Texas has shown that you do not need a legislative body to make it easier to sell unpasteurized, raw milk legally. 

The new Texas Department of State Health Services rules permit widespread delivery of raw milk anywher in the Lone Star State, allowing raw milk dairies to distribute their products to practically anyone in the state. 

It means groups like the Cameron, TX-based Farm and Ranch Freedom Alliance have, after a decade or more, been successful in winning in Texas  in the debate about sales of milk without pasteurization that kills most bacteria.

“We’ve been trying for several sessions to get a bill passed that would have allowed the farmers to deliver their milk,” said Judith McGeary, executive producer of the Farm and Ranch Alliance.

Such raw milk sales are now possible because of a change in rules by the state health department, a move that McGeary credits mostly commercial dairies that pasteurize milk.

Whoever gets the credit means raw milk dairy farms in Texas are much more able to make deliveries in the Lone Star State. once there is a sale at a farmer’s market or over the internet, a complete sale can occur just about anyplace.

The key is to keep the sale at the self size or its online site, not just on the farm as was in the past.

The new rule in Texas also recognizes the legality of an animal purchase that can be a  share of an animal or herd to receive a portion of the raw milk produced.

After years, Texas now has revised rules for raw milk producers in the state that opens new opportunities for farmers, and addresses problems that have occurred with sampling, and provides clear recognition for dairy herd shares, supporters say.

Previously, by meeting licensing requirements — a Grade A “raw for retail” license — Texas farmers could sell raw milk directly to consumers, but sales  were limited to on-farm only because of DSHS rules. 

The Farm and Ranch Freedom Alliance first tried in 2009 to change the rules at the agency level. When the agency refused, it took the issue to the Texas Legislature and got a bill introduced during five sessions.

Majorities in both the Texas House and Senate voted in favor of the Farm and Ranch Freedom bill — but never in the same session. The regular industry, which uses pasteurization in the processing and distributing dairy products, and local health departments were in opposition and expended significant financial and political resources to kill the bills each time.

But persistent, strategic organizing paid off. The pressure raw dairies created over the years through the legislative process, together with a reputation for solid factual and legal arguments and its approach to negotiating, made an impact on the agency, proponents say.

In February of 2020, the alliance launched into action when DSHS posted draft rule changes that it considered contained several bad provisions. In addition, it urged the agency to pull back on the problem sections wher the alliance also recommended changes that raw dairy farmers needed — not just those that it had supported in past legislation, but additional for concerns that have never made it into a bill. 

This tactic opened extensive negotiations with the DSHS staff, which have resulted in some changes. The final rules reverse the bad provisions from the draft version and incorporate many of the affirmative changes the alliance urged.

The new rules:

1. Legalize delivery of raw milk anywher in the state that the consumers and farmers wish to arrange. Sales at farmers’ markets — a provision the alliance pushed for many years — are still not allowed, but a farmers’ market booth could serve as a delivery point for pre-purchased raw milk.
2. Empower farmers to take their samples to any approved lab, so they have an option if they are concerned that their inspector or the local lab is not handling their samples properly. Such an issue that, in the past, caused several farmers to have their licenses suspended.
3. Recognize the legality of animal shares. Until now, cow/goat/herd shares — under which someone purchases a share of the animal or the herd and then gets a share of the milk produced by that animal — have operated in a gray area of Texas law. We contended that they were legal under normal principles of contract law, while the agency contended that they were illegal sales. So, people with one or two cows, too few to justify the expense of a license, operated under a cloud of fear of government action. Now, as long as the herd share operates with a bill of sale and divides milk proportionally, which a true herd share should do, the agency’s new rules recognize that it is not a “sale” and is excluded from the regulations.

Other victories claimed by the alliance in the final rule include:

• No requirement for farmers to keep or provide a customer list, which was a proposal in the draft rules that agency staff had also urged back in 2009.
• The definition of the raw milk products that can be sold by Grade A licensed producers has been expanded. It includes not only milk, but also cream, sour cream including acidified and cultured sour cream, plain and flavored yogurts, buttermilk, whey, eggnog and kefir. It does not include infant formula, ice cream or frozen desserts, raw butter, or raw cheese that has not been aged a minimum of 60 days.
• Inspections will be “at least quarterly,” which is less frequent than the current requirements. Because of the reduced frequency of sampling, two consecutive violations of bacterial counts, coliform, somatic cell counts, water adulteration, or cooling temps is enough for the agency to take a farmer off-grade, as opposed to the current three out of five tests.

More details in the new rule

Delivery requirements: In addition to the general requirements for a Grade A license, the farmer must keep cold temperatures, use ice from potable water sources, and have a temperature-control sample. The farmer must keep records of how much is delivered and the sample’s temperature.

Labeling Requirements: Each bottle will have a batch number showing the date the milk was bottled, but, unlike the draft rules, the time is not required. There is also a warning label that follows the language put forward as part of bills in past years.

Frozen Milk: If the farmer freezes milk, there must be unfrozen samples available for the department to sample from the most current milking. The draft rules had completely banned freezing raw milk.

Test Results: Farmers must post their last two test results in the milk house or store front and notify customers that testing results are available upon request.

What is a herd share?
A herd share, also known as a cow or goat share, is the purchase of ownership of a portion, or share, of a milking herd or individual milking animal.

A consumer first buys a share of the animal or herd through a legal bill of sale. They then enter into a boarding agreement with the farmer, paying the farmer a fee — typically monthly — to house, care for, and milk the animal. The boarding agreement fee is supposed to cover costs of feed, maintenance, time, labor, equipment depreciation, etc. This fee is nota charge for the milk. The boarding fee must be paid regardless of variations in milk production; and even if a herd share owner is out of town for a few weeks, they still pay the boarding fee even though they aren’t getting their milk while they are away.

The farmer provides the share owner with their share of the milk produced at no additional expense — because it’s not a sale of the milk, it’s that consumer’s milk already. The consumer pays costs, and receives milk, in proportion to their ownership interest.