Health Law

Raw Milk Sales - Retailer Knowledge of Risk and Liability

By David Babcock

The comments posted on line following most news stories related to "raw milk" are both voluminous, and fairly predictable.  Raw milk supporters are nothing if not committed and vocal, and it seems they miss few opportunities to have themselves heard.  This recent article, including a quote from Bill Marler, is no different.

The continuing proliferation of information concerning raw milk, though, may well serve to turn up legal pressure on retailers who chose to carry raw milk.   For example, in many states, Washington being one, retailers who do not manufacture a product are not generally held to the strict liability standards applied to the manufacturer.  (R.C.W. 7.72.040).   In such cases though, retailers will be held liable for negligence.   As a general rule, negligence is defined as falling below the standard of care of a reasonable person, or in this case retailer.   Irrespective of which "side" of the fence a retailer stands on the raw milk debate, it gets harder and harder to claim reasonableness in the face of quotes like this:

• Rob Tauxe, a deputy director at the Centers for Disease Control and Prevention:   'unpasteurized milk "was the No. 1 food safety problem in the nation."
• Bill Keene, senior epidemiologist, Oregon Division of Public Health: "If you pass a law that makes it easier to buy raw milk, you certainly will have more instances of illnesses and deaths. That's inevitable. I think after a few dead kids, people will lose their enthusiasm for raw milk.  We know that raw milk is a high-risk product, and that a low-risk alternative (pasteurized milk) was introduced 80 years ago. So if you are trying to thumb your nose at medical science, then good luck to you."
• FDA official John Sheehan:  "Raw milk is inherently dangerous. It should not be consumed by anyone, at any time, for any reason."
• The American Medical Association (AMA): "all milk sold for human consumption should be pasteurized."

Raw milk supporters see these quotes, and many more like them, as evidence of a conspiracy spurred on by big dairy.  Retailers have to recognize though, that a jury is not likely to be so quick to dismiss these mainstream agencies, associations, and officials in this manner.   

The retail price that raw milk will bear on the marketplace is no doubt an incentive to retailers to carry the product.   Before they do so, however, they should think long and hard about their liability for doing so.

Full post as published by Food Poison Blog on March 24, 2010 (boomark / email).