A recent Wisconsin farmer’s acquittal for selling “raw” milk may have Indiana farmers wondering to what extent such sales are legal in Indiana.
Raw milk is “unpasteurized” milk. Some believe that raw milk has a higher nutritional content, is tolerated better by people with certain health conditions and has other health benefits. The State of Indiana requires pasteurization, a process by which milk is heated to slow microbial growth, on all milk that is delivered for “human consumption” in an effort to prevent illness. Specifically, Indiana Code § 15-18-1-21 states that:
A person may not offer, display for sale, sell, deliver, or have possession of with intent to sell or deliver milk or milk products for human consumption unless every particle of the final mixture of the milk or milk products used in processing or manufacture has been thoroughly pasteurized by equipment approved by the [Board of Animal Health].
There are exceptions for certain types of cheese, which may be made from raw milk and sold directly to the public. But sales of raw, unpasteurized milk from a farm directly to a consumer are not allowed in Indiana. Moreover, a dairy farmer cannot escape the raw milk sales prohibition by selling the milk across the border in a neighboring state. Federal law mandates pasteurization for any milk sold in “interstate commerce”:
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 or is made from dairy ingredients (milk or milk products) that have all been pasteurized, except where alternative procedures to pasteurization are provided for by regulation, such as in part 133 of this chapter for curing of certain cheese varieties.
21 C.F.R. § 1240.61
But all of this hasn’t stopped a number of farmers from trying to circumvent the law. I have seen raw milk offered for sale as “pet” food. I’ve heard of raw milk sales at farmer’s markets, where one is unlikely to see a milk inspector. And I have heard of cow-sharing arrangements, where individuals purchase a percentage of a cow, thus entitling the person to a percentage of the (raw) milk. I won’t speculate on the legality of these attempts to avoid state and federal pasteurization requirements, but I would advise anyone selling raw milk to make sure they maintain adequate liability insurance.
Todd Janzen grew up on a Kansas farm and now practices law with Plews Shadley Racher & Braun LLP, which has offices in Indianapolis and South Bend. He also serves as General Counsel to the Indiana Dairy Producers and writes regularly about agricultural law topics on his blog: JanzenAgLaw.com. This article is provided for informational purposes only. Readers should consult legal counsel for advice applicable to specific circumstances.
Submitted by: Todd J. Janzen, Plews Shadley Racher & Braun LLP