Free Speech

Right to Advertise Raw Milk

The Kansas Department of Agriculture has agreed that a Kansas statute sharply limiting such advertising violates the First Amendment.

|The Volokh Conspiracy |

Kansas law allows "the sale of milk or milk products on the farm by the producer from the production of the dairy herd to the final consumer"—including raw milk—but only

so long as the person making such sales does not promote the sale of milk or milk products to the public in any manner other than by the erection of a sign upon the premises of the dairy farm.

The Kansas Justice Institute, representing Mark and Coraleen Bunner, sued, claiming this advertising restriction violates the First Amendment; and the Kansas Department of Agriculture has conceded, agreeing to a consent judgment:

The Raw Milk Advertising Ban is unconstitutional. Specifically, that the
language in KSA § 65-771(cc) "so long as the person making such sales
does not promote the sale of milk or milk products to the public in any
manner other than by the erection of a sign upon the premises of the dairy
farm." is unconstitutional in that it violates the First and Fourteenth
Amendments to the United States Constitution and Kansas Constitution
Bill of Rights § 11.

Indeed.

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  1. However, “the district court left in place state law restricting distribution of raw, unpasteurized milk in Kansas to a producer’s farm.”

    So they can advertise outside of their farm but can’t sell outside of their farm.

    1. Might be a fight for another day. I have some sugar free fudge pops that brag, “gluten free!”

      There’s technical truths that are misleading as to validity. How close does it encroach on a lie?

      Anyway I can see, maybe, restrictions on phony health claims of raw milk (assuming that’s the market and not some strange recipes) but not on advertising or sales anywhere.

      The latter sounds like the usual rent seeking by competitors.

  2. Indeed not.

    Anyone who sells unpasteurized milk is a public health menace and ought to be ought of farming altogether. 1A does not protect fraud, “raw” milk is dangerous so 1A ought not to protect its sellers either.

    The only thing wrong with the Kansas law is that it permits on site signs.

    1. I, for one, welcome our new nanny state overlords.

    2. Pssshh. I drank large glasses of raw milk with every meal my whole life until age 18. Pasteurization is a great thing, particularly for preservative purposes, but it sure doesn’t taste as good as unpasteurized milk.

      1. The plural of anecdote is not data.

        “particularly for preservative purposes”

        Drinking it on the farm the day it comes from the cow may be ok. Selling it to people who will often drink it later is not.

        1. Yes it has a very short shelf life. I don’t have any strong feelings about sales being legal as some people do, but in theory if you are going to take the view that people should know what they are doing and bear the risks of their choices then I can at least understand the viewpoint of seeing this as nanny state overreach.

        2. All scientific data is ultimately nothing more than a large pile of anecdotes run through a mathematical blender.

          1. Take a stats class. Any stats class. Proper sampling can work miracles.

    3. Sarcasm? Or are you serious?

      In case you are serious, please provide your specific evidence that ““raw” milk is dangerous” and in particular, that it is enough more dangerous than other routine household/food risks to justify the restrictions you apparently favor. Several millennia of experience suggest that unpasteurized milk is not significantly more dangerous than eggs, pork or dozens of other common agricultural products.

    4. Anyone who sells unpasteurized milk is a public health menace and ought to be ought of farming altogether. 1A does not protect fraud, “raw” milk is dangerous so 1A ought not to protect its sellers either.

      Ah yes – the “small” government “conservative” – no regulations is fine until it conflicts with your opinion on some random thing.

      The very definition of a hypocrite.

  3. So does that also apply to other products that are forbidden or restricted to sell?

    1. 1. Under the Supreme Court’s commercial advertising precedents, if it’s illegal to actually sell a product, it’s illegal to advertise it (though you’d be a fool to engage in such advertising, since it will draw the attention of law enforcement to your underlying illegal sale).

      2. If it’s legal to sell it, then advertising it is generally constitutionally protected, though subject to somewhat more restrictions than can be placed on noncommercial speech. This general protection applies even to products that the government sees as potentially harmful though tolerated, such as tobacco (see the Lorillard case) and alcohol (see 44 Liquormart). For a rare situation where a court upheld a broad restriction on advertising a legal product — brothel prostitution in Nevada — see Coyote Publishing, Inc. v. Miller (9th Cir. 2010), https://scholar.google.com/scholar_case?case=1395013459669000325 .

      1. But here it was legal to sell only on the farm.”. Everywhere it was illegal to advertise, it was illegal to sell. So “if it’s legal to sell, it’s legal to advertise” was fully complied with. If A then B is equivalent to if not B then not A.

        1. No, that’s not right — it’s illegal to sell alcohol on the side of the road, but it doesn’t mean that the government can ban alcohol ads on the side of the road. The rule is that if it’s legal to sell (even only in particular places, whether farms, liquor licensees, pharmacies, etc.), then advertising in various places, not just at point of sale, is constitutionally protected.

  4. I believe a number of states have this restriction, or at least the “sale on only on premises” restriction, in particular states with large traditionalist Anabaptist communities. It’ll be interesting to see what happens there.

  5. I think this is a more difficult case than present. It’s clear that a state can’t prohibit advertising a product where the product is legal, but can prohibit it where it isn’t. While the limitation on form of sign might be unconstitutional, the state here limited the places where raw milk could be advertised to places where it could be sold. Why does the First Amendment require any more?

  6. Another anecdote. I was reared in Santa Clara, of high tech cutting edge Sillycon Valley, the last of a farming family. I don’t recall just when the last raw milk delivering dairy was run out of business but until then four gallons of raw milk were delivered twice a week and eagerly consumed.

    Raw milk may have become ‘dangerous’ but then so has hyper-hygiene.

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