Raw Milk Regulations Move Forward in Illinois

By: Rebecca Osland

January 7th marked a significant change for raw milk in Illinois.  For several decades, raw milk sales have taken place under minimal policy guidance, but never were there formal regulations.  These sales will now be regulated by the Illinois Department of Public Health (IDPH) under new rules.

The change is not due to any kind of health incident, but because, a few years ago, a governmental review of regulations brought to light the fact that no rules had ever been written for the Grade A Pasteurized Milk and Milk Products Act.  The Grade A Act was read to allow raw milk sales only if there were regulations in place.  Raw milk producers who had operated under the state’s policy guidance for roughly 30 years now learned that what they were doing was technically illegal, by no fault of their own.

 

Thus ensued a multi-year effort by IDPH–spanning two different administrations–to develop a regulatory platform to oversee production and sales of raw milk.  During this time, thankfully, there was an understanding that business could continue as usual, until rules were finalized.  While raw milk supporters used public comment periods to express their distress over the restrictiveness of early draft rules, even more drama was playing out in the legislature.

In 2014, Illinois Stewardship Alliance successfully banded together with raw milk producers, consumers, and other supporters to defeat a bill that would have banned raw milk completely.  The bill’s original language referred to the Restroom Access Act, but, a full two months into the legislative session, that bill was gutted and replaced with a ban on raw milk, without warning.  Raw milk supporters flooded legislators with calls and emails, defeating this legislation handily.  Not only did the bill’s sponsors drop the bill, but chief sponsor, Rep. Daniel Burke, and colleagues, enjoyed glasses of raw milk with Wes King, Illinois Stewardship Alliance’s executive director at the time, and Rep. Burke became a supporter of raw milk rights.

While IDPH continued its work drafting rules, Illinois Stewardship Alliance and other advocates tried to take the pressure off of the regulatory process with their own attempt to amend the Grade A Act last year.  The idea was to allow, but not require, rulemaking, in order to retain the possibility that the status quo might continue.  This time raw milk supporters saw their legislative efforts defeated.

Within a span of two years, the legislature had essentially staked rough parameters on both sides of the debate—it would neither prohibit raw milk altogether nor allow the market to continue without regulation.  Producers still saw all of this as a solution in search of a nonexistent problem and were very wary of the intent behind it all, given the sneak legislative attack they weathered in 2014.  The Second Notice of proposed regulations came out in June, 2015, under the new administration, and actually incorporated a number of changes that raw milk supporters had urged, but producers still had serious concerns.

As the rulemaking neared its planned conclusion, local public health groups and raw milk supporters still strongly disagreed with each other, and both groups still opposed IDPH’s proposed rules, so deadlines were extended to allow for in-person negotiations.  Despite exhausting all possible extensions to these deadlines, conflicts among stakeholders still existed when the rules came up for a vote at a meeting of the Joint Committee on Administrative Rules (JCAR).[1]

However, if no rules were accepted by the final deadline of February 8, the state would have begun treating raw milk as illegal.  Without rules, not only would raw milk producers risk potential enforcement action, but their bargaining position would likely be weaker in any future efforts to improve the law and regulations.  Nonetheless, many producers are furious at this result, after so many decades of operating their small businesses without food safety incidents.  This was not a fight that they asked for or provoked.

At the same time, IDPH and JCAR surely did not want the rulemaking to fail, as this whole process would then have to start over for a few more years, during which time, raw milk would be in a “Wild West” situation.  To their credit, both IDPH and JCAR put meaningful effort into bringing opposing views together to try to reach a livable compromise before the deadline, but each stakeholder group ended up with disappointments.

IDPH had included a “Tier II” permit allowing the use of one drop point–subject to several requirements–to help make it a little bit easier for consumers to get the milk.  Raw milk supporters urged IDPH to allow more than one drop point.  In the end, local public health groups successfully argued to JCAR that this went beyond what the Grade A Act allows and was therefore prohibited as a matter of law.  IDPH reluctantly removed this section from the rules to avoid letting the rulemaking fail at the last minute.  Now, sales are restricted to the actual location where the animals are kept, which will mean limited business for producers.  It also means a missed public safety opportunity to bring drop points out from the underground.

On the other hand, IDPH also made some changes that raw milk producers had requested.  A few of these changes should help to prevent abuse of discretion by inspectors who are motivated by a personal desire to put raw milk producers out of business.  This was one of the major concerns that producers had, and still have, about becoming regulated.  In addition, during stakeholder meetings, IDPH assured the farmers that it intends to investigate and address any problems farmers report about inspectors.

Another last-minute improvement to the rules was the addition of a compliance date, set to be July 1, 2016.  This will provide time for IDPH to produce guidance to help the farmers and for the farmers to come into compliance with the regulations.  IDPH demonstrated that it is willing to listen to the farmers and is willing to take a science-based, rather than fear-based, approach to this highly-demanded beverage.  Improvements are still needed, but at least raw milk will not ‘become’ illegal, and, the agency tasked with oversight has demonstrated a deeper understanding of, and interest in, raw milk than is the norm.

Once the regulations are published in their final form, we will share a link to the rules, and will provide additional resources as guidance is developed.

 

 

[1] JCAR is a special committee of the legislature that reviews all proposed regulations before they can become final.