Raw Milk Update: Texas Jury Rules Raw Milk Sale Illegal

Written by M. Sean High – Staff Attorney

On December 16, 2015, the Farm-to-Consumer Legal Defense Fund (FTCLDF) reported that its client, Texas dairy farmer Eldon Hooley, had lost his jury trial regarding the sale of raw milk. 

According to FTCLDF, raw milk produced on Hooley’s dairy farm (located within the city of Grandview, Texas), transported by a van owned by Hooley, was seized by law enforcement officials at an off-farm customer drop-site located within the Fort Worth, Texas city limits.  At the time of the seizure, Hooley’s state license to sell raw milk was under suspension after his raw milk had previously tested positive for the bacteria Yersinia.  

Though Hooley’s dairy farm was not located within the Fort Worth city limits, prosecutors argued that under the Fort Worth city code regulating food establishments: 1) Hooley’s van met the classification of food establishment; and 2) because Hooley’s raw milk license was under suspension, the raw milk sales were illegal.  According to FTCLDF, the jury agreed with the city prosecutors and determined that Hooley should pay $1,500 in fines plus $67 for court costs.  

Similarly, in Pennsylvania, state law makes it illegal to sell raw milk for human consumption without a permit issued by the Pennsylvania Department of Agriculture (PDA).  Accordingly, raw milk sales must remain “in compliance with the testing and documentation requirements of the Milk Sanitation Law, and any other applicable statute or regulation.” Furthermore, any raw milk used in the manufacturing of aged cheese can only be sold if PDA specifically issues a permit for the sale of aged cheese produced from raw milk.  Importantly, PDA is empowered to file summary criminal prosecutions for any raw milk permitting violation.

In Pennsylvania, if a dairy farmer continues to sell raw milk after their raw milk permit has been revoked or suspended, PDA may “[a]pprise the Department of Health and any local health department having jurisdiction of the situation, and recommend these entities take lawful action to ensure that sales of raw milk cease.”  Additionally, PDA may ask the Pennsylvania Office of Attorney General to: 1) seek an injunction to prevent raw milk sales; and 2) seek fines and/or imprisonment if an injunction is violated.  Relevant to Hooley’s transportation of raw milk via his van, Pennsylvania state law defines raw milk sales broadly to include “the selling, exchanging, delivering or having in possession, care, control or custody with intent to sell, exchange, or deliver or to offer or to expose for sale.” 

On a related side-note, under Pennsylvania’s raw milk law, “[w]henever, in the opinion of the [PDA] Secretary, a given supply of raw milk or raw milk products is considered unsafe or a menace to public health, the Secretary may seize, condemn, denature or destroy the milk or milk products, without compensation to the owner of the milk or milk products.”