Greens to Overturn Criminalisation of Raw Milk Cow-Share Scheme
12/05/2015 2:30 pm
The Greens have today expressed disappointment at the ‘guilty’ verdict for Willunga dairy farmers, Mark and Helen Tyler of Moo View Dairy. Today’s decision by the Christies Beach Magistrates Court has effectively ruled that cow-share schemes such as that operated by Moo View Dairy fall foul of the prohibition against the sale of unpasteurised milk. This will be a blow to the hundreds of cow-shareholders who enjoy choosing this type of milk over more processed products.
“The Greens were highly critical of the State Government’s crusade against food choice. Rather than prosecuting the dairy owners, the Government should have worked with the dairy and with consumers to bring this industry within the regulatory framework.
“There is a clear demand for unpasteurised milk and milk products in the community and the Greens urge the Government to ditch the nanny state approach in favour of sensible Regulations,” said Mark Parnell MLC, Parliamentary Leader of the Greens SA.
“I will be closely analysing the verdict and determining what legislative change is needed to bring the raw milk industry inside the regulatory tent. I think the community expects a sensible approach to food regulation, not prosecutions that attack consumers and their right to choose.
“Once we know which laws need to be reformed, the Greens will introduce the appropriate legislation into Parliament,” concluded Mark Parnell.
Note: Additional information
There's been lots of debate on social media about this release, so I thought some additional information might help explain my position on this.
Firstly, yesterday’s court decision has certainly generated lots of public discussion, which is a good thing. It has got people talking about public health and the role of law. It also raises issues of state control vs personal freedom.
As a former lecturer in public health law, I am well aware of important initiatives, programs and inventions that have vastly improved public health and improved longevity and reduced mortality. These include deep drainage of municipal waste, vaccination and pasteurisation. I have taught public health and environmental law at Flinders, Adelaide and UniSA as well as overseas. I’m a lawyer, economist and planner by training, so I rely on medical and other experts to help inform my view on public health science.
In relation to milk, I think there is no doubt about the public health benefits of pasteurisation and I believe it should remain the legal standard for the mass production and sale of milk products. I have no doubt it has saved countless lives.
However, the legal situation is more complex. It is quite legal to drink unpasteurised milk. It always has been. It is legal to give it to your children to drink. It is legal to give it to your friends and neighbours. The only thing that isn’t legal is to sell it. As a result, those people who for whatever reason prefer to drink unpasteurised milk have gone to quite unusual lengths to access it. That has resulted in the multitude of schemes around Australia and overseas including “bath milk”, “pets’ milk” or the “cow-share” scheme operating in South Australia. All of these seek to circumvent the prohibition on sale of unpasteurised milk by either claiming that it’s not for human consumption or structuring the transaction so that it isn’t a “sale”.
The decision in the Magistrates’ Court yesterday didn’t deal with any issues of food safety, only whether the cow-share scheme was a “sale”. The Court found it was, so unless the farmer appeals or finds another mechanism, the 700 shareholders will no longer be able to access what they see as their right to get milk from their own cows. The farmer would be free to give the milk away I expect, although the legal judgment (when it is available) might shed some light on this. He could also pasteurise it, but that’s not what his shareholders want.
In relation to whether unpasteurised milk can be guaranteed to be completely safe, the answer is no (as it is with many other food products). I also accept that it is more likely to be more dangerous than pasteurised milk.
The next question is whether or not the risk is such that consumption of raw milk should be banned? This is where it gets interesting, because the Government has no intention of banning consumption. I don’t think any government has ever gone down this path. The only prohibition is on “sale”. As a result, farmers and their friends and families have legal access to unpasteurised milk, but others don’t.
As far as I’m concerned, the milk that is sold in supermarkets or grocers needs to be pasteurised. This should remain the standard. However the question that law-makers need to grapple with is whether there is any scope for regulating a raw milk industry with enforceable standards, regular inspections and the like. I would expect the standards to be much more rigorous than with pasteurised milk. Methods of distribution would also need to be more restrictive to ensure that nobody “accidentally” got raw milk when they expected pasteurised milk. There would also be regulations around labelling including use-by dates. At present, there are no labels because the industry is outside the regulatory system. It is likely that the more onerous inspection and reporting regime will make the product more expensive and I don’t have any problem with that.
Compare this with the regulatory approach for alternative waste management systems. If you put your waste down the sewer, there is no further obligation on you, but if you have an on-site process such as a composting toilet or reed-bed grey water filtration system, then you are subject to additional costs and inspection to ensure that public health standards are maintained. In short, it is the price you pay for being different and not using the communal service. I think there are parallels in this approach for the milk industry.
So, unless the Government comes to grips with this issue, the market for unpasteurised milk will simply move further underground. It won’t go away. Think Prohibition in the US in the 20s and 30s.
The demand for raw milk is small, but consumers are loyal. Whether or not they are misguided about the benefits of the product, in my experience most of them have made an informed choice. Whether they have informed themselves sufficiently might be a matter of debate, but there are an impressive number of advocates including micro-biologists who vouch for its efficacy and safety. Most appreciate that there is a low risk, which they are prepared to take. What they don’t accept is the Government telling them what they are or aren’t allowed to eat.
Whilst I don’t have a comprehensive solution (the Court judgment isn’t yet available), I would suggest decriminalising the existing cow-share arrangements. The milk won’t be sold in shops. It won’t be available to anyone but shareholders. However the dairy will be legal and regularly tested and inspected. This seems to me a good balance between protecting the general public, whilst allowing the cow shareholders to continue to drink milk from their own cows, even if they don’t live on a farm.
Another great irony in this public health debate is that on a scale of harm to the community, this is quite low down on the list. Tobacco kills 22 South Australians every week, yet it isn’t banned. Deaths from alcohol also run into the thousands, yet both industries are regulated rather than banned.
In a democracy, there is a balance to be struck between individual freedom and the right of the State to regulate behaviour. I support vaccination laws and seatbelt laws but I think some flexibility in relation to milk is warranted, especially given that consumption of unpasteurised milk is quite legal.
Personally, I don’t drink raw milk. I prefer the convenience and shelf-life that comes with a pasteurised product from the supermarket. However, like Voltaire, I will defend the right of others to make choices for themselves, especially those that impact primarily on individuals. I know that the public health system may end up picking up the tab for a rare case of contamination (as we do daily for tobacco & alcohol), but ultimately it’s a matter of personal choice. I don’t want to encourage or promote raw milk, but I know that outlawing it won’t work, hence my call for regulation.
Some links below
For more background, here’s a 2 minute news report from 2013: https://www.youtube.com/watch?v=GdxhRqOv0OU
Here’s a short speech I made in Parliament two years ago on this: http://www.markparnell.org.au/speech.php?speech=1245
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