In a rare move, the N.C. Department of Agriculture is supporting legislation to overturn the agency's own regulation requiring all unpasteurized milk sold in the state to be dyed gray. The House overwhelmingly passed the bill last week; the Senate is set to take it up in the next few days.
In September, the N.C. Board of Agriculture voted unanimously to adopt a rule requiring the addition of gray dye to all unpasteurized milk, which under state law can only be sold for animal consumption. The move came as the agency became aware of the increasing number of people buying raw milk for themselves.
Under a compromise brokered between the Agriculture Department, the N.C. Department of Health and Human Services and Rep. Pricey Harrison (D-Guilford), the bill's sponsor, raw milk sold for animal consumption in the state would have to be labeled "Not for human consumption" and carry the disclaimer: "It is not legal to sell raw milk for human consumption in North Carolina."
Under those conditions, both the health and agriculture departments supported overturning the gray dye rule. But the agencies only came to the negotiating table after the House Agriculture Committee overwhelmingly passed the bill to overturn it. The revised legislation then was approved unanimously by the Health Committee, and last week it passed the House 109 to 4. It is expected to pass the Senate, as well.
Successful disapproval bills—legislation to overturn agency regulations—are fairly rare, but it is even more rare for the originating agency itself to turn around and support a legislative revocation of its own rulemaking.
Assistant Agriculture Commissioner David McLeod said his agency feels the deal is "a pretty good compromise" and that the labeling disclaimers are "apparently satisfactory to those producing and selling the raw milk and to the dairy industry."
"The whole reason for our rule in the first place was to make sure people didn't consume this milk," McLeod said.
Deputy Health Director Steve Cline agreed. "They added two qualifiers that made us more comfortable with removing the discoloration from 'pet milk,'" he said, adding: "Now it's really an agriculture issue."
Fresh, unprocessed milk is legally sold for human consumption in a number of states, including South Carolina, and a growing cadre of fans tout its health attributes. An underground market has developed to procure it directly from farmers, many of whom label it "pet milk" to stay within the letter of the law.
The agriculture department came up with the gray dye as a way to thwart that practice. However, the only two dairies licensed in the state to sell raw milk for animal consumption are both certified organic, and there is no black dye approved under the National Organic Standards, meaning the rule could have effectively put both dairies out of business.
Both raw milk dairies serve the significant market for raw milk for animal consumption, including zoos, wildlife rescue organizations and especially farmers caring for orphaned animals.
The regulation likely would have left the underground market for raw milk illicitly sold for human consumption untouched, as the dairy farmers who sell unpasteurized milk directly to the public largely do so under the state's radar anyway. (Many of those farmers question the legality of the regulation requiring that they get a license to sell "pet milk.")
Ruth Ann Foster of Greensboro, who is leading the grassroots movement to overturn the gray dye rule, complimented Harrison for striking a deal with the two departments.
"She was able to reach a compromise and get them on our side," Foster said. The raw milk market, she said, "is the greatest of [the agencies'] concerns but the least of their problems."
"This is a witch hunt, and has always been a witch hunt," Foster added. "This whole food safety network is not keeping our food supply safe" anyway, she said, citing the example of the recent salmonella outbreak in tomatoes. Consumers, she said, are wising up and building direct relationships with farmers.
Legislation to repeal the gray dye rule is separate from another bill before the assembly this session to re-legalize what are known as cow shares: the ability of consumers to pool resources to purchase a cow, share the cost of its care and then share the legal rights to the milk. Cow shares are considered a middle ground between an outright ban on unprocessed milk and legal retail sales. Raw milk is legally sold directly from farms in South Carolina, and cow shares are available in Virginia, but North Carolinians currently must travel out of state to purchase such milk legally. Cow shares were quietly banned in the state in 2004 with a line slipped into unrelated legislation without a hearing.
Harrison plans to shepherd that bill through the House as well, although it is unlikely to make it through the chamber by the end of this session. It passed the Senate last year by a vote of 39-9.