Raw Milk Update: Texas Jury Rules Raw Milk Sale Illegal

Written by M. Sean High – Staff Attorney

On December 16, 2015, the Farm-to-Consumer Legal Defense Fund (FTCLDF) reported that its client, Texas dairy farmer Eldon Hooley, had lost his jury trial regarding the sale of raw milk. 

According to FTCLDF, raw milk produced on Hooley’s dairy farm (located within the city of Grandview, Texas), transported by a van owned by Hooley, was seized by law enforcement officials at an off-farm customer drop-site located within the Fort Worth, Texas city limits.  At the time of the seizure, Hooley’s state license to sell raw milk was under suspension after his raw milk had previously tested positive for the bacteria Yersinia.  

Though Hooley’s dairy farm was not located within the Fort Worth city limits, prosecutors argued that under the Fort Worth city code regulating food establishments: 1) Hooley’s van met the classification of food establishment; and 2) because Hooley’s raw milk license was under suspension, the raw milk sales were illegal.  According to FTCLDF, the jury agreed with the city prosecutors and determined that Hooley should pay $1,500 in fines plus $67 for court costs.  

Similarly, in Pennsylvania, state law makes it illegal to sell raw milk for human consumption without a permit issued by the Pennsylvania Department of Agriculture (PDA).  Accordingly, raw milk sales must remain “in compliance with the testing and documentation requirements of the Milk Sanitation Law, and any other applicable statute or regulation.” Furthermore, any raw milk used in the manufacturing of aged cheese can only be sold if PDA specifically issues a permit for the sale of aged cheese produced from raw milk.  Importantly, PDA is empowered to file summary criminal prosecutions for any raw milk permitting violation.

In Pennsylvania, if a dairy farmer continues to sell raw milk after their raw milk permit has been revoked or suspended, PDA may “[a]pprise the Department of Health and any local health department having jurisdiction of the situation, and recommend these entities take lawful action to ensure that sales of raw milk cease.”  Additionally, PDA may ask the Pennsylvania Office of Attorney General to: 1) seek an injunction to prevent raw milk sales; and 2) seek fines and/or imprisonment if an injunction is violated.  Relevant to Hooley’s transportation of raw milk via his van, Pennsylvania state law defines raw milk sales broadly to include “the selling, exchanging, delivering or having in possession, care, control or custody with intent to sell, exchange, or deliver or to offer or to expose for sale.” 

On a related side-note, under Pennsylvania’s raw milk law, “[w]henever, in the opinion of the [PDA] Secretary, a given supply of raw milk or raw milk products is considered unsafe or a menace to public health, the Secretary may seize, condemn, denature or destroy the milk or milk products, without compensation to the owner of the milk or milk products.”   

How PA Hunters Can Help Protect Against HPAI Spread

Written by Tyler R. Etter

The Pennsylvania Department of Agriculture and Game Commission are urging hunters to remain vigilant during waterfowl season. Hunters are urged to follow a series of tips and biosecurity measures to reduce the risk of spreading infection of highly pathogenic avian influenza (HPAI).

Although HPAI infection in wild animals has been historically rare, there were cases of infection in wild populations in the spring outbreak.  Signs that hunters should look for include: sudden death, marked loss of appetite, reduced feed consumption, cessation of normal flock vocalization, drops in egg production, depression, coughing, nasal and ocular discharge, swollen face, cyanosis of comb/wattles, diarrhea (often green in color), and nervous signs such as paralysis. Infected ducks are typically asymptomatic, but geese are more likely to have visible symptoms.

Hunters are urged to follow these tips when harvesting birds: dress wild birds in the field when possible, do not eat, drink or smoke while cleaning, wear rubber gloves, wash hands with soap and water, wash all tools and work surfaces, then disinfect. Further, hunters are encouraged to follow some biosecurity measures, including harvesting or handling obviously sick birds or those found dead, avoid entering a poultry premises for at least 72 hours after hunting, as well as keeping hunting gear off of poultry premises.

Game Commission Executive Director R. Matthew Hough states that hunters are very much on the frontline when it comes to protecting Pennsylvania from HPAI. “Hunters need to educate themselves to know the clinical signs of HPAI, and employ safe practices in handling wild birds they harvest.”

Concerns Over Avian Flu Leads to Revised Poultry Transportation Standards

Written by Katharine Richter

Acting under authority granted by the Domestic Animal Law (3 Pa.C.S.A. §§ 2301—2389) the Pennsylvania Department of Agriculture has issued an Interstate and General Quarantine Order focused on addressing the spread of Highly Pathogenic Avian Influenza (HPAI).  The order was published in the PA Bulletin on Saturday, August 22 and specifically targets the H5N2 and H5N8 strains of the disease which, according to the order, “have developed into a virulent form of the disease . . . [and] are easily spread, and may mutate into strains that are communicable to or among humans.”

The quarantine order applies to the entire Commonwealth of Pennsylvania and encompasses chicken, turkey and numerous species of game birds such as doves, pheasants, and grouse, as well as “all . . . waterfowl and any other species of bird . . . that may contract or harbor Avian Influenza virus.”

The quarantine order requires that any “conveyance[s], vehicle[s], container[s], and material[s]” used to transport any of the affected species into or within the Commonwealth must be cleaned and disinfected.  In the case of vehicles and conveyances the mandate requires the use of commercial truck washing equipment or its equivalent and extends to the inside of the cab, specifically including the “inside floor boards and pedals” must be cleaned.

The owner or operator must retain proof of cleaning for one month after the cleaning occurs.  The order specifies that “A receipt from a commercial truck washing operation or documentation of the place and type of equivalent equipment utilized showing the date and time” the cleaning occurred must be available for inspection by the Department of Agriculture or the Pennsylvania State Police.

The order became effective on its publication in the PA Bulletin.

PA Ag Secretary Redding Provides Update to Avian Influenza Planning

On July 29, 2015, Pennsylvania Department of Agriculture Secretary Russell Redding addressed the current state of planning for a potential avian influenza outbreak within Pennsylvania.

Secretary Redding stated that Governor Tom Wolfe has allocated $3.5 million to the department to continue planning response operations should an outbreak occur. Although there have been no outbreaks within the state as of yet, Secretary Redding expressed concern about the possibility of infection arriving within the state during the fall as wild bird migration begins.

Secretary Redding also emphasized the importance of quick responses to contain the virus and limit the amount of damage caused. Currently approximately 50 million birds have been depopulated as a result of avian influenza.

During the outbreak of 1983 and 1984, Pennsylvania’s economy was impacted by $65 million dollars. Currently, the state’s poultry industry is valued at roughly $13 billion. To protect the industry, the department has established a task force, conducted exercises to plan for various scenarios, met with multiple agencies to discuss needs in the face of an outbreak as well as biosecurity measures, suspended all avian shows within the state for 2015 and at the 2016 Pennsylvania Farm Show, and issued a quarantine measure within the state that requires a 72-hour testing requirement for any entering poultry.

Secretary Redding also urged farmers to begin thinking about how to manage their flocks in the event of infection, and to consider how to handle lost production time in the event of depopulations. The department is currently focused on planning and response, but acknowledges that recovery in the face of an outbreak could take months or years.

For more information on avian influenza updates within the state, click here. For information on the national level, click here.

Written by Tyler R. Etter- Research Assistant

July 30, 2015

PDA Publishes Quarantine Order on Poultry at Agricultural Fairs

On July 11, 2015, the Pennsylvania Department of Agriculture (PDA) published notice in the Pennsylvania Bulletin which placed a quarantine order on all poultry and poultry products from the premises of the annual Pennsylvania Farm Show, as well as any competitions, shows, fairs and exhibitions that receive funding pursuant to the Pennsylvania Agricultural Fair Act.  The quarantine will be in effect until further notice from PDA.

The notice cites the authority to issue the quarantine comes from the Domestic Animal Law, specifically 3 Pa. C.S.A. §§ 2329(a) and 2329(d).  Under section 2329(d), avian influenza is considered a “dangerous transmissible disease,” giving the PDA broad authority in how to prevent and handle potential outbreaks.

Secretary of Agriculture Russell Redding issued a press release back on May 11, 2015, announcing these measures.  The press release noted that the measures are in place to prevent a potential outbreak and spread of avian influenza in Pennsylvania.  The last outbreak in Pennsylvania occurred in 1983-84 and 17 million birds were lost that were valued at $65 million.  In 2014, the poultry and egg industry totaled $13 billion in economic activity in Pennsylvania, making prevention of avian influenza critical.  

Written by Katharine Richter - Research Assistant

July 16, 2015

Pennsylvania Department of Agriculture and Penn State Launch New Agricultural Resource Centers

The Pennsylvania Department of Agriculture and Penn State College of Agricultural Sciences partnered to create three new agricultural resource centers. The Animal Care, Food Safety, and Plant Health Resource Centers were developed as focus points for research and programs as well as a mechanism to address more broad issues according to the College of Ag Sciences website.

-          The Animal Care Resource Center will focus on animal care research and science-based best management practices as well as a number of other issues important to food animal producers.

-          The Food Safety Resource Center will focus on compliance with the Food Safety Modernization Act specifically in Pennsylvania in order to meet regulatory expectations.

-          The Plant Health Resource Center will focus on identification and management of pests and invasive species that threaten native plants in Pennsylvania.

For more information, please see the Penn State College of Agriculture’s website on Resource Centers.

Written by Sarah Doyle - Research Assistant
The Agricultural Law Resource and Reference Center
@PSUAgLawCenter
August 13, 2013

New Insurance Opportunity for Pennsylvania Swine Producers

Between today and tomorrow, Oct. 28-29, Pennsylvania swine producers will have their first-ever opportunity to enroll in Livestock Gross Margin (LGM) insurance. The LGM insurance will protect swine producers against unexpected declines in the gross margin, or market value in both commercial and private sales-for-slaughter, minus feed costs. This type of risk management has never before been available to Pennsylvania's swine producers, and the aim is to assist producers in remaining viable through difficult economic times.

Under LGM insurance, producers will receive loss payments when actual margins fall below expected margins. The market and actual values of swine (minus feed costs), using the Chicago Mercantile Exchange futures and actual prices, will determine the expected and actual margin values.

Read the PA Dept. of Agriculture Press Release here.

Access a list of crop insurance agents licensed for this program here.

Written/Posted by Tanya J. Cramoy, Research Assistant

Pennsylvania Department of Agriculture Promulgates New Milk Sanitation Regulations

Effective May 21, 2011, new milk sanitation regulations in Pennsylvania consolidate and revise regulations regarding raw (unprocessed) milk for human consumption.  For the complete article please view the June 2011 Agricultural Law Brief.

Article Authored by Tanya Cramoy, Reserach Assistant

Commonwealth Court Affirms Decision Finding Kennel Operator in Contempt of Settlement Agreement

On January 20, 2011, the Commonwealth Court of Pennsylvania affirmed a trial court’s decision that found a kennel operator in contempt of a Settlement Agreement between the operator and the Pennsylvania Department of Agriculture (“PDA”).  The operator and PDA had previously entered a Settlement Agreement where the operator was to remove the excess of the allowed number of dogs.  The operator did not remove the excess dogs because the operator argued that PDA had to remove the dogs or approve the removal pursuant to the Settlement Agreement.  The court held that the language of the Settle Agreement did not support the operator’s argument and that the Settlement Agreement does not make PDA responsible for removing the excess dogs.  In addition the court found that PDA did not have to approve any removal until the operator arranged for the transfer of the excess dogs to a particular facility.  For the complete court’s opinion please view Commw. v. Fay.

Written by Jay Angle, Research Assistant

Pennsylvania Department of Agriculture Provides Statement of Policy Concerning Dog Law

The Pennsylvania Department of Agriculture (“PDA”) issued a statement of policy (“Policy”) relating to commercial kennel ventilation requirements for areas where puppies are housed in primary enclosures with a dam or foster dam.  The Policy provides directions regarding the calculation of the ventilation requirements.  For more on PDA’s statement of policy please visit The Pennsylvania Bulletin.  

Written by Jay Angle, Research Assistant