Header graphic for print
Marler Blog Providing Commentary on Food Poisoning Outbreaks & Litigation

Risky Business – Why would a retailer sell Raw Milk?

Raw milk, for its proponents, brings images of grandpa’s idyllic farm – Bessie being milked as the cats meow around her legs. For the FDA and state and local health officials, raw milk brings up a different image: people sickened – mainly children – sickened by E. coli O157:H7, Campylobacter, Listeria or Salmonella.

For me personally, raw milk generates mixed images. Growing up on a farm, milking cows and consuming raw milk in the 1970s is one image. Thirty plus years later, however, my mind is drawn to images of children sickened by drinking raw milk. These children were sickened by bugs that we did not know existed in the 1970s. Each and every one of the parents who bought or served the raw milk thought that they were doing something good for their child. They believed that the “organic,” “natural,” “fresh,” and “raw,” nature of raw milk meant that it had properties that would be good for their child, not bring them to death’s door.

Presently, raw milk cannot be sold across state lines for human consumption. However, there have been multiple instances where raw milk producers have violated the law directly or have sold the milk as animal food knowing that humans were likely consuming it.

In-state raw milk sales are limited to about a dozen states, with most states limiting raw milk sales to direct farmer to consumer transactions. Many of the states that allow these direct sales are quick to point out the exceedingly low price of pasteurized milk, touting the high price a farmer can get for raw milk as a method of “helping the small, family farmer” – a laudable goal I might add. This goal, however, is not without risks to the consumer.

Over the past several years, I have represented several families of children whose parents purchased raw milk directly from the farmer. The children came away with E. coli O157:H7 bacteria-mediated Hemolytic Uremic Syndrome, months of hospitalization, hundreds of thousands of dollars in medical expenses, and millions of dollars in risk of future complications – including end stage renal disease and the need for multiple kidney transplants.

Some states allow “cow-shares” or, as I call them, “cow condos.” This is where non-farmers “buy” a portion of the cow (and its milk) and attempt to get around any law banning the sale of raw milk. Again, states rationalize allowing this ownership fiction as another way of supporting the cost of maintaining the “small, family farmer” – also, a laudable goal.

I currently represent a woman in California who “purchased” raw milk as part of a “cow-share” – albeit, an illegal one. The milk she consumed was contaminated with Campylobacter and she subsequently developed Guillain-Barre Syndrome. She was hospitalized for months, much of the while dependent on a ventilator. She is now, in essence, a quadriplegic. Her past medical bills are nearly one million dollars. Her cost of future care is in the tens of millions of dollars.

There are also a handful of states that allow retail (grocery store) sales of raw milk and raw milk products. This is capitalism at its finest. Raw milk in retail sells for about eighteen dollars per gallon. Organic pasteurized milk sells for less than half of that. Farmers want to sell their raw milk to a larger market as efficiently as possible and there is demand from consumers who would rather shop at their favorite market than drive to the farm or own a “condo cow.” In short, selling raw milk in a retail setting is the raw milk farmer’s Holy Grail. Even retailers love it, seeing as how it creates a consumer draw and has a nice mark-up.

I have represented (and still represent) victims of E. coli O157:H7 cases linked to raw milk purchased (some illegally) in retail settings. In Missouri, one consumer purchased raw goat milk that was being sold illegally – the consumer did not know that the sale was illegal. This sale led to the consumer’s child suffering severe Hemolytic Uremic Syndrome, being hospitalized for a month, and spending weeks on dialysis to save his life. He now faces a lifetime of risks that may likely cost millions of dollars.

In California, E. coli O157:H7-tainted raw milk sold in small “health food” retail outlets sickened several children. Two children developed severe Hemolytic Uremic Syndrome. Both spent over a month in the hospital, both on dialysis and one on a ventilator. Medical bills were nearly one million dollars. One child may require a kidney transplant – the other surely ill. The future costs to these children may well be several million dollars. 

Now for the risky part. Most, if not all, raw milk farmers have limited insurance and very few assets that are not owned solely by the bank. If they face litigation for poisoning a customer, bankruptcy is always an option and what insurance is available is paid.

But, what about the risk to the retailer? True, in selling raw milk they are “only” selling a product that has a history of sickening consumers – they did not manufacture it. So, is a retailer liable for paying millions of dollars to its customers if they are sickened by raw milk? The short answer is – Hell yes!

The reality in most states is that the entire “chain of distribution,” whether you are a manufacturer (a farm is) or retailer, is responsible if a product (raw milk is a product) causes harm. That means the farmer, the shipper, and the retailer will be responsible (morally and legally) to the consumer for all damages caused by the product. It is true that, depending on the state, a court may apportion damages between various members of the “chain.” However, and this is key, if the original manufacturer (the farmer in this instance) is bankrupt or has limited assets (including insurance), the retailer may be left “holding the bag” – partially empty – that the retailer will need to fill.

By way of example – assume that raw milk sold at a retailer sickens five people. Two develop Hemolytic Uremic Syndrome. Assume further that the farm has only one million dollars in insurance and limited assets. Also assume that the total value of all cases (settlement or verdict) is ten million dollars. Guess who pays the nine?

So, why would a retailer sell raw milk? Perhaps eighteen dollars a gallon?

  • Melanie

    What about the liability of the other “cow share” owners? It makes sense to me if they are jointly responsible for things like vet bills then they are assuming some liability risk.
    Is there any degree of personal responsibility applicable? e.g. if the customer knew they were getting a product that is not legal to sell, a reasonable person might say they shouldn’t be buying it.
    Do the safety inspectors have any liability? e.g. http://www.hedgebrook.com/cowboarding.asp says the milk is safe because it is regularly tested by the state and is USDA inspected.
    Thank you for the information.

  • Catherine

    I do drink raw milk, but I do not buy it from the grocery store. When I tried, in the past, it had already soured because they are handling it the same way as they do the conventional, pasteurized milk. It needs to be in a separate, closed case, at the very least. I do agree with you that there is a certain amount of profit margin in the case of Whole Foods… they do see the $$.
    Melanie, the problem with personal responsibility is that raw milk has become one of those things that is supposed to heal all illnesses, etc, so it does become one extreme or the other. There was a good article featured on Bitten, in the New York Times, that talked about the subject in a reasonable manner. (a little over a year ago).

  • Marymary

    Keep in mind, whether or not you drink raw milk: foodborne illness organisms and spoilage organisms are not necessarily one and the same. Raw milk could contain campylobacter, listeria, one of the many variations of E. coli, etc. and still look, smell, and taste perfectly fresh and fine. Furthermore, the dairy could appear to be clean, but may harbor all sorts of nasty bugs that are not visible to the naked eye.
    If WholeFoods is selling raw milk, they are taking a huge risk of liability if customers become ill. Despite all the news about fooodborne illness outbreaks, whether associated with raw milk or other foods, retail food operators tend to think, “it won’t happen to me.”

  • Marymary

    Regarding liability on the part of inspectors: The safety claims Melanie linked to are made by the milk producer, not by the inspectors. The inspectors do not produce or distribute the milk or any other food products produced by facilities they inspect. By inspecting a food production facility, they are not making any claims that the facility is 100% in compliance at all times nor do they claim that the food produced therein is 100% safe at all times. An inspector’s job is to write up what s/he sees on the day of inspection. Inspections happen only every once in a while, not every day. It is up to the manufacturer/producer to follow safe handling practices on a daily basis to ensure that their food is safe to consume. Inspections are not typically pass/fail, either, although that is a common misconception among both the public and food manufacturers. If an inspector saw critical violations and did not report them, or if the inspector accepted bribes to make a favorable inspection report, that would be different, and civil or criminal liability could result.
    In my opinion, despite what its proponents claim, it is darn near impossible to ensure that raw milk is safe to drink, that’s why I don’t touch the stuff.
    As for personal responsibility, I think Mr. Marler can speak to that more intelligently and articulately than I can, because I don’t practice, BUT: legal liability regarding product liabiity issues typically rests with the manufacturer or distributor of the product in question. I’m way oversimplifying things, but under the doctrine of strict liability, if a defective product is put on the market and the consumer uses it and is harmed by such use, then the manufacturer and/or distributor is liable, period. The consumer is not liable if a defective product is given to him or her to use, or in the case of food, consume. The defective product should not be sold or distributed in the first place. Strict liability often applies in foodborne illness cases , and it should, because there is almost no way for an ordinary consumer to know whether food that looks, smells, and tastes good is unsafe to eat.

  • Marymary

    Not that anyone’s reading this, but I should clarify: I should not have used the term “liable” when referring to the consumer. What I should have said is that under strict liability the consumer’s possible contributory negligence is not considered.

  • Misha

    The answer to Bill’s question is simple: people will pay a lot of money for illegal substances to which they attach the sensation of an altered state.
    If people are scared of milk pasteurization–raising its temperature to 161F for 20 seconds–then they’d just about die of fright at my sauna. 170 to 190 F, half an hour at a time. Sometimes hotter. Sometimes longer.
    But then I suppose I am neither good, healthy, organic, natural, fresh, nor raw.

  • Charles

    I am curious, does Marler answer any of these comments? Misha, I am not scared of pasterization I just don’t choose to drink pasteurized milk because I believe I observe how much better raw milk is because of the enzymes and other life that hasnt’ been killed off by pasteurizing. As far as Saunas, those are very healthy and I love to indulge in them.
    As far as you being good or healthy, I couldn’t say, but you are definitely natural, fresh (from your comments) and always raw (observe what happens to a body when the soul departs).
    So my question is, are these E. coli O157:H7, Campylobacter, Listeria or Salmonella visible under a microscope? So could I just inspect the milk if I was concerned?
    And I believe that in a free country we should be able to choose to eat products that haven’t been overprocessed or even processed. As far as raw milk I have drunk gallons of it and so far have not had any of the contamination problems Marler makes his living off of.
    I would like to know more info as to why these milks were contaminated, and did these same symptoms occur in people before Louis graced us with his brilliance.
    Thanks and Marler please chime in as I did learn something from your post.

  • Anna

    Raw milk is BY FAR superior to pasturized milk in nutritional content. I don’t know why anyone would settle for such an inferior product as paturied milk!
    “The Food and Drug Administration (FDA) and the Center for Disease Control recently issued a public warning about the dangers of raw milk. Siding with corporate dairy and attempting to re-inoculate the public with fear (especially since consumer-interest in raw milk has risen 40% in recent decades), the agencies posted a ‚Äúreminder‚Äù that between 1998 and 2005, raw milk was implicated in 45 food-borne illness outbreaks, 1007 individual cases, 104 hospitalizations and 2 deaths.
    When raw milk champions Sally Fallon and Thomas Bartlett went looking for the data that supports these claims, they couldn’t find it. The reference that the FDA and CDC cited, the Morbidity and Mortality Weekly Report, provided no such information. No supporting data could be found in any other FDA or CDC document and demands for clarification have not been addressed.
    Bartlett asked then-director of the FDA’s dairy safety division, John Sheehan, about evidence linking raw milk to disease outbreaks. Sheehan admitted that in the past 20 years, he didn’t know of a single one.
    Sally Fallon, author of Nourishing Traditions and president of the Weston A. Price Foundation, admits that there have been cases of illness due to raw milk but points out the number of food-borne illness outbreaks due to pasteurized milk is much larger.
    There have been 239,884 documented outbreaks due to pasteurized milk in the past few decades and 620 deaths. The nation’s largest recorded outbreak of Salmonella, which occurred from June of 1984 through April of 1985, killed 18 people and sickened over 200,000.
    Fallon compiled a list of government-documented outbreaks of food-borne illnesses for the Deputy Director of Maryland’s Office of Food Protection and Consumer Health Services.
    1945: 1,492 cases of food-borne illness due to pasteurized milk in the US
    1976: 36 children infected with Yersinia enterocolitica from pasteurized chocolate milk
    1978: 68 cases of illness
    1982: 17,000 cases of illness
    1983: 49 cases of illness
    1985: 16,284 cases of S. typhimurium
    1985: 197,000 cases of Salmonella in California
    1985: 1,500 cases of Salmonella in Illinois
    1987: 16,000 cases of Salmonella in Georgia
    1993: 28 cases of Salmonella
    1994: 105 cases of E. coli and Listeria
    1995: 10 children infected with Yersina enterocolitica
    1996: 48 cases of Campylobactor and Salmonella
    1997: 28 cases of Salmonella
    A look at just some of the more recent figures reveals:
    2000: 98 cases of S. typhimurim
    2004: 100 cases of Salmonella in California and outbreaks in Pennsylvania and New Jersey
    2005: 200 cases of C. jejuni
    2006: 1,592 cases of C. jejuni
    2007: 5 cases of L. monocytogenes
    Again, these outbreaks have all been traced back to pasteurized milk. The larger a farm-factory is, the more room there is for error after the milk has been pasteurized.
    Fallon says, “The FDA and CDC definitely have a double standard when it comes to raw milk.”
    She claims that the agencies don’t report food-borne illness outbreaks due to pasteurized milk in the Morbidity and Mortality Weekly Report. Fallon found her figures from poring over other publications like the Journal of the American Medical Association.
    Quick to link raw milk to outbreaks, the agencies, Fallon claims, then ignore “subsequent tests showing the milk to be clean.”
    Her research found that:
    •a 1983 outbreak attributed to raw milk later found that none of the cultures revealed any of the Campylobacter bacteria
    •a listeriosis outbreak that occurred over the years 2000 and 2001 in North Carolina was blamed on cheese made from raw milk, cheese that later tested negative for the bacteria
    •a 2006 E. coli outbreak that was associated with raw milk was later found to be due to spinach
    •a 2007 report of Salmonella linked to a raw milk dairy in Pennsylvania revealed later that none of the milk contained any of the pathogen
    Even though more outbreaks have occurred due to pasteurized milk rather than raw as of late, neither the FDA nor the CDC has ever issued a public warning about it.
    Factory-farmed cattle have 300 times more pathogens in their digestive tract than grass-fed cows on small dairy farms.
    Pasteurization destroys good bacteria as well as bad. The probiotics that occur naturally in milk are destroyed by heat although it is their presence that can naturally kill many virulent pathogens. Probiotics in raw milk prevent the multiplication of these bacteria, which thrive in milk after pasteurization. This is why pasteurized milk becomes rancid after a week while raw milk simply sours.
    Due to the widespread use of antibiotics in industrial farms, these pathogens are becoming resistant to present medications.
    In 2003 the USDA reported that pasteurized milk causes 29 times more cases of Listeria than raw milk.
    Robert Tauxe, Chief of the CDC’s Foodborne and Diarrheal Branch, says that globalization of the food supply, antibiotic use, corn and soy feed and crowded conditions in industrial agriculture has given rise to new food-borne pathogens and, he warns, many more are on the way.
    A 2004 study by the Center for Science in the Public Interest (CSPI) found that dairy products, pasteurized or raw, make up less than 1% of all food-borne illness outbreaks. Produce is now responsible for 38% of outbreaks, poultry 20% and beef 16%. Eggs and seafood constitute 13% and 12% respectively.
    Dairy farms that produce raw milk are normally smaller, cleaner and more accountable to their customers for the quality of their animals, feed, practices and milk.
    There really isn‚Äôt evidence any longer that pasteurized milk is safer than raw: it‚Äôs more likely that it is the other way around.”
    From: http://blog.joshaxe.com/2009/09/22/raw-milk-myths-are-we-prisoners-of-pasteurization-part-1-of-3/

  • Squishy

    Mr. Lawyer, why don’t you focus your time and energy about real problems in our food supply- e.coli in beef, spinach, jalapenos, toxins in foods?
    It’s hard to take you at your word. After all, you are someone who makes money off of someone’s misery. How big is your cut when it’s all said and done?…. exactly.

  • Come on people, we all know that the lil man is being squeezed out by Big Man Government..
    They want to control everything!!
    And money talks, we need our farms and daries back and STOP spraying our food with chemicals we don’t need..
    That’s what keeps the lawyer’s and Dr. in business..When we are sick!!!!
    Whole Raw Foods is what are body needs…
    Read the Bible…..
    The truth is, The government wants us sick….
    Why elese would they want to take all the land and allow empty houses/malls/commercial buildings trash our beautiful lands..
    Cause construction keeps the Politicians rich…
    Well my vote is to Eat Raw and Stay Healthy..
    Return our farmers and daries back to lands to produce healthy foods for our survival..

  • darryl

    Raw milk is good. Your a dipshit. Stupid lawyer.

  • True Health

    First of all, do you have and proof that these raw milks were not purposely tampered with? (I’ve seen several personal accounts of farmers’ experiences with “Officials” visiting prior to an “outbreak”- with suspicions of foul play)
    Second, how come vaccine makers get away with providing vaccines without being held liable for all the damage they cause (more than any raw milk ever has!).