Raw Milk Producers Say State Regulations Are Prohibitive

Feb 23, 2015

A group of agricultural entrepreneurs say they’ve found a product that could make their small farms profitable. But producers of raw milk say state regulations are hampering their ability to sell it.

Two years ago, Nate Rogers and his wife left their careers at IBM for a life of grain and dairy. Their 135-acre farmstead in Berlin sits on the rich soil of the Dog River valley. A milking barn houses a small herd of light brown Jerseys that just welcomed a new calf.

“This is little Clover,” Rogers says, petting the 3-week-old calf. “It’s a tough time of year to be born, but she did really well.”

The Rogers Farmstead is perhaps best known for its wheat flour and rolled oats, both of which appear in loaves produced by local bread companies – Red Hen Baking Co. and Elmore Mountain Bread. But the business plan also relies on sales of raw milk.

That milk – sold mostly by honor system, in sealed half-gallon jugs, from a kitchen refrigerator in a retail shop inside the barn – is why Rogers says he opted for the Jerseys.

“They graze really well, excellent quality milk, a lot of butter fat … And they’re a little more manageable, size-wise,” Rogers says. “They got some real good personalities too.”

But Rogers says the raw milk business got a little harder last October, when the state Agency of Agriculture overhauled the testing protocols that govern sales of this niche product.

"Unsupportive would be an understatement. I think that they [the Agency of Agriculture] just flat out don't want to see the small farms competing in the marketplace." - Nate Rogers, Rogers Farmstead of Berlin

If just one of Rogers’ milk samples exceeds stringent requirements for bacterial counts, he has to personally call every customer he sells to, and disclose the results. A second high test, and he’s out of business altogether.

Rogers says it’s just the latest volley from a state regulatory agency that, from his view, seems to have little interest in his success.

“They have been, unsupportive would be an understatement,” Rogers says. “I think that they just flat out don’t want to see the small farms competing in the marketplace.”

Only a handful of raw milk farmers are taking advantage of a 2009 law that authorized sales of larger quantities of this controversial product.

Since it isn’t pasteurized, raw milk raises food-safety concerns unassociated with conventional dairy. Rogers and other farmers say they’re happy to abide by the testing standards in the raw milk statute. But they say the tests were designed to monitor quality, so farmers could adjust their operations as necessary – not to put otherwise responsible farmers out of business.

Andrea Stander is the head of Rural Vermont, an organization that advocates on behalf of small farms.

“Why is the Agency of Agriculture devoting so much of its limited resources to trying to put the screws down on this limited group of farmers that are trying to have viable business?” Stander asked lawmakers recently.

Diane Bothfeld, deputy secretary of the Agency of Agriculture, says raw milk demands rigorous food safety protections, given the potential for outbreak of listeria, salmonella, giardia, or other nasty germs.

"There is no pasteurization in between. There's no one else in between the farmers and the consumer. And the quality of that milk is paramount." - Diane Bothfeld, Agency of Agriculture Deputy Secretary

Bothfeld says the state also needs to protect the state’s other dairy producers from the black eye that a raw milk outbreak would inflict on the rest of the industry.

Until last October, raw milk producers had multiple chances to lower their bacteria counts before having to notify customers, or to cease sales. But Bothfeld says the agency decided the practice wasn’t sufficient.

“There is no pasteurization in between,” Bothfeld says. “There’s no one else in between the farmers and the consumer. And the quality of that milk is paramount.”

Bothfeld says consumers want to know what’s in their food, and she says this new agency policy does that.

"They're just exactly what people should be pointing to when they're talking about the burdensome, cumbersome over-regulation of farmers and small businesses." - Frank Huard, Huard Family Farm in Craftsbury

“So the informed consent aspect, if the counts are elevated, making sure that people understand that, because we have found and heard, loud and clear in many of the debate that consumers want to know what’s in their food,” Bothfeld says.

Also, she says, the protocols have proven effective.

“We’ve had a couple producers that have had one elevated count, but not a second one,” she says. “So in the agency’s perception of this, it’s working.”

Farmers who sell raw milk say the only thing the new policy has been effective at is ruining raw milk businesses. They say at least one farm that had previously sold milk without incident has since quit the business.

According to unscientific numbers compiled annually by Rural Vermont, sales of raw milk grossed a little more than $250,000 in 2014, barely a blip on the screen in a dairy industry credited with generating $2.2 billion in economic activity annually in Vermont.

But raw milk producers say their market is almost wholly untapped, due in large part to laws and agency regulations that, for instance, prohibit customers from selling raw milk to most customers at farmers markets, or participating in CSAs.

According to Bothfeld, the agency revisited its testing standards after hearing concerns from “one or two” legislators who said they worried that the old protocols might not flag problem milk early enough in the distribution process.

The tests, performed at FDA-approved labs in either Burlington or Bethel, measures somatic cell count, coliform, and total bacteria – high levels of which can indicate dangerous germs that can cause sickness in healthy people, and, death in infants or elderly or immune-compromised adults.

"I think there can be more flexibility with some of the testing requirements while still ensuring safety." -Barnard Rep. Teo Zagar

And people like Frank Huard, who milks 10 goats at the Huard Family Farm in Craftsbury, says the new testing protocols came as a punch in the gut.

The protocols apply to “tier two” farmers, who are allowed to sell up to 280 gallons of milk weekly. Tier two farmers – there are seven now, according to the agency, down from a high of eight – have sold their milk without incident since the raw milk law went into effect five years ago. Huard says the updated testing rules are a draconian solution in search of a nonexistent problem.

“I mean they’re just exactly what people should be pointing to when they’re talking about the burdensome, cumbersome over-regulation of farmers and small businesses.” Huard says. “I mean, I either got to go out of business or go underground. We’re trying to do the right thing.”

Raw milk farmers point to places like New Hampshire and Maine, where more permissive raw milk statutes have bred a thriving market. In those states, and nine others, farmers can sell raw milk in retail grocery stores, not just farmers markets.

And raw milk producers say the potential revenue stream is could mean financial viability for the small, diversified agriculture operations that the Agency of Agriculture says it’s so interested in fostering.

Raw milk farmers have found at least a few legislators to take up their cause.

“There are some obstacles to these raw milk producers really growing their markets and finding new customers and making a viable living selling their milk,” says Barnard Rep. Teo Zagar. “I think there can be more flexibility with some of the testing requirements while still ensuring safety.”

Zagar will soon introduce legislation that would ease testing protocols, and also allow farmers to retail their raw milk at farmers markets.

“This is really an economic development bill for small farmers, to expand their markets and get their products to more people, while continuing to ensure that the food is safe,” Zagar says.