Raw milk – “South Dakota wins!”

Since 2009, when the South Dakota Department of Agriculture first proposed rules regulating the sale of raw milk for human consumption, the tension between raw milk producers and consumers, the Department, and the dairy industry has been at best, tepid, and at worst, an all-out fight.

(To hear more about the history and where we are now, listen to our Dakota Rural Voices podcast episode – and be sure to subscribe so you don’t miss one!)

The regulatory issue came to a head in last year’s legislative session. In February 2014, the Senate Health and Human Services Committee, rather than pass the raw milk bill then under consideration, suggested the formation of a Raw Milk Work Group in order to research raw milk statutory and regulatory issues and decide on a path forward.

The group was formed after the legislative session. Members of the group included Department of Agriculture Secretary Lucas Lentsch, Department employees, licensed raw milk farmers, dairy industry representatives, SDSU subject matter experts, and raw milk producers and consumers – and everyone, in the beginning, was wary.

But after a year of sitting around a table, we have indeed come up with a path forward. Senate Bill 45 is the result of collaboration and compromise on the part of all participants. The improved statute will help preserve existing raw milk dairies in our state, as well as provide a clear regulatory framework for new raw milk dairy farmers to enter into the business.

Key Provisions in Senate Bill 45:

• Raw milk, and now cream, will continue to be legal for sale direct to the consumer in South Dakota.
• SB 45 creates a clear definition and separate set of rules for the sale of raw milk for human consumption, establishing raw milk as a clearly legal product, rather than an exemption.
• A license and permit are still required to produce and market raw milk for human consumption, and dairy farmers will still have their facilities inspected annually by the Department of Agriculture.
• A licensed and permitted raw milk producer must maintain sales records for notification in case of an issue, including contact information for their customers. These customer lists will not be subject to review by the Department of Agriculture unless there is an issue that is not addressed by the farmer.
• Sale at farmers markets or retail locations remain illegal; however, producers are able to deliver milk to existing customers or promote their products at farmers markets. In return, producers will not need to put a warning label on their bottles.

Rules for facilities, testing, sampling procedures, cooling and storage, etc. have been laid out and will be finalized by the Raw Milk Working Group once SB 45 is approved and signed into law.

We support the bill, and look forward to seeing it pass.

The process worked very well with Secretary Lentsch’s leadership. He fostered an environment that encouraged productive conversations. This was no small undertaking, considering the widely varying backgrounds of participants. The new statute will create a business environment that will allow South Dakota’s raw milk farmers to stay in business, a win-win for farmers and consumers. Gena Parkurst, raw milk consumer

As a producer of raw milk, I am grateful for the process and product of the Raw Milk Work Group, established by Sec. Lentsch and so ably participated in by all parties. To me, it was proof that government of and by the people works and is best for all. I believe SB45 establishes excellent standards for raw milk, both for producers to work within and to guarantee a safe and high quality product for consumers. South Dakota wins! Tim Eisenbeis, Happy Grazing Dairy Raw Milk Producer

Dakota Rural Voices – Podcast Episode 3, Raw Milk!

Our third podcast episode is up, and it is all about raw milk – one of the greatest foods of all time, and also one of the most controversial. Unfortunately, South Dakota is not exempt from that controversy, but DRA member and raw milk advocate sets the record straight. You can stream the podcast online, right here on this blog, just click to play or download over on the right-hand side. You can also download our podcast in iTunes, just go to the iTunes store, search “Dakota Rural Voices,” and subscribe today – never miss an episode!

Or, just click the link here, and download it right to your computer.

Have a great week – see you in Pierre!

Petition for Delay on Raw Milk Rules

ACTION ALERT

Petition the Department of Agriculture today for a delay of implementation

 
Yesterday, the South Dakota Legislative Rules Review Committee passed the South Dakota Department of Agriculture’s raw milk rules, stating the Department’s process was “procedurally complete,” despite a record number of testimonies against the rules.

 
Committee Chairman Rep. Timothy Johns, prefaced the vote with a statement about how people in South Dakota want raw milk and clearly do not want these rules. He went onto say, however, that the Committee’s job is not to approve the content or purpose of the rules, but merely to determine whether or not proper procedures had been followed in the rulemaking process.

 
Senator Phil Jensen, R – Rapid City, testified at the hearing that he would petition for a delay of implementation if the rules passed. And we need you to do the same, so we can show the Department of Agriculture they don’t get to pass these rules just because they followed procedure!

 

WHAT YOU CAN DO:

Anyone can petition the Department for a delay of implementation of the rules. Please use the form letter below or draft your own, and make sure it arrives at the Department by November 27, 2013. Your letter can be emailed to agmail@state.sd.us or mailed via snail mail the traditional way.

 
So far, we haven’t been listened to by the Department, but in the upcoming legislative session, we’ll be talking to a different set of people, people who are elected by us, and they will listen.

 
Thank you for your support of food freedom in South Dakota!

 

DELAY LETTER

November 13, 2013

Lucas Lentsch
Secretary of Agriculture
South Dakota Department of Agriculture
523 E. Capitol Ave
Pierre, SD 57501

Dear Secretary Lentsch:

I am writing to request a delay in the effective date of the proposed raw milk rules, Article 12:81, under SDCL 1-26-8.2. I am requesting a 90-day delay.

There will be legislation proposed during the 2014 Legislative Session which, upon their passage, will invariably affect these rules and the producers subject to them. In order to prevent unnecessary confusion, it would be beneficial to delay the effective date of these rules until after it is clear what will happen during the session.

I recognize even a 90-day delay will not prevent these rules from coming into effect before the legislative session ends; however, it would be prudent to give as much time as allowed under the law to avoid constantly changing rules for raw milk producers.

 

Sincerely,

Legislative Committee Passes Onerous Raw Milk Rules

Legislators Promise to Petition for a Delay of Implementation

Yesterday, the South Dakota Legislative Rules Review Committee passed the South Dakota Department of Agriculture’s raw milk rules, stating the Department’s process was “procedurally complete,” despite a record number of testimony against the rules.

Committee Chairman Rep. Timothy Johns, R – Lead, prefaced the vote with a statement about how people in South Dakota want raw milk and clearly do not want these rules. He went onto say, however, that the Committee’s job is not to approve the content or purpose of the rules, but merely to determine whether or not proper procedures had been followed in the rulemaking process.

Chairman Rep. Johns said he received a foot high stack of emails opposing the rules.

Senator Phil Jensen, R – Rapid City, testified at the hearing that he would petition for a delay of implementation if the rules passed. The Senator was joined by Representative Scott Craig, R – Rapid City, who also testified against the rules, noting his wife is a cancer patient whose doctors have told her to drink raw milk.

Gena Parkhurst, local food freedom advocate and Dakota Rural Action member, said of the hearing, “As the legislators voted, I sensed hesitation on their part. It seemed to me that the legislators had heard the arguments of the opponents and felt that if the vote was about the rules themselves, they would’ve voted them down. The legislators were ham-strung since they are required to base their vote on whether or not a Department has followed proper rulemaking procedures. Raw milk advocates will seek a delay in these rules.”

Final Raw Milk Vote Nov 12

ACTION ALERT

Support food freedom in South Dakota and write and attend the final vote on the proposed raw milk rules on November 12

 

Despite receiving over 1,000 letters from opponents, South Dakota Secretary of Agriculture Lucas Lentsch changed only two items in the proposed raw milk rules. He sent them to the Legislative Rules Review Committee to be voted on….this is the last step before these rules could become effective!  The two changed items are:

1)  milk bacteria levels raised to 30,000 per/mil (from 20,000 and current rule is 500,000)

2)  36 word warning label reduced to these 12 words:  “WARNING: This product has not been pasteurized and may contain harmful bacteria.”

These changes are insignificant: the proposed rules still include many onerous regulations which will dramatically increase producer’s costs, and the rules contain many conflicts which will cause much confusion.  In addition, the Department’s authority to propose such extensive rules is in question.  The proposed rules far exceed SD statute 39-6-3 which merely requires a permit or license to sell raw milk, and a label stating “raw milk.”  The proposed warning label not only exceeds statutory authority, it is inaccurate in light of several new studies which concluded that raw milk is a LOW RISK FOOD.

WRITE to these six legislators ASAP and tell them to reject these rules on November 12th

They received over 300 letters opposing the rules last time and they voted NO – let’s send another 300!

Rep. Peggy Gibson
1010 Valley View Court
Huron, SD 57350
peggygibson@hotmail.com

Rep. Anne Hajek
PO Box 1779
Sioux Falls, SD 57101
annehajek@gmail.com

Rep. Timothy Johns
203 W. Main St.
Lead, SD 57754
tjohns@johnskosellaw.com

Sen. Jean Hunhoff
2511 Mulligan Drive
Yankton, SD 57078
USE E-MAIL FORM: http://legis.state.sd.us/sessions/2013/MemberDetail.aspx?Member=55

Sen. Mike Vehle
132 N. Harmon Drive
Mitchell, SD 57301
mvehle@mit.midco.net

Sen. Angie Buhl
PO Box 2212
Sioux Falls, SD 57101
angie.buhl@gmail.com

Please also ATTEND Legislative Meeting on November 12th at one of the five locations below:

Raw milk rules vote will occur around 9:00am MT/10:00am CT and you have the option to speak briefly before the vote. Find Agenda.

SD School of Mines & Technology
501 E. St. Joseph St., Room CB
Rapid City, South Dakota

State Capitol Building
500 E Capitol Ave., room 414
Pierre, South Dakota

Department of Human Services
2361 Dakota Ave. S.
Huron, South Dakota

Mitchell Technical Institute
1800 E. Spruce, Room TC 155
Mitchell, South Dakota

Department of Transportation
109 1306 W. 31st St.
Yankton, South Dakota

Third Raw Milk Rules Hearing Report

Dakota Rural Action Testifies at Third Raw Milk Rules Hearing

Black Hills Milk, LLC Switches to Herdshare Business Structure to Avoid Future Harassment

On October 9, 2013, the South Dakota Department of Agriculture held its third raw milk rules hearing since June, for the same set of rules proposed at the July 26, 2013 hearing. Over 600 written comments were submitted for the July 26th hearing record, yet the Department of Agriculture failed to incorporate any of those comments into their proposed rules. At the hearing, numerous opponents reiterated similar arguments made at the July 26th hearing and called the Department to task for not taking public opinion into consideration. Emotions ran high at the hearing, with opponents making the case that the Department of Agriculture has lost credibility with raw milk farmers and consumers.

In the fall of 2012, the Department of Agriculture mishandled a milk sample taken from Black Hills Milk, LLC’s dairy in Belle Fourche, resulting in an allegedly positive campylobacter test. Nobody had gotten sick, and subsequent tests were negative. The sample was tested approximately 12 days after being collected, after traveling to 2 different labs, inexplicably ending up in Florida. The five day shutdown of the dairy and negative media coverage has made other raw milk producers wary of the Departments intent with proposing increased testing. Larry Eisenbeis, with Happy Grazing Dairy in Marion, South Dakota, testified at the Wednesday hearing that the 2012 event scared the “daylights out of him” and other producers.

On a press call hosted by Dakota Rural Action after the hearing, Dawn Habeck, co-owner of Black Hills Milk, LLC, announced that her dairy is switching to a herdshare format to avoid further missteps and overreach by the Department of Agriculture. Herdshares are private arrangements between individuals regarding private property, and are not regulated in the state of South Dakota.

“I am concerned that if these rules are implemented, the Department of Agriculture will have even more tools to shut down raw milk dairy farmers,” says Dawn. “These small family businesses do not have the resources to hire attorneys and lobbyists to fend off hostile actions by the Department of Agriculture. The proposed rules will be an economic barrier for prospective farmers looking into starting a raw milk dairy. In addition, I am very concerned about the vagueness of the statutory authority for these rules. After the negative publicity last fall due to the campylobacter testing fiasco, sales dropped from 95-98 gallons per day to 45 and never recovered from a year ago, effectively not allowing us to cover our fixed costs. In a small operation, gallons per day are critical to cover fixed costs. It was the straw that broke the camel’s back. More regulations mean higher prices for customers due to an increase of fixed costs that have to be passed on to the customer so that the producer can stay in business.”

Dakota Rural Action members will continue to work to keep the proposed rules off the table until the legislative session, where they hope to work with the Department of Agriculture to fix the statute regarding raw milk to ensure a vibrant local raw milk industry.

Raw milk (over)regulations: third time’s the charm?

ACTION ALERT

After losing in front of the Legislative Rules Review Committee, the SD Department of Agriculture is proposing their rules again – and they’re the exact same rules. So, yet again, the Department needs comments on the proposed raw milk rules, which you can read (again) here. 

We believe in adequate regulations for direct-to-consumer raw milk sales, and these rules don’t fit the bill. We have also seen how confusing the law is regarding raw milk, and we believe the Department needs to wait to pass rules until after the law is clarified.

You and many other South Dakotans have already made their voices heard on this issue. Now we need to make sure the Department knows citizens are fed up. DRA member leaders will be submitting all the previous comments sent to the Department for this rules hearing, so they can’t ignore what South Dakotans have already said about these rules.

And, for the third (and hopefully final) time, we are asking you to send a comment to the SD Department of Agriculture at agmail@state.sd.us. They need to know they have to listen to their citizens – not just wear them down through hearing after hearing. A sample comment is below.

SAMPLE LETTER

Dear Secretary Lentsch,

I am disappointed to see the Department of Agriculture is proposing the same set of rules, rules which have already been shown to be burdensome and over regulatory of the raw milk industry in this state. Producers are limited to direct-to-consumer sales, and consumers are limited in where and when they can purchase raw milk.

Raw milk producers are already subject to licensing, permitting, and labeling laws. And citizens have already commented on these rules, outlining very specifically what the issues are.

Please take the comments already submitted to the Department into consideration, and do not pass these rules on to the legislature for review. I want to encourage you to work with producers and consumers to draft legislation to fix the current law, and then again work with producers and consumers to write rules which will benefit the raw milk industry, not harm it.

Thank you,
[your name]

Raw milk [rules] myths

The title for this blog post references a new brochure being promoted by the South Dakota Department of Agriculture (which you can read here: SDDA raw milk handout 08 16 2013), clearly discouraging raw milk consumption and with a section on “Raw milk myths.” Notably, it outlines the proposed testing standards rather than the real, current standards. So that, then, is raw milk rules myth #1: The proposed raw milk rules have passed.

Fact: The rules were rejected by the Legislative Rules Review Committee. They may be heard again September 17.

Raw milk rules myth #2: Many of the rules are already on the books, and are just being put into one section.

Fact: A half-truth is still a myth, and this is very much a half-truth. While a decent portion of the rules are on the books, many of those rules do not currently apply to raw milk. Significant portions of the proposed rules take current regulations that apply to Grade A milk or raw milk destined for pasteurization and simply copy-and-paste them to apply to raw milk for human consumption. You can see all the new additions in this document here: Rawmilkrules-newsections.

Raw milk rules myth #3: These rules are laying down basic safeguards for consumers.

Fact: Basic safeguards already exist. When the Legislature required licensing of raw milk producers in 2010, a set of standards was put in place for raw milk. These standards include labeling, quality tests for the milk, and standards for the barn where the cows are milked. Consumers are already protected under current regulations. The proposed regulations match some of the highest standards in the country – standards set for retail sales of raw milk, something not allowed by South Dakota state law.

Raw milk rules myth #4: These rules will have little effect on small producers.

Fact: Increased testing will inevitably increase costs not only for small producers, but for the Department of Agriculture as well. Moreover, the large label that will need to be created and affixed for all the producers will cost in both time and money.

We have proposed to Secretary Lucas Lentsch that the Department back off these rules and form a working group to really sit down around a table, take some time, and develop rules and perhaps even some new laws to propose that would work for everyone. We hope he takes that suggestion seriously – there is a great deal of work yet to be done.

The war isn’t over, but winning the battle feels good

The past two days have been some big ones here out West River. I suppose, when you’re involved in David-and-Goliath fights like we (constantly) are, pretty much every day is a big one. It can be rough, when you’re in the heat of the struggle, and Goliath seems so big he could win despite all your work and all your heart and all the logic and reasons he shouldn’t. But then something happens, and Goliath stumbles; and in that moment there is a glimpse of the better world that will come after. The days you get that glimpse – those are really, really big days.

Monday night the Rapid City Common Council passed a resolution 9-1 expressing their “grave concern” about the proposed in situ uranium mine down in the southern Black Hills (you can see an earlier version here; the only change is that rather than oppose it, they expressed their grave concern about it). It was, for me, one of the most rewarding experiences I have had since we got involved in the uranium issue. I know that is also true for many of the people who were there that night, people who have been fighting to protect these hills for a very, very long time.

Our gratitude to the city council is immense. They did something no other governmental body in South Dakota has yet done in this process: genuinely looked at the facts, not simply taken lobbyists and hired men for their word, and acted to protect people, water, industry, and land. Our state legislature failed greatly when they took our state monitoring ability away a couple years ago, and they did so at the admitted bidding of Powertech. They didn’t ask questions then, and a majority are still declining to do so – though that tide is also beginning to turn. Because, you see, you can only tell lies for so long when there are people on the other side shouting the truth from the rooftops. Or from the grassroots, as it is in this case. The Rapid City Common Council is closest to the people, and has been the first to listen to those people. They will not be the last.

On top of that, yesterday the Legislative Rules Review Committee declined to approve extremely poorly written raw milk rules. It was one of the most tense and stressful hearings I’ve been in for quite some time, and it was not clear the rules would be sent back to the Department of Agriculture until the very end of a very long conversation. And it was extraordinarily frustrating to have to sit and listen to half-truths being told as if that were good enough (I’ll have a great deal more to say about this tomorrow). In the end there was enough confusion about what was new and what wasn’t, and the lack of information presented by the Department about the impact on small businesses (the only businesses providing raw milk in this state), and the committee sent the rules back.

This is definitely a win of the battle, not the war. But we have some time. And our hope is we can stop battling with the Department of Agriculture and actually start talking with them, something the nature of a rules writing process just doesn’t allow. Our farmers are weary and tired of going to hearings. There is a long-term solution to these issues, but as long as the rules on the table keep being pushed, we aren’t going to be able to get to that solution.

At both the city council meeting and the rules review committee, all it took was a look around the room to give me hope that we will continue winning. I find wherever I go in my work here at Dakota Rural Action I am surrounded by, in my opinion, some of the best people on this planet. They say you know the quality of a person by looking at their friends, and I think you know the quality of an issue by looking at the people who support it. There are people of immeasurable quality working on these issues. My hat is off to all of you. And though I know the road will be rough and long, I look forward to walking it with all of you.

Raw milk hearing summary from member Gena Parkhurst

SUMMARY of June 6th raw milk rules hearing, Pierre, SD 12:30pm CST (left room about 3:30pm CST)

PUBLIC COMMENT SESSION

Hearing officer:  Hillary Brady

Ms. Brady welcomed everyone, and stated that the purpose of the hearing was to discuss the proposed raw milk rules, NOT to discuss the nutritional content or health benefits of raw milk.  She gave a 10 minute limit for testimony.  She noted that Courtney De La Rosa would be speaking for the proponents.  She asked who would speak for the opponents.  Gena Parkhurst volunteered.

Courtney referred to a dozen or two cases of raw milk related illnesses – this contradicts her multiple statements made at the Rapid City April 15 meeting where she said, more than once, that there were no cases of raw milk related illnesses, and rules were being changed in the spirit of Gov Daugaard’s Red Tape Review.  I called her on June 7th and asked about this, and she said there were reported at a state level, not to the CDC.  I asked her for the documentation and she said it would be part of the record and available to us soon.

Courtney said that 39-6-9 does give SDDA authority to promulgate rules for raw milk because the dairies that produce raw milk have grade A licenses.  Courtney went over her 10 minutes and asked for 1 extra minute if an extra minute was granted to the other side.  Ms. Brady granted this request.

Dustin Oedekoven DVM State Veterinarian briefly stated his perceived need for 12:81:03:06 (new TB and brucellosis testing requirements).

Then it was time for 14 opponents to testify.

After the testimony, hearing officer Ms. Brady offered 5 minutes of rebuttal time to both sides.  Courtney declined.  Gena accepted.  During her 5 minutes, Gena addressed the following:

1.  For the record, submitted part of Dawn Habeck’s testimony in writing

2.  For the record, submitted Travis Lasseter’s emails re: legality of herdshares

3.  Requested that all written comments submitted be added to the record, with a count of proponents and opponents

4.  Requested the impact statement on small business – Ms. Brady said no such document was submitted

5.  Commented on Courtney’s statement that SD’s proposed rules would put the state in a position of being average among other states with raw milk rules…Gena said that MI, ND, and Maine had recently adopted legislation that called for little to no regulation of herdshares

6.  Commented on Courtney’s statement that 39-6-9 applied to raw milk because raw milk dairies had grade A permits – Gena noted that not all of the raw milk dairies have a grade A permit – one has a manufacturing grade permit and thus did not fall under 39-6-9 (afterwards Gena asked Darwin about this and he said you are right, so 40-32-18 applies)

7.  Gena commented that TB and brucellosis testing are unnecessary because SD has been an accredited TB/bruc state for quite a few years, and also mentioned that meat cattle and pasteurized dairy herds are not tested for TB/bruc, and that laws exist to test animals before they enter SD

SDCL 1-26-4  8) The agency shall serve the minutes of the hearing (Courtney says this refers to Interim Rules Review hearing, NOT yesterday’s comment hearing) – turn over written record on the day of the hearing), a complete record of written comments, the impact statement on small business, the fiscal note, the information required in § 1-26-4.8, and a corrected copy of the rules on the members of the Interim Rules Review Committee at least five days before the agency appears before the committee to present the rules.

Note:  Secretary of Ag Lucas Lentsch did not attend the hearing – he greeted attendees before the hearing started, and left before any testimony was given, supposedly because he wanted to remain neutral!  The reason we drove all the way to Pierre to speak at the hearing was for him and his department to hear us speak.

After the hearing we asked Courtney and Darwin questions.  First of all they said the comment period was extended 10 more days to June 17th.  Comments can be submitted by letter via postal mail or email at agmail@state.sd.us

Courtney said to tell people that if they have already written a letter to you, please indicate that they have, so they can keep that person’s comments together and this will make it easier for the Ag Sec to go through the comments- this is a continuation of my testimony, or this is further comment, in addition to my earlier letter.

Sec. Lentsch will review all written and oral comments by June 24th or so.  At that time, Courtney will know if the rules will be thrown out, modified, or taken to the next step as-is (next step is Interim Rules Review Committee hearing).

The Interim Rules Review Committee meets on July 9th.  SDDA only needs to give 5 days notice.

Transcript available from Carla Bachand, Capitol Reporting Services, PO Box 903, Pierre SD 57501 605-224-7611 – can order and pay for a copy from her and receive within a few days after she is done typing them up (she needs 4 days to type them), or can wait and write a letter to Courtney requesting the public records which will contain the transcript – takes 2 to 3 weeks and costs 10 cents per page.

Yesterday’s hearing was NOT recorded or broadcast.  The next one would be.