Hawaii Bill Would Legalize Limited Raw Milk Sales; Set Foundation to Nullify Federal Prohibition Scheme

by Mike Maharrey, Tenth Amendment Center, Jan 30, 2022

HONOLULU, Hawaii (Jan. 30, 2022) – A bill filed in the Hawaii House would legalize direct-to-consumer sales of raw milk. Passage of this bill would not only start to open Hawaii’s raw milk market; it would take a step toward nullifying a federal prohibition scheme in practice and effect.

Rep. Mark Nakashima introduced House Bill 2028 (HB2028) on Jan. 24. Under the proposed law, milk producers could legally sell raw milk and raw milk products directly to consumers subject to rules adopted by an oversight board. Sales would be limited to farms or facilities with no more than 2 milk-bearing cows, The law would also implement labeling standards for raw milk.

Under current law, Hawaii maintains a total ban on the sale of raw milk for human consumption. Last summer, the state also imposed a ban on raw milk as pet food. The Hawaii Department of Health called raw milk sold by pet stores “a public safety issue” because it could be mishandled and consumed by humans.

Passage of the bill would not only take the first step toward opening up the raw milk market in the state; it would also move forward efforts to nullify a federal raw milk prohibition scheme.

HB2028 is similar to another bill Nakashima introduced during the last session that will carry over to 2022.

Impact on Federal Prohibition

FDA officials insist that unpasteurized milk poses a health risk because of its susceptibility to contamination from cow manure, a source of E. coli.

“It is the FDA’s position that raw milk should never be consumed,” agency spokeswoman Tamara N. Ward said in November 2011.

The FDA’s position represents more than a matter of opinion. In 1987, the feds implemented 21 CFR 1240.61(a), providing that, “no person shall cause to be delivered into interstate commerce or shall sell, otherwise distribute, or hold for sale or other distribution after shipment in interstate commerce any milk or milk product in final package form for direct human consumption unless the product has been pasteurized.”

Not only do the feds ban the transportation of raw milk across state lines; they also claim the authority to ban unpasteurized milk within the borders of a state.

“It is within HHS’s authority…to institute an intrastate ban [on unpasteurized milk] as well,” FDA officials wrote in response to a Farm-to-Consumer Legal Defense Fund lawsuit against the agency over the interstate ban.

The FDA clearly wants complete prohibition of raw milk and some insiders say it’s only a matter of time before the feds try to institute an absolute ban. Armed raids by FDA agents on companies like Rawsome Foods back in 2011 and Amish farms over the last few years also indicate this scenario may not be too far off.

When states allow the sale of raw milk within their borders, it takes an important step toward nullifying this federal prohibition scheme.

As we’ve seen with marijuana and industrial hemp, an intrastate ban becomes ineffective when states ignore it and pass laws encouraging the prohibited activity anyway. The federal government lacks the enforcement power necessary to maintain its ban, and people will willingly take on the small risk of federal sanctions if they know the state will not interfere. This increases when the state actively encourages the market and nullifies federal prohibition in effect.

We’ve seen this demonstrated dramatically in states that have legalized industrial hemp. When they authorized production, farmers began growing industrial hemp, even in the face of a federal ban. Despite facing the possibility of federal prosecution, some growers were still willing to step into the void and begin cultivating the plant once the state removed its barriers.

In the same way, removing state barriers to raw milk consumption, sale and production would undoubtedly spur the creation of new markets for unpasteurized dairy products, no matter what the feds claim the power to do.

It could ultimately nullify the interstate ban as well. If all 50 states allow raw milk, markets within the states could easily grow to the point that local sales would render the federal ban on interstate commerce pointless. And history indicates the feds do not have the resources to stop people from transporting raw milk across state lines – especially if multiple states start legalizing it. Growing markets will quickly overwhelm any federal enforcement attempts. 

HB2028: Text, Status