The Food Lawyer

In response to my initial post, Dusty posed an interesting question about raw milk:

If a member of Farm Dreams farms in a state that allows raw milk to be sold as pet food as long as it's properly labeled, do you see any liability or legal risk for the farmer?  If so, could that be mitigated with an umbrella policy for the farm since they're operating within the state law? 

There is very little risk in the precise transaction Dusty proposed. If a farmer truly wants to sell a pet-product to be consumed by pets, a farmer must only comply with state law regarding food for animal consumption. (Yes, there are food laws for critters, too, but no ‘Pet Food Lawyers’ yet.)

Dusty’s question alludes to an interesting trend in small-scale agriculture, the practice of “moo-n-shining”, selling raw milk under some artifice in order to circumvent local prohibitions against its sale for human consumption.

As the popularity of raw milk increases, the practice of circumventing prohibitions has gained some favorable and far too deferential treatment in the press. A few months ago, the practice of labeling raw milk as pet food was uncritically profiled in a lop-sided piece on National Public Radio. It is truly a shame that responsible journalists have not reviewed these tactics with more skepticism. At best, these “moo-n shine” methods have unpredictable and not always favorable results for the farmers that use them. It is definitely unwise to craft a regulatory risk management strategy around a story on the radio. 

The best guidance I have is that every state has different laws regarding raw milk. State laws are generally written quite comprehensively and can regulate all sorts of raw milk transactions including gifts, donations, or “cow-share” arrangements. These laws usually empower state regulators to seize, impound, or destroy the milk products of suspected violators. 

Farmers who put their faith in moo-nshine tactics run the additional risk of violating state labeling and misbranding rules. These are violations separate from raw milk laws and expose the farmer to even more criminal or civil liability. 

With regard to a private insurance policy, knowingly violating raw milk prohibitions using a moo-n shine scheme might be grounds to void your policy and your coverage. Insurers will exploit any opportunity to refuse a claim. Intentionally selling a deliberately mislabeled product with a wink and a nod presents your insurer with the perfect excuse to deny you coverage.

Think twice - despite what the polls say, legislators are not dumb. Chances are, they drafted language that covers any moo-n shine activity you can think of. Be wary.

Views: 348

Tags: Cow, Food, Milk, Moo-n-shine, Pet, cow share, raw milk

Comment by SELAH Farm on December 16, 2011 at 6:44pm

Really? If you clearly label it "For PET use only. NOT for Human Consumption." 

How could there be any problems?

If some person purchases it and then consumes it themselves, aren't they taking the risk completely upon themselves?

How could you be held liable if the product is clearly label and they misuse it?

Comment by Neville McNaughton on December 19, 2011 at 12:16pm

Dr. Cheese says: all milk and cheese sold as pet food must meet high standards, pet food if frequently place in full access of children, near the floor etc. making pets sick is one thing but making children sick who eat, touch or play with pet food is unacceptable.  

Comment by Jason Foscolo on December 19, 2011 at 6:49pm

Let's be careful to separate the two distinct issues in your comment.

The first is dealing with state regulators seeking to enforce pasteurization laws. If a grower were truly selling raw milk as pet food, he or she may be able to avoid regulation. Perform the same transaction, however, with the knowledge that you and the consumer both know that the pet food label is a mere artifice to avoid regulation, you will be exposing yourself to liability. 

Product liability is the second and separate issue posed by your comment. Disclaimers and assumption of risk are not always reliable defenses in a product liability case. Not only is a product manufacturer liable for the obvious dangers posed by a product, the producer is sometimes obligated to think ahead and prepare to safeguard even the slow-witted and ignorant end user who misuses the product in a foreseeable way. This is why a radial arm saw is sold with a safety guard, or why medicine bottles come with child-proof tops. In your example, should the seller perhaps put the 'pet food' in a typical milk bottle, a child below the age of literacy would not be able to read a disclaimer. A slick product liability attorney - working on behalf of the sickened child for example - could easily tear your defenses to pieces. 

A good comment, indeed.

Comment by Neville McNaughton on December 19, 2011 at 6:57pm

Thank you for the clarification.  I want my clients whom we advise on a variety of subjects to remain in business.  If pet food is made to a lower standard than real food we must be careful.  We are in the business of producing and selling real food, therefore we want it to be high quality no matter what the label.  

Pet food has been the subject of many recalls lately ranging from Salmonella to aflatoxin, I want my Pet getting the best food available.

Thanks for helping out.

Comment by SELAH Farm on December 20, 2011 at 8:53am

Jason, 

Thank you for answering, clearly and understandably. 

So from what I now understand from your answer is that one should only sell "Pet Milk" to the most highly intelligent of people.

lol

By the way, thank you so much for blogging here. Your expert assistance is greatly appreciated.

Comment by Melody D. on December 27, 2011 at 7:27pm

In our state (Indiana), even pet milk requires a commercial pet food license.  It also requires a certain amount of testing for quality and a yearly fee.

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