With the passage of the Administrative Procedures Act in the states and at the federal level, government agencies have been given powers traditionally reserved to the legislative and judicial branches. The result has been less representative government and situations where the bureaucracy rules by administrative fiat with little or no input from the public. A prime example of this would be a recent policy on raw milk enforcement implemented by the Vermont Agency of Agriculture, Food and Markets (VAAFM).
The sale of raw milk is legal in Vermont with the state legislature establishing a two-tier system in which producers can sell more raw milk each week if they comply with additional requirements regarding matters such as inspection, registration, and testing. Producers can also deliver raw milk to customers if they meet these requirements. Prior to 2014, Tier 2 producers could only either sell on the farm or through delivery direct to the customer’s residence. In July a new law went into effect allowing raw milk producers to sell at farmers markets, a significant improvement in the producer’s ability to sell raw milk.
New Policy Harder on Raw Milk Producers
The VAAFM, which has long been hostile to raw milk sales, implemented a new compliance and enforcement policy in October that looks to be designed not to benefit public health but rather to make it more difficult for Tier 2 producers to make a living.
Vermont producers face some of the strictest testing standards in the country with limits of 15,000 colony forming units per milliliter (cfu/ml) on the total bacteria count, 10 cfu/ml on the coliform count and 225,000 per ml on the somatic cell count (SCC). Under VAAFM’s new policy, a producer with just one total bacteria or coliform count above the limit “must warn all customers that the most recent bacteria coliform count result was over the limit (at the farm and at any point of delivery) and retest the week following the initial sampling.” If the follow-up sample tests above the limit, the producer must “stop all sales until an acceptable test result is achieved.” Most states having a total bacteria and test requirement have a 20,000 cfu/ml standard (which is also the same standard for pasteurized milk under the Pasteurized Milk Ordinance [PMO]). Most, if not all, states do not suspend sales of raw milk for human consumption or raw milk intended to be pasteurized unless 3 out of 5 consecutive tests are high for either coliform or total bacteria count. From 2009, when the original raw milk law went into effect, until the policy change, 3 out of 5 had also been the standard in Vermont.
As for a test above the limit for somatic cell count, again the “Producer must warn all customers that the most recent SCC result was over the limit (an easily read sign at the farm and at any point of delivery is sufficient).” The producer is also required to immediately contact a veterinarian to assess the herd and milking procedures to determine the cause of the mastitis and to minimize the potential for pathogens to shed in the milk.”
Vermont likely has the lowest somatic cell count requirement in the world; most states having an SCC requirement have a 750,000 standard, which is also the same requirement under the PMO. While someone with a 226,000 somatic cell count is well under the limit anywhere else in the U.S., in Vermont the dairy has to pay for a vet to assess the herd as well as warn its customers about the high count.
The purpose of VAAFM’s new policy is to scare the customers of raw milk producers so they will no longer buy the product. As raw milk research and expert Dr. Ted Beals pointed out in a letter to VAAFM Secretary Chuck Ross, “These tests (Total Bacteria Count, Coliform Count, and Somatic Cell Count) are extremely useful for dairy management, but are not intended for, nor useful for protecting the consumer from illness.” In a separate letter to Secretary Ross, Andrea Stander, Director of Rural Vermont stated, “The new policy provides no meaningful increase in protection of public health, safety or informed consent for consumers…” The Agency has also not provided any substantiated justification for the change in policy.
No Due Process for New Policy
Raw milk producers were afforded no due process in the implementation of the new policy; VAAFM gave them no opportunity to make comments before the policy went into effect, and it was Rural Vermont that first informed the producers of its planned implementation, not the agency. In her letter to Ross, Stander charged “the VAAFM (with whom all Tier 2 producers are duly registered) gave no indication that it intended to notify the farmers who would be impacted by the policy in advance of its original effective date of September 1, 2014.”
VAAFM’s new policy on testing (the policy covered other matters beyond testing standards for Tier 2 producers), in effect, creates law; the agency should have provided public notice with an opportunity for comment as required by the state Administrative Procedures Act. What is happening in Vermont is also taking place more often elsewhere around the country where bureaucrats are making law with little or no accountability. For this end-around on representative government to stop, the legislative and judicial branches will have to rein in the bureaucracy through greater oversight from the legislature and less deference from the courts; currently they are doing little besides giving the government agencies a blank check.