On May 1, Pennsylvania state troopers arrived at the home of Mennonite farmer Mark Nolt, seizing a reported $20,000 to 25,000 worth of farm equipment and placing Nolt under arrest. His crime? The illegal sale of unpasteurized milk and other dairy products. And Nolt isn't alone. In February, federal investigators subpoenaed two employees of Mark McAfee's Organic Pastures Dairy in California. Though the subpoenas do not indicate the purpose of the investigation, McAfee told me the feds were seeking evidence that his dairy was selling unpasteurized milk for human consumption across state lines.
These are just the latest skirmishes in the growing conflict over the right to sell unpasteurized, or "raw" milk. On one side of the fight is an odd coalition of whole foodists, dairy farmers, and libertarians who want the government to butt out of their milk-drinking decisions. On the other side are public health officials and assorted busybodies determined to tighten regulations.
Fittingly, the debate has come to a head in California, a state equally known for its organic foods and its nanny state meddling. Late last year, the legislature quietly enacted strict new bacteria limits on raw milk, holding the product to the same standard of sterility as its pasteurized counterpart. Proponents contend the rule is necessary to protect consumers from dangerous diseases. Opponents, including McAfee and state Senator Dean Florez, say the standard is unfeasible and will put dairymen out of business. They've secured a temporary restraining order against the law, but losing in court could bring about what Florez calls "the end of raw milk in California."
While the fight to produce and consume unpasteurized milk might seem like a step back in time, raw milk advocates have good reason to lament the state of the modern dairy. Today's agricultural processes sacrifice flavor for safety. In the 2004 edition of his classic book, On Food and Cooking, food science writer Harold McGee explains how milk used to change with the seasons. When it wasn't preserved in cheese, butter, or other products, it was enjoyed fresh on the farm and tasted of the pasture. The growth of cities in the 18th and 19th centuries changed this. Without access to grass, cows were often fed on less nutritious fare, like the spent grains from beer brewing. The resulting milk was less flavorful and frequently unsafe. Expanding railroads and the invention of the refrigerated rail car brought fresher milk to the cities, but these required producers to pool their output, increasing the risk of contamination. Milk-borne illness quickly became a major cause of infant mortality.
Thus pasteurization came as a tremendous boon. By heating milk below the boiling point, producers killed off potentially harmful bacteria and increased their product's shelf life. As pasteurization became the norm, both the federal government and many states prohibited the sale of unpasteurized milk. Though these regulations made milk safer, today's burgeoning growth in natural foods requires a looser regulatory approach.
In short, safer milk resulted in the loss of seasonality and taste. Cooking milk introduces new flavors, some of them unpleasant. And since pasteurization kills bacteria indiscriminately, many raw milk devotees argue that the process robs them of probiotics, bacteria that they say build their immune systems and aid digestion. As McAfee put it to me, "kids are germ magnets." Exposing them to raw milk, he argues, is good for them. Similarly, the testimonials section on the website of the Campaign for Real Milk, a project of the Weston A. Price Foundation that aims to overturn legal barriers to unpasteurized milk, is full of quotes from people writing that the product has cured them of everything from indigestion to autism. While some of these claims are obviously far-fetched, it's clear that many raw milk drinkers believe they benefit from introducing a thriving population of bacteria into their bodies.
And therein lies the problem. If a batch of unpasteurized milk happens to be tainted with E. coli or Listeria, feeding it to a "germ magnet" will lead to potentially serious illness. In his testimony at Florez' senate hearing, University of California-Davis professor Michael Payne testified that although raw milk accounts for just a tiny percentage of milk consumption in the U.S., it is responsible for twice the number of disease outbreaks as pasteurized milk. John Sheehan, director of the FDA's Division of Dairy and Egg Safety, takes things further and compares drinking raw milk to "playing Russian roulette with your health."
Alarmist statements like Sheehan's make it hard to believe the government's more reasonable warnings, and the FDA's ban is arguably part of what gives raw milk its allure. Payne does not advocate banning the sale of raw milk, but he does suggest that tighter regulations could help ensure safety. At greatest issue is California's new requirement that raw milk contain no more than 10 coliform bacteria per milliliter, the same standard that pasteurized milk must meet. The state argues that even though these bacteria are not inherently harmful, their presence is suggestive of fecal contamination; McAfee contends that such a low measure will be impossible to satisfy in California. Although Maine and Washington have instituted the 10 coliform limit without killing their raw milk industries, he is right to worry. Nearly a quarter of samples tested in Washington and Maine didn't pass the test, and even California's own Department of Food and Agriculture reports that only 25% of bulk milk samples collected in the state pass the test before being pasteurized.
Florez is considering legislation that would substantially raise the coliform limit for raw milk and increase testing for pathogens, along with other safety improvements. Given that so many raw milk consumers demand live bacteria in their milk, it's a reasonable compromise, and one that McAfee says his dairy could live with.
And yet, while certain regulations make sense for broad retail sales, there's something heroic in the civil disobedience of men like Mark Nolt. After all, if a consenting adult wants to buy milk taken straight from the cow, is it any business of the law to interfere?
When I recently visited dairywoman Kitty Hockman-Nicholas at Hedgebrook Farms in Winchester, Virginia, I saw nothing dangerous or diabolical. Kitty showed me around the farm, introduced her cows by name, and demonstrated her milking process. It would have been illegal for Kitty to sell me raw milk—she provides it for people who buy into "cow shares" and thus technically own the cows from which they get their dairy—but she kindly sent me home with some as a gift.
My trip to the farm provided delightful insight into the origins of one of our most essential foods. I didn't enjoy any miraculous health effects after drinking it, but the taste was smooth and creamy, with none of the processed aftertaste I now can't help noticing in store-bought milk. As I sipped my unpasteurized beverage, I reflected on the absurdity of the situation: If Kitty were to offer the same experience to others for a profit, the government could forcibly put her out of business.
Though Mark Nolt, Mark McAfee, and their loyal customers' devotion to raw milk may seem eccentric to some, the consumption of raw fish in sushi or uncooked meat in beef carpaccio is equally strange to others. And with consumer freedom increasingly under attack from busybodies on the left and right, it's hard not to admire their rebelliousness and their resolution to drink milk in its freshest form. Though there is certainly a place for reasonable food safety laws, any regulation that leads to otherwise law-abiding farmers being shutdown or arrested has gone too far. With a growing movement of consumers demanding raw milk, the time has come for the government to get out of their way.
Jacob Grier is a writer at the Cato Institute.