Raw milk sales ‘not in keeping with the spirit’ of the law?

In March 2012 the Board of the Food Standards Agency (FSA) met to review controls over the distribution of raw drinking milk. The fact that there had then been no reported illness associated with raw drinking milk for 10 years (and none since) and no other problem reported made the decision to proceed with the review somewhat contrary to the FSA’s much vaunted reliance on evidence-based risk assessment.

Earlier this month The Grocer reported that the FSA is about to launch the long-awaited consultation on raw milk sales. What has emerged over the months in between is that the FSA clearly holds to the view that the sale of raw milk using a vending machine located in a department store food halland online sales using an overnight courier delivery service is not within the spirit of the legislation. A view it has expressed on a number of occasions.

This appears to be one of the FSA’s main starting points, but does it really hold true?

The position of raw milk in the EU is such that each individual member state may maintain or establish its own national rules prohibiting or restricting the availability of raw milk or raw cream within its territory.1

As regards raw milk and raw cream intended for direct human consumption, it is appropriate to enable each Member State to maintain or establish appropriate health measures to ensure the achievement of the objectives of this Regulation on its territory.2

The stated main objective of both EU and domestic hygiene legislation3which sets out the controls over the distribution of raw drinking milk in England, is the optimisation of public health protection. In so doing, the aim is to eliminate or acceptably control pathogen contamination through risk based and flexible procedures matched to the needs of individual businesses and enforcement.4

The present arrangements are fully explained on Artisan Food Law. In short, the occupier of premises at which milk-producing cows are kept may only sell raw cows' milk intended for direct human consumption:

1. At or from the farm premises where the animals from which the milk has been obtained are maintained; and

2. To the final consumer for consumption other than at those farm premises, a temporary guest or visitor to those farm premises as or as part of a meal or refreshment, or a distributor (a person running a milk round).

It has long been accepted by the FSA that ‘direct from the farm’ includes sales at local farmers’ markets. Furthermore, the Director of Food Safety’s report to the March 2012 meeting of the Board of the FSA made it clear that sales from vending machines on farm premises or at a farmers market are permitted. This leads to the absurd situation in which a milk vending machine is acceptable at a farmer’s market, but not in the food hall of an up-market retail store.

Turning to online sales, these are clearly more directly under the control of the farmer when compared to handing milk over to a third party running a milk round. What’s more overnight courier delivery is a more sophisticated and quality assured means of getting raw milk to the consumer combining purpose designed packaging with a guaranteed short delivery time. The fact that the reach of such deliveries is far greater than before is simply due to the efficient distribution networks which exist today.

Whilst the means by which sales are now being made may not have been in contemplation by those who crafted the legislation at the time, they tick all the right boxes, arguably in ways far better than those which were under consideration when the regulations were made. The main objective of the legislation is not comprised, but advanced.

A properly managed vending machine and online sales are both within the letter of the law and very much within the spirit of the law, and sales methods which fulfil the “optimisation of public health protection”. So let’s have none of this ‘not within the spirit of the law’, this is an absurd contention

Yes, there must be rigorous hygiene standards in place and appropriately monitored. Dairy farmers producing raw milk are all too well aware of this fact. Their reputation and future livelihood depend upon the scrupulous application of exacting hygiene standards which exceed those set for milk which is to be pasteurised.

Domestic regulations may govern the availability of raw drinking milk but they are also required to fulfil the objectives of general food Regulation (EC) 178/2002 which sets the framework for all food legislation. The Regulation makes it clear that:

It is recognised that scientific risk assessment alone cannot, in some cases, provide all the information on which a risk management decision should be based, and that other factors relevant to the matter under consideration should legitimately be taken into account including societal, economic, traditional, ethical and environmental factors and the feasibility of controls.5

Regulations should generally be based on a risk analysis and must not, in accordance with the principle of proportionality, go beyond what is necessary in order to achieve the stated objective. Where is the evidence of a need for change?

Raw milk is not a high risk food. A fact which Canadian researcher Nadine Ijaz has clearly demonstrated and which is supported in practice by the absence of any reported illness attributable to raw milk in well over 10 years. As one member of the Board of the FSA pointed out at the time the review was first discussed:

“I’m not sure we should be overly worried and be bothering because I can’t see there’s a problem.”

The FSA must reassess its current position that raw drinking milk is a high risk food and, if it is to respect an evidence based approach, recognise that there are “societal, economic, traditional, ethical and environmental factors” at stake. It would be a refreshing first to see the FSA giving weight to these factors rather than bending over backwards in support of industrial milk processing and the stuff which “resembles watered-down whitewash and tastes as though it has had a flavour bypass”.6

There can be no argument with correcting anomalies which may exist in the law, but it’s time the FSA gave due recognition to the valuable contribution which small raw milk dairy farms play in safely contributing to the rich and diverse food culture we have in this country.

1 Hygiene rules for food of animal origin Regulation (EC) 853/2004, Article 10(8)

2 Regulation (EC) 853/2004, recital (23)

3 The Food Hygiene (England) Regulations 2006 SI 2006/14, Schedule 6

4 Explanatory Memorandum to the Food Hygiene (England) Regulations 2006, p5, para 2.1

5 Regulation (EC) 178/2002, recital 19

6 Joanna Blythman, What to Eat, Fourth Estate, 2012, p160