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Marler Blog Providing Commentary on Food Poisoning Outbreaks & Litigation

Wisconsin Raw Milk Bill – Senate Bill 434 – Should Fail

Although I agree that consumers should be able to buy raw milk from a well-regulated, inspected farm – "know your farmer" – like what is done in California and Washington presently.  However, I believe that the law needs a warning that is much more stringent than the law now envisions.  I think this is what should be posted on the farm and the raw milk container:

"WARNING: This product has not been pasteurized and may contain harmful bacteria (not limited to E. coli O157:H7, Campylobacter, Listeria and Salmonella). Pregnant women, infants, children, the elderly and persons with lowered resistance to disease (immune compromised) have the highest risk of harm, which includes Diarrhea, Vomiting, Fever, Dehydration, Hemolytic Uremic Syndrome, Guillain-Barre Syndrome, Reactive Arthritis, Irritable Bowel Syndrome, Miscarriage, or Death, from use of this product."

Finally, why should raw milk be treated differently than pasteurized milk, hamburger or peanut butter?  Why should a raw milk farmer be immune from liability, but a pasteurized dairy be subject to my ability to sue them on behalf of an injured consumer?  If the farmer wants to argue that the consumer is at fault for consuming a product that may well be contaminated, that farmer can presently raise that defense under our civil law.  If food is sold that is contaminated the manufacturer – whether Cargill or Farmer Bob – needs to be responsible to the customer.  Raw milk outbreaks have happened and have caused extensive damages.  Those victims should not be left with thousands or millions of dollars in damages because the product they consumed was raw milk.  This is a bad bill as written.  It should not pass as is.

Here is the full Senate Bill 434:

  • Steve Bemis

    Bill – Considering Wisconsin’s protection of raw milk producers in the pending legislation, I think scale is one central factor that should be considered in the insurance discussion. You have to admit, Cargill and other similar targets of your practice have a vast scale and huge potential impact which should be insured (or, more likely at least in the “retained” layers, self-insured, but their balance sheets can handle it). They ought to be insured, one way or the other.
    Likewise for raw milk in retail. Can’t see/touch/talk to the farmer, so the risk is higher. Besides, Whole Foods will require it – or will be willing/able to self-insure it and demand risk-reducing actions on the farmer’s part. This is as it should be, since WF also has causal risk exposure, e.g. failing to keep the cold chain intact, etc. I know you line ’em all up against the wall and basically force the parties into internal cost-sharing negotiation, so in that context, the retail is on the firing line first.
    Likewise for pasteurized. Other than the small operations (like the one in Mass. which killed 3 a couple of years ago), most pasteurized milk is so commingled, starting in the truck which picks up several farms each day and extending into the processing plant, that no one farmer has any exposure. Many farmers like this. They get their check each week, all the sins get swept into the pasteurizer, and they don’t have to worry. If they can survive the bad times. In other words, pasteurized milk is big milk, primarily big processors (Dean Foods), so it’s retail, it’s regional if not national, and it’s all about big companies and big insurance policies.
    With small direct-sale farmers the story is different. If you force them to get high limits (a la Framingham), they probably won’t be able to do it. You know this, and this is where I think your message of qualified support for raw milk – if it is insured – has tinges of cynicism. If the customer is fully informed, educated, has a cow share or other agreement which waives the risk or at the very least, assumes the risk, there is a one-on-one relationship. As well as the other risk-reducing factors implicit and explicit in the 11GT as we discussed on Gumpert earlier today. I know you don’t want to own a small dairy operation (I probably don’t either, primarily because I can’t feature 24/7/365) as a result of winning a case. But if the customer assumes the risk, which I think is the thrust of the Wisconsin statute, that should be good enough. You know as well as I that the cases will then simply have to be proved (e.g., what is a willful or wanton act or omission) rather than negotiated with the brute force of a strict liability argument and sometimes-questionable forensics and evidence.
    I could talk politics here as well. With universal health care, the risk of raw milk, bungee jumping, alcoholism, driving without seat belts, smoking, eating processed foods, etc. etc. gets spread around the entire society much more evenly. In that case (if you can avoid the bullet of (shudder) tort reform), you’re basically left with punitives and exemplaries, if and where you can get them.
    Finally, a farm producing bad product which makes people sick has a worse problem than you: their reputation and the business, which will rapidly disappear.
    Would you post this for me following your article?
    Thanks.
    Steve.

  • Steve, this is not an argument about insurance, but civil justice. If a farmer or Cargill chooses to go without insurance, I suppose that is a choice they can make. But, why should a raw milk producer in Wisconsin – small or large – be treated differently that a spinach, hamburger or sprout producer – small or large in Wisconsin?
    All defendants in a civil case can and do claim that the victim either mishandled the product or knew the risks of consuming it and therefore should not be compensated or their compensation be reduced by their fault.
    Why should raw milk producers in Wisconsin – small or large – be immune from liability? That is not only unfair to the victims, but to every other business in Wisconsin – small or large.

  • Steve, I am still stunned that you would exempt raw milk producers in Wisconsin from liability. Why does raw milk need to be protected from its consumers, but other products not.
    I know in part, who believe I am being self-serving, but you know, some people hire other lawyers or do it pro se. Do you really think that if these cases happened in Wisconsin, there folks would get nothing?
    http://www.foodpoisonjournal.com/2009/12/articles/food-poisoning-information/before-you-consider-drinking-raw-milk-please-read-this-and-watch-these-videos/

  • aed939

    Bill,
    I support raw milk, but I agree with you that raw milk producers should not get special immunity. They need to amend the bill and take that out. Food safety regulations should be proportional to the length of the supply chain because those regulations act as an imperfect substitute for the consumer’s due dilligence in verifying the producer’s practices. Direct farm-to-consumer (supply chain length=1) sales should have relatively light safety rules because the buyer can check out the farm, but once you get into wholesalers, distributors, and supermarket’s private label brands, the consumer is removed from the possibility of directly asking the producer questions. Then you need more safeguards. Ths highest safeguards and inspections must occur with imported foods products and food ingredients.

  • Steve Bemis

    Bill – my understanding is that the immunity provision has been removed. Do you support the bill now?

  • Sorry, got sidetracked with Cargill today.. Actually, I just spoke to the reporter and told him that ‚Äì although I would not urge the young, old or immune compromised to drink it ‚Äì the Wisconsin bill ‚Äì sales on farm that are inspected and tested ‚Äì I could support ‚Äì I also suggested that they use a warning closer to my model. I think the immunity issue is simply just wrong. The reporter told me (you should give me credit) that the bill has passed, but with amendments that he did not know about.

  • Steve Bemis

    I agree the Senate version as reported out today seems workable with an exception. It is unnecessarily restrictive to require that the individual who will consume the milk be the one to pick it up on the farm. This is ridiculous when applied to families, and it’s not even good environmental stewardship to have it written so that rules can be made to restrict car-pooling and other more efficient means of distribution. I understand and agree with the “no resale” part of the provision, because that is protective from a food safety standpoint, but more rigorous limitation of who actually gets to pick up the milk seems designed simply to make the economic viability and convenience factors combine to sink the boat. The testing, retention of samples, customer lists and other provisions all make sense in the context where, as here, there are sales to the public, where there is not to be a cow-share or other private agreement.

  • Steve, I agree with the who picks it up issue – bad “wordsmithing.” Let me see if I can suggest some language to the Assembly.

  • michael grimm

    There’s a big deference between direct farm sales and sales in supermarkets. Direct farm sales are self regulating. When raw milk is sold in a supermarket, you have no idea where it came from or if it is even raw.
    If you know of a proven case of raw milk making someone sick I would like to hear about it.
    If someone decides to blame a hamburger or peanut butter for making them sick I assume they have to prove negligence. What do you sue the farmer for?