SSB 1107 (LSB 1190XC (7) 90)

SENATE FILE _____ 

BY  (PROPOSED COMMITTEE ON STATE GOVERNMENT BILL BY CHAIRPERSON SCHULTZ)

A BILL FOR

An Act relating to raw milk, by providing for the production of raw milk at certain dairies, the manufacture of products using raw milk, and the labeling and distribution of raw milk and manufactured products, and making penalties applicable.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA:

    Section 1.  NEW SECTION.  135.16B  Raw milk —— associated products.
   The department of health and human services may demand that a raw milk producer provide the department with all records of tests to determine the coliform count and standard plate count of dairy animals maintained at the raw milk dairy as required in section 195.6.
    Sec. 2.  Section 137.104, subsection 2, Code 2023, is amended by adding the following new paragraph:
   NEW PARAGRAPH.  e.  Demand that a raw milk producer provide the board with all records of tests to determine the coliform count and standard plate count of dairy animals maintained at the raw milk dairy as required in section 195.6.
    Sec. 3.  NEW SECTION.  137D.2A  Raw milk —— associated products.
   A home food processing establishment shall not advertise for sale, offer for sale, sell or otherwise distribute, or use raw milk, or a manufactured raw milk product or raw milk dairy product, as provided in chapter 195.
    Sec. 4.  Section 137F.1, subsection 9, Code 2023, is amended by adding the following new paragraph:
   NEW PARAGRAPH.  o.  (1)  The premises of a raw milk dairy where raw milk is produced, processed, labeled, marketed, or distributed by a raw milk producer in compliance with chapter 195.
   (2)  The premises of a raw milk dairy where a raw milk product or a raw milk dairy product is manufactured, labeled, marketed, or distributed by a raw milk producer in compliance with chapter 195.
    Sec. 5.  Section 137F.1, subsection 10, Code 2023, is amended by adding the following new paragraph:
   NEW PARAGRAPH.  d.  (1)  The premises of a raw milk dairy where raw milk is produced, processed, labeled, marketed, or distributed by a raw milk producer in compliance with chapter 195.
   (2)  A premises of a raw milk dairy where a raw milk product or raw milk dairy product is manufactured, labeled, marketed, or distributed by a raw milk producer in compliance with chapter 195.
    Sec. 6.  NEW SECTION.  137F.8B  Raw milk —— associated products.
   A food establishment or farmers market shall not advertise for sale, offer for sale, sell or otherwise distribute, or use raw milk, or a manufactured raw milk product or a raw milk dairy product, regardless of whether the food establishment or farmers market is regulated by the department under this chapter or another chapter, another state agency, or a municipality.
    Sec. 7.  Section 159.6, subsection 6, Code 2023, is amended to read as follows:
   6.  Regulation and inspection of foods, drugs, and other articles, as provided in Title V, subtitle 4, but. However, chapter 205 of that subtitle shall be enforced as provided in that chapter.  Except as expressly authorized in subtitle 4, the department shall not regulate any of the following:
   a.  The production, processing, labeling, marketing, or distribution of raw milk by a raw milk producer in compliance with chapter 195.
   b.  The manufacture, labeling, marketing, or distribution of a raw milk product or raw milk dairy product by a raw milk producer in compliance with chapter 195.
    Sec. 8.  Section 190.2, Code 2023, is amended by adding the following new subsection:
   NEW SUBSECTION.  3.  This section does not apply to any of the following:
   a.  The manufacture, labeling, marketing, or distribution of raw milk by a raw milk producer in compliance with chapter 195.
   b.  The manufacture, labeling, marketing, or distribution of a raw milk product or raw milk dairy product by a raw milk producer in compliance with chapter 195.
    Sec. 9.  Section 191.2, subsection 5, unnumbered paragraph 1, Code 2023, is amended to read as follows:
   All bottles, containers, and packages Bottles, containers, and packages. Except as provided in subsection 5A, a container or package enclosing milk or a milk products product shall be conspicuously labeled or marked with all of the following:
    Sec. 10.  Section 191.2, Code 2023, is amended by adding the following new subsection:
   NEW SUBSECTION.  5A.  Raw milk and associated products.  A container holding raw milk, or a manufactured raw milk product or a raw milk dairy product, distributed by a raw milk producer shall be labeled as required in section 195.8.
    Sec. 11.  Section 192.103, subsections 1 and 2, Code 2023, are amended to read as follows:
   1.  Only grade “A” pasteurized milk and milk products shall be sold to the final consumer, or to restaurants, soda fountains, grocery stores, or similar establishments. However, in except as follows: 
   a.  In an emergency, the sale of pasteurized milk and milk products which that have not been graded, or the grade of which is unknown, may be authorized by the secretary, in which case, such products shall be labeled “ungraded”.
   b.  A raw milk producer may distribute raw milk, or a manufactured raw milk product or raw milk dairy product, in compliance with chapter 195.
   2.  No A person shall not within the state produce, provide, sell, offer, or expose for sale, or have in possession with intent to sell, any milk or milk product which is adulterated or misbranded. However, in an emergency, the sale of pasteurized milk and milk products which have not been graded, or the grade of which is unknown, may be authorized by the secretary, in which case such products shall be labeled “ungraded”.
    Sec. 12.  NEW SECTION.  194.22  Raw milk dairies —— exception.
   This chapter does not apply to any of the following:
   1.  The production, processing, marketing, and distribution of raw milk, if the raw milk is produced by a raw milk producer at a raw milk dairy as provided in chapter 195.
   2.  The manufacture, marketing, and distribution of a raw milk product or raw milk dairy product, if the raw milk product or raw milk dairy product is manufactured by a raw milk producer at a raw milk dairy as provided in chapter 195.
    Sec. 13.  NEW SECTION.  195.1  Definitions.
   As used in this chapter, unless the context otherwise requires:
   1.  “Dairy animal” means a cow, goat, or sheep that is actively producing milk.
   2.  “Department” means the department of agriculture and land stewardship.
   3.  “Distribute” means to transfer an item or offer to transfer an item to another person, either free of charge or by sale or exchange.
   4.  “Milk” means the lacteal secretion of a dairy animal.
   5.  “Raw milk” means milk that is not pasteurized or graded as otherwise required in chapters 190, 192, and 194.
   6.  “Raw milk dairy” means an operation where not more than ten dairy animals are maintained to actively produce milk at any one time.
   7.  “Raw milk dairy product” means a product, other than a milk product, manufactured using milk or a milk product as the primary ingredient, and that includes any quantity of raw milk.
   8.  “Raw milk producer” means a milk producer who owns or operates a raw milk dairy.
   9.  “Raw milk product” means a product manufactured using milk as its exclusive ingredient as described in 21 C.F.R. §1240.3 and that includes any quantity of raw milk.
    Sec. 14.  NEW SECTION.  195.2  Conflicts with other law.
   This chapter shall be construed to supplement applicable provisions in chapters 190, 191, 192, and 194. If there is a conflict between a provision in this chapter and one of those other chapters, the provision in this chapter shall prevail but only to the extent of interpreting the provision in this chapter.
    Sec. 15.  NEW SECTION.  195.3  Exclusions.
   This chapter does not apply to a bulk milk tanker, milk grader, milk hauler, milk plant, milk processing plant, dairy plant, transfer station, or receiving station.
    Sec. 16.  NEW SECTION.  195.4  Rulemaking prohibited.
   The department shall not adopt rules to administer or enforce this chapter.
    Sec. 17.  NEW SECTION.  195.5  General —— election by raw milk producer.
   A raw milk producer may elect to process, market, or distribute raw milk produced at the raw milk producer’s raw milk dairy in compliance with this chapter. A raw milk producer may also elect to use the raw milk to manufacture, market, or distribute a raw milk product or raw milk dairy product at the raw milk producer’s raw milk dairy in compliance with this chapter.
    Sec. 18.  NEW SECTION.  195.6  Production and processing of raw milk.
   If a raw milk producer makes an election described in section 195.5 to produce and process raw milk, all of the following apply:
   1.  The raw milk must be produced exclusively from dairy animals maintained at the raw milk dairy.
   2.  The raw milk must not be pasteurized or graded.
   3.  The raw milk must be processed in a manner that ensures the health and safety of persons consuming the raw milk produced at the raw milk dairy, or consuming raw milk products or raw dairy products manufactured at the raw milk dairy. The raw milk producer must do all of the following:
   a.  Each month, test each dairy animal maintained at the raw milk producer’s raw milk dairy to determine the dairy animal’s coliform count and standard plate count. The raw milk producer shall retain a record of each test at the raw milk dairy for at least three years.
   b.  Each twelve-month period, employ a licensed veterinarian to examine each dairy animal maintained at the raw milk producer’s raw milk dairy to determine the dairy animal’s health status. The examination must at least include a blood test for common diseases afflicting the type of dairy animal being examined.
    Sec. 19.  NEW SECTION.  195.7  Distribution of raw milk or associated products.
   1.  A raw milk producer shall only take an order for the distribution of raw milk at the raw milk producer’s raw milk dairy where the raw milk is produced. The raw milk producer shall only distribute the raw milk to an individual placing the order. 
   a.  The raw milk producer shall post the summary of the test to determine the coliform count and standard plate count of the dairy animals retained at the raw milk dairy as provided in section 195.6. The summary shall be posted at the raw milk dairy’s distribution point for the raw milk. The individual being distributed the raw milk may examine the records for the three-year period that the records are required to be retained by the raw milk producer under section 195.6.
   b.  If the raw milk producer distributes raw milk in a container, the container shall be labeled as provided in section 195.8.
   c.  The raw milk producer shall distribute the raw milk directly to the individual at the raw milk dairy or to a location specified by the individual. However, a person shall not deliver the raw milk to a place of business where food or food items are distributed on a retail basis, including but not limited to a home food processing establishment regulated under chapter 137D or a food establishment or farmers market regulated under chapter 137F. The raw milk shall only be used for consumption by the individual, members of the individual’s household, and the individual’s nonpaying guests or nonpaying employees.
   d.  A person shall not resell raw milk.
   2.  A raw milk producer shall only take an order for the distribution of a raw milk product or raw milk dairy product at the raw milk producer’s raw milk dairy where the raw milk product or raw milk dairy product is manufactured. The raw milk producer shall only distribute the raw milk product or raw milk dairy product to an individual placing the order. The raw milk producer may distribute the raw milk product or raw milk dairy product to the individual without charge or on a retail basis.
   a.  The raw milk producer shall post the summary of the most recent test to determine the coliform count and standard plate count of dairy animals as retained at the raw milk dairy as provided in section 195.6. The summary shall be posted at the raw milk dairy’s distribution point for the raw milk products or raw milk dairy products. The individual being distributed the raw milk product or raw milk dairy product may examine the records for the three-year period that the records are required to be retained by the raw milk producer under section 195.6.
   b.  If the raw milk producer distributes a raw milk product or raw milk dairy product in a container, the container shall be labeled as provided in section 195.8.
   c.  The raw milk producer shall distribute the raw milk product or raw milk dairy product directly to the individual at the raw milk dairy or to a location specified by the individual. However, a person shall not deliver the raw milk product or raw milk dairy product to a place of business where food or a food item is distributed on a retail basis, including but not limited to a home food processing establishment regulated under chapter 137D or a food establishment or farmers market regulated under chapter 137F. The raw milk product or raw milk dairy product shall only be used for consumption by the individual, members of the individual’s household, or the individual’s nonpaying guests or nonpaying employees.
   d.  A person shall not resell the raw milk product or raw milk dairy product.
    Sec. 20.  NEW SECTION.  195.8  Labeling containers holding raw milk or associated products.
   1.  A raw milk producer who distributes raw milk, or a manufactured raw milk product or raw milk dairy product, shall label the container holding the raw milk, or the manufactured raw milk product or raw milk dairy product. The label shall be permanently affixed to the container. The words on the label shall be printed using upper case letters in at least twelve point boldface type. If the container includes a main informational or advertising panel, the label shall be part of the panel.
   2.  a.  For a container holding raw milk, the label shall state the following:
Notice to Consumers
This container holds raw milk that is not subject to state inspection or other public health regulations that require pasteurization and grading.

   b.  For a container holding a raw milk product or raw milk dairy product, the label shall state the following:
Notice to Consumers
This container holds a raw milk product or raw milk dairy product that is not subject to state inspection or other public health regulations that require pasteurization and grading.
    Sec. 21.  NEW SECTION.  195.9  Enforcement actions.
   The department of health and human services acting under chapter 135 or a local board of health acting under chapter 137 may demand that the raw milk producer provide it with all records of tests to determine the coliform count and standard plate count of dairy animals maintained at the raw milk dairy as required in section 195.6. The demand shall be based on an affidavit signed by a licensed physician certifying that in the physician’s opinion an individual contracted an illness as a direct result of consuming raw milk produced at a raw milk dairy, or consuming a raw milk product or a raw milk dairy product manufactured at a raw milk dairy.
EXPLANATION
The inclusion of this explanation does not constitute agreement with
the explanation’s substance by the members of the general assembly.
   BACKGROUND. This bill amends provisions regulating dairies where raw milk is produced and processed for human consumption (fluid milk), or produced and processed to be manufactured as a food item (a milk product or dairy product) at a processing or manufacturing facility (milk plant or dairy plant). Generally, the department of inspections and appeals (DIA), or a local authority under contract with DIA, provides for the licensing and inspection of both food processing plants and food establishments such as grocery stores and restaurants. The production and processing of milk, and the processing and manufacture of milk products and dairy products, are administered and enforced by the department of agriculture and land stewardship (DALS).
   FEDERAL LAW. Generally, states are provided responsibility for enacting health and sanitation standards for their dairy industry subject to oversight by the federal government. DALS’ regulations are based on voluntary standards published by the United States food and drug administration (FDA), and specifically the “Grade ‘A’ Pasteurized Milk Ordinance” commonly referred to as the PMO (Code section 192.102). The PMO provides standards for the production, processing, distribution, transportation, handling, sampling, examination, grading, labeling, and sale of grade “A” pasteurized milk and grade “A” milk products. In administering the PMO, DALS conducts inspections of dairy herds, dairy farms, milk plants, milk receiving stations, and milk transfer stations. DALS issues licenses or permits to milk producers, milk haulers, and milk transfer stations subject to suspension or revocation (21 IAC 68.12). FDA also regulates the labeling of milk and dairy products (21 C.F.R. pt. 131). The United States, acting through FDA, prohibits the delivery of unpasteurized milk, or milk products manufactured using unpasteurized milk, into interstate commerce (21 C.F.R. pt. 1240). Voluntary standards governing the grading of milk are established by the United States department of agriculture (USDA) (7 C.F.R. pt. 58, adopted by DALS pursuant to Code section 190.2; 21 IAC 71.1). Grade “A” milk is the standard used for fluid milk production. Grade “B” milk is subject to less restrictive standards allowing it to be used in manufacturing (Code chapter 194).
   DALS GENERAL AUTHORITY. Under Code chapter 189, DALS regulates adulterated articles and the labeling of those articles and may report violations to the appropriate county attorney (Code section 189.25). This includes inspections of locations (Code section 189.4). A person is prohibited from manufacturing, selling, or delivering an adulterated article (Code section 189.15). DALS may act to enjoin a person from violating provisions prohibiting the marketing of adulterated food (Code section 190.15), including adulterated milk, and adulterated milk products and dairy products (Code sections 190.4 and 190.5). DALS may confiscate an adulterated or improperly labeled article (Code section 189.17). DALS is granted authority to petition a district court to restrain a person who violates a statute or rule regulating milk production, processing, manufacture, labeling, and sales (Code sections 190.15, 191.10, and 192.146).
   BILL’S PROVISIONS —— TERMINOLOGY. The bill uses a number of key terms, including “raw milk” meaning milk that is not graded or pasteurized, “raw milk dairy” which includes a dairy farm where dairy animals (milk-producing cows, goats, or sheep) are maintained and where a “raw milk producer” owning or operating the dairy farm may store and process the raw milk for distribution as fluid milk, or may manufacture the raw milk into “raw milk products” or “raw milk dairy products” for distribution (new Code section 195.1). Code chapters refer to both terms “milk product” and “dairy product” as does federal law. Generally, FDA defines “milk product” to include cheese, butter, ice cream, and yogurt (21 C.F.R. §1240.3) and USDA defines a “dairy product” similarly (7 C.F.R. §58.101). The bill defines a “raw milk product” as a product using milk as an exclusive ingredient, if any quantity of the milk is raw milk, and a “raw dairy product” as a product using milk as the primary ingredient, if any quantity of the milk is raw milk (new Code section 195.1). The term “distribute” refers to both the transfer of raw milk or a manufactured raw milk product or raw milk dairy product to final consumers with or without charge (new Code section 195.7).
   BILL’S PROVISIONS —— EXCLUSION FROM DIA REGULATIONS. The bill prohibits a home food processing establishment regulated by DIA from advertising for sale, offering for sale, selling, or otherwise distributing raw milk, or a manufactured raw milk product or raw milk dairy product (new Code section 137D.2A). The premises of a raw milk dairy is not a food establishment or a food processing plant regulated by DIA (Code section 137F.1). Similarly, the bill prohibits a food establishment or farmers market from advertising for sale, offering for sale, selling, or otherwise distributing raw milk, or a manufactured raw milk product or a raw milk dairy product (new Code section 137F.8B).
   BILL’S PROVISIONS —— ADMINISTRATION AND ENFORCEMENT. The bill’s provisions are codified as new Code chapter 195. The new chapter is construed to supplement applicable provisions of the other Code chapters regulating the state’s dairy industry (Code chapters 190, 191, 192, and 194). DALS is prohibited from adopting rules to administer or enforce provisions in the new Code chapter.
   BILL’S PROVISIONS —— REQUIREMENTS FOR PROCESSING, MARKETING, AND DISTRIBUTING RAW MILK OR MANUFACTURING, MARKETING, AND DISTRIBUTING A RAW MILK PRODUCT OR RAW MILK DAIRY PRODUCT. A raw milk producer must not own or operate a raw milk dairy having more than 10 dairy animals actively producing milk (new Code section 195.1). The milk cannot be pasteurized or graded. On a monthly basis, the raw milk producer must test each dairy animal to determine its coliform and standard plate counts. On a yearly basis, the raw milk producer must employ a licensed veterinarian to examine the health status of each dairy animal, including by administering a blood test (new Code section 195.6).
   In distributing raw milk, or a manufactured raw milk product or raw dairy product, a raw milk producer can only take an order by an individual (new Code section 195.7). The order must be made at the raw milk dairy. The individual may examine the health records of the raw milk dairy’s dairy animals and the records must be retained for three years. The raw milk producer may deliver the raw milk or the manufactured raw milk product or raw milk dairy product to the individual at the raw milk dairy or at a location specified by the individual. However, the raw milk producer cannot deliver the raw milk or the manufactured raw milk product or raw milk dairy product to a location where food or food items are sold on a retail basis (e.g., a location regulated by DIA). The raw milk or the manufactured raw milk product or raw milk dairy product can only be used for consumption by the individual making the order, a member of the individual’s household, or the individual’s nonpaying guests or nonpaying employee. A person cannot resell the raw milk or the manufactured raw milk product or raw milk dairy product. If the raw milk, or the manufactured raw milk product or raw milk dairy product is distributed in a container, the container must be labeled with a notice to consumers stating it contains raw milk or that raw milk has been used as an ingredient in manufacturing the raw milk product or raw dairy product, and the raw milk, or the raw milk product or raw dairy product, has not been subject to public health regulations (new Code section 195.8).
   BILL’S PROVISIONS —— RECORDS. The Iowa department of health and human services or a local board of health may demand that a raw milk producer provide it with all records of tests to determine the coliform count and standard plate count of dairy animals maintained at a raw milk dairy.
   APPLICABLE PENALTIES. A person who violates the bill’s provisions is guilty of a simple misdemeanor (Code section 189.21). A person who violates a provision regulated by the Iowa department of health and human services is guilty of a simple misdemeanor (Code section 135.38). A person who violates a provision regulated by a local board of health is also guilty of a simple misdemeanor and subject to a civil penalty not to exceed $750. A simple misdemeanor is punishable by confinement for no more than 30 days and a fine of at least $105 but not more than $855.