Farm-to-Consumer Legal Defense Fund
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SDDA Proposes Rules to Create Defacto Ban on Raw Milk Sales in South Dakota

By Pete Kennedy

The South Dakota Department of Agriculture (SDDA) has issued proposed raw milk regulations.  A hearing on the proposed rules will be held November 17.  According to SDDA, “the effective rules will be to allow the sale of raw milk with oversight of the public health concern monitored by the South Dakota Department of Agriculture.”  The stated reason for the proposed rules is “to protect public health.”

Under state statute, the general prohibition on the sale of raw milk does “not apply to milk, cream, skim milk or goat milk occasionally secured or purchased for his personal use by any consumer at the place or farm where the milk is produced; neither does it “apply to any active farm producer of milk, selling and delivering his own production direct to consumers only.”   There is no requirement that a farm be a licensed Grade A dairy to be under these exceptions.  The only requirement for those selling under the exceptions is that any unpasteurized milk sold be “clearly labeled by the producer as ‘raw milk’”. 

The proposed rules, in effect, take away rights given by the legislature by imposing expensive requirements that those dairies wanting to sell raw milk would not be able to afford.  The proposed rules are typical barriers-to-entry regulations that will create a defacto ban on the sale of raw milk.  The proposed regulations would change the current statutory exception by requiring that the producer must have both a milk plant permit (which requires a bottling machine) and a milk producer’s license. 

Permits will not be issued unless standards in the proposed regulations are met.  These standards include a mechanical bottling machine (handcapping would be prohibited) and a separate facility for bottling; for Grade A licensed dairies a building separate from the milk parlor would be required for bottling.  One licensed Grade A dairy farmer currently selling raw milk estimated that if the proposed rules became law, he would have to spend a minimum of $76,000 to be in compliance after figuring the cost of a separate building for bottling, a storage tank for the bottling facility, pumps to move the milk from the parlor to the bottling facility, a mechanical bottling machine and the installation costs. 

Aside from equipment and construction requirements, there are other onerous provisions in the proposed rules.  Raw milk producers would have to test twice yearly for bovine tuberculosis (TB) and brucellosis; no other State requires testing more than once a year.  Raw milk shall be tested in the final container (i.e., bottle)  for coliform with the maximum permissible level being ten per millimeter (10/ml).  This standard has proven difficult for California raw milk licensed dairies to meet.  Those producers selling raw milk will be required to maintain customer lists that shall be provided to SDDA upon request.  Moreover, “[t]he list must be continually updated and include the data for at least 60 days.  This customer list shall include customer names, addresses, phone numbers and quantities of raw milk sold for human consumption.”

The November 17 hearing will be held at 9:30 a.m. Central time in room 412 of the Capitol Building,  500 East Capitol Avenue, Pierre, South Dakota 57501.  Those attending will be allowed to give testimony.  Those unable to attend can still send comments opposing the rules to the following address: 

Materials much reach SDDA by November 27, 2009 at 5:00 p.m. CDT to be considered.

The purpose of the proposed rule is not to ensure that safe raw milk is sold; it is an attempt to ensure that no raw milk is sold legally.  The proposed rules need to be stopped.

Last edited: Nov 08, 2009

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