drinking milk without pasteurization has a better nutritional value, many others focus on the health risks of consuming the product. Recently, a story that has brought national attention to the topic is Amos Miller and his legal battle with the Pennsylvania Department of Agriculture (the “Department”).
Federal Regulation of Raw Milk
The FDA defines raw milk as “milk from cows, sheep, or goats that has not been pasteurized to kill harmful bacteria.” Pasteurization is a practice that kills dangerous bacteria that can be found in raw milk, such as Salmonella, E. coli, and Listeria. In 1987, a FDA regulation mandated that all milk sold in interstate commerce must be pasteurized – effectively banning the selling of raw milk from state to state. 21 C.F.R. § 1240.61. The FDA makes clear though that it does not prohibit an individual from purchasing raw milk and transporting it across state lines for their own personal consumption. For example, under the federal regulations, an Arkansas farmer who produces and sells raw milk would not be able to sell their raw milk product to a consumer in Missouri. However, a consumer from Missouri could come to Arkansas, purchase the raw milk product, and take it back home to Missouri for their personal consumption.
State Regulation of Raw Milk
The prohibition or allowance of sales of raw milk in intrastate commerce is up to the determination of each state. This means individual states may permit the sale or distribution of raw milk within state lines. At this time, eighteen states outright ban the sale of raw milk, while 32 allow its sale when the outlined conditions are met. These conditions vary, and may include a requirement to obtain a license, labeling and/or warning requirements, onsite farm sale of raw milk products directly to consumers, or a maximum number of animals producing milk. For example, in Iowa the sale of raw milk is permitted on farms if no more than ten animals are actively producing milk. Iowa Code Ann. § 195.1.
Pennsylvania Regulation of Raw Milk
Specifically, in the state of Pennsylvania, the sale of raw milk for human consumption is permitted only if the seller obtains a permit from the Department of Agriculture. 7 Pa. Cons. Stat. § 59a.402. Under this law, “a person may not sell raw milk for human consumption without having a current raw milk permit issued by the Department.” Further, sale is contingent on compliance with “testing and documentation requirements.” Finally, to sell cheese products made from raw milk a raw milk producer must obtain another permit from the department, and the cheese must be a standardized cheese identified in 21 C.F.R. Part 133, Subpart B.
Amos Miller’s Organic Farm
Amos Miller is a Pennsylvania farmer who owns and operates Miller’s Organic Farm. The farm’s website claims they are a “private membership association” that ships “traditional Amish farm foods . . . directly to your doorstep.” Under this model, Miller’s farm sells products raised on his farm and other local Amish farms exclusively to members of the private association. Miller’s farm does not sell products to the public, but a lifetime membership to the private association can be obtained by paying a one-time fee of $35. In January 2024, Miller gained public attention when his farm was raided by the Department. However, this is not the first time that Miller has been in legal troubles related to food safety.
Federal Food Safety Issues
In 2016, a Listeria outbreak that killed one person in Florida and sickened another in California was traced by the Food and Drug Administration (“FDA”) and Center for Disease Control (“CDC”) to raw milk from Miller’s farm. Following the 2016 Listeria outbreak, Miller got into the first of two legal battles with the Food Safety and Inspection Service (“FSIS”) agency of the United States Department of Agriculture (USDA) over refusing a subpoena to allow an FSIS investigation of his farm’s meat and poultry operations. FSIS sued to enforce the subpoena, and after months in court, FSIS was granted access to Miller’s farms in November 2016. After its investigation, FSIS determined that Miller’s farm was not in compliance with federal regulations. United States v. Miller’s Organic Farm and Amos Miller, EDPA No. 16-cv-273.1.
After repeated violations of FSIS regulations, Miller’s farm was sued in 2019 by the Department of Justice on behalf of FSIS to permanently enjoin Miller from selling non-federally inspected meat and poultry products to consumers located throughout the United States. United States v. Miller’s Organic Farm, 5:19-cv-01435-EGS. Under the Federal Meat Inspection Act and the Poultry Products Inspection Act, a meat or poultry product may not be sold in interstate commerce without first being inspected by FSIS. After three years in court, this case concluded in 2023 when the Court approved the “Third Consent Decree” which requires, among other things, that Miller comply with state regulations.
Pennsylvania Department of Agriculture raid and lawsuit
Following the 2016 Listeria outbreak, Miller was not only in legal trouble with the federal government, but with the State of Pennsylvania as well. When FSIS first sought access to Miller’s farm in 2016 to investigate its meat and poultry operations, a representative from the Pennsylvania Department of Agriculture’s Bureau of Food Safety and Laboratory Services (“BFS”) was also present to seek access for inspections and was also denied. While not a party in the 2019 injunction action, BFS engaged in conversations with Miller as the lawsuit progressed about compliance to Pennsylvania law. However, BFS alleges that Miller continued non-compliant behaviors, such as selling raw milk without a permit and selling meat and poultry products to out-of-state customers without FSIS inspection.
On January 4, 2024, the Pennsylvania Department of Agriculture executed an administrative search warrant at Miller’s Farm after receiving notice of cases of Shinga toxin producing e. Coli in children who had consumed products from Miller’s farm. The affected children reside in New York and Michigan. While it is against federal law to sell raw milk in interstate commerce, Pennsylvania allows the sale of raw milk within its borders if the raw milk producer obtains a permit from the Department. After receiving reports about the cases of food-borne illness in New York and Michigan linked to Miller’s farm, the Department discovered that, in addition to selling to consumers outside state boundaries, Miller had also been producing and selling raw milk in Pennsylvania without a permit.
On January 23, 2024, the Attorney General brought an action against Miller on behalf of the Department seeking to prevent his raw milk sales until he obtained a permit. Judge Sponaugle granted the preliminary injunction prohibiting Miller and his businesses from “manufacturing, processing, marketing, selling, and/or distributing raw milk and/or products made with or from raw milk” until the hearing on the continuance of the injunction occurred. Miller opposed the injunction claiming that his business was not “a retail food facility, food establishment, or a permit required milk producer . . . within the meaning of the permitting requirements.” When asked by Judge Sponaugle at the February 29, 2024 injunction hearing why he refuses to obtain a permit, Miller states that under Pennsylvania law a permitholder is only allowed to produce raw milk and hard cheese made from raw milk. Miller’s farm produces raw milk products like yogurt, butter, and kefir, and does not wish to stop his operations – which he sees as producing food that is both religiously important and medically needed by his customers.
Following the injunction hearing, Judge Sponaugle ordered Miller to stop selling and marketing raw milk and products made from raw milk, and enjoined him from producing raw milk in any capacity except for his immediate family’s use. Judge Sponaugle determined that Miller should not be allowed to “ignore this Commonwealth’s regulations” by selling raw milk without a permit because doing so would “usurp the authority and responsibility of the Pennsylvania General Assembly.” Judge Sponaugle later amended the order to clarify that Miller was only enjoined from marketing and selling raw milk and raw milk products within Pennsylvania. Though federal law prohibits the sale of raw milk in interstate commerce, Judge Sponaugle declined to take up an issue that was under federal jurisdiction, but suggested FDA’s involvement was appropriate if it chose to engage in the matter. The FDA is not currently involved in the litigation, but the case remains ongoing.
Conclusion
While the public debates the nutritional value versus health risks of raw milk, the FDA remains clear in its stance that raw milk is not permitted to be sold in interstate commerce. However, states differ on their raw milk stance with many prohibiting its sale or permitting it for operations that meet outlined requirements. Pennsylvania allows the sale of raw milk from producers with a permit; thus, Amos Miller’s operation is currently enjoined from selling raw milk in Pennsylvania without a permit from the Department of Agriculture. There has been no federal action regarding Miller’s interstate raw milk sales.
For a state-by-state guide on raw milk laws, click here to view ProCon.org’s “State-by-State Raw Milk Laws” page.
For more NALC resources on Food Safety, click here.