Can an Arkansas dairy that's certified to sell inspected Grade A milk also sell unpasteurized raw milk under the state's farm raw-milk law?

Currency note

This opinion was issued in 2013. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Plain-English summary

State Representative Jeremy Gillam asked whether Grade A milk producers, dairies certified and inspected under Arkansas's Grade A milk law, could sell raw (unpasteurized) milk under a provision added to a different statute, A.C.A. § 20-59-248, during the 2013 legislative session. That provision allows "incidental sales" of raw whole milk and goat milk directly to consumers at the farm, subject to conditions like letting customers inspect the farm and posting a specific consumer notice.

The opinion concluded the answer was likely "no." Section 20-59-248 sits within a different subchapter of the dairy code than the one governing Grade A milk, and its required point-of-sale notice must state that "neither this farm nor the milk sold by this farm has been inspected by the State of Arkansas," a statement a Grade A producer cannot truthfully make, since Grade A milk is by definition subject to state inspection. The Arkansas Department of Health, the agency that regulates Grade A dairies, had already concluded the statute doesn't apply to them, and the opinion found a court would likely defer to that interpretation as not "clearly wrong."

Background and analysis (as of 2013)

The 2013 amendment to A.C.A. § 20-59-248 added language stating that the surrounding subchapter (A.C.A. §§ 20-59-201 to -248) "does not prohibit incidental sales of raw goat milk and whole milk that has not been pasteurized directly to consumers at the farm where the milk is produced," subject to three conditions: farm inspection access for the customer, and specific notices at the point of sale and on each unit sold.

The opinion identified three reasons that language likely doesn't extend to Grade A producers. First, the statute is silent on which types of producers it addresses. Second, the "this subchapter" language refers to sections 20-59-201 through -247, not the separate subchapter (A.C.A. §§ 20-59-401 to -407) that actually governs Grade A milk. Third, and most decisive, the mandatory consumer notice under subsection (c) requires stating the farm and its milk have not been state-inspected, a factual claim Grade A producers cannot make given their milk is inspected under §§ 20-59-403, -404, and 20-59-205(a)(1). Because the agency charged with regulating Grade A dairies, the Arkansas Department of Health, had already interpreted the statute as inapplicable to Grade A producers, and Arkansas courts defer to an agency's interpretation of statutes it administers unless "clearly wrong," the opinion concluded a court would likely uphold that interpretation and find Grade A producers cannot use section 20-59-248 to sell raw milk.

Citations and references

Statutes (as they stood in 2013):

• A.C.A. § 20-59-248, as amended in 2013 to allow incidental on-farm sales of unpasteurized whole milk and goat milk, subject to inspection-access and notice conditions
• A.C.A. §§ 20-59-401 to -407, the separate subchapter governing Grade A milk producers
• A.C.A. § 20-59-205(a)(1), requiring Department of Health inspection of dairy products plants
• A.C.A. §§ 20-59-403, -404, further Grade A inspection requirements

Cases:

• Dooley v. Automated Conveyor Sys. Inc., 84 Ark. App. 412 (2004), courts follow an agency's interpretation of statutes it is charged with administering unless clearly wrong

Source

• Landing page: https://arkansasag.gov/divisions/opinions-foia/attorney-general-opinions-search/

Original opinion text

STATE OF ARKANSAS

THE ATTORNEY GENERAL
DUSTIN McDANIEL

Opinion No. 2013-107

December 20, 2013

The Honorable Jeremy Gillam
State Representative

1825 Missile Base Road
Judsonia, Arkansas 72081-9169

Dear Representative Gillam:

You have requested my opinion on the following question: "In accordance with
Arkansas Code § 20-59-248, can Grade 'A' milk producers sell raw milk?"

RESPONSE

The answer to this question is in all likelihood "no," in my opinion. Although
section 20-59-248 does not expressly declare its effect on Grade "A" milk
producers, the state agency charged with regulating Grade "A" dairies has
determined, based on its interpretation of the relevant statutes, that Grade "A"
dairies are not permitted to sell raw milk. A court will uphold this interpretation of
the relevant statutes unless it is "clearly wrong." Given three features of section
20-59-248, which are discussed below, I conclude that a court would likely decline
to hold the agency's interpretation clearly wrong. Therefore, in my opinion, a
court faced with your question would likely hold that Grade "A" dairies are not
permitted to sell raw milk.

DISCUSSION

By the term "raw milk," I will assume you are referring to milk that has not been
pasteurized.1

1 Section 20-59-248 (Supp. 2013) does not use the term "raw milk." Rather, the statute refers to
"whole milk that has not been pasteurized," which I take to be the subject of your question

323 CENTER STREET, SUITE 200 * LITTLE ROCK, ARKANSAS 72201
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INTERNET WEBSITE * http://www.ag.state.ar.us/

The Honorable Jeremy Gillam
State Representative

Opinion No. 2013-107

Page 2

Arkansas Code Annotated § 20-59-248 was amended in the 2013 legislative
session to add several provisions, including the following, regarding the sale of
"whole milk that has not been pasteurized:"

This subchapter [i.e., A.C.A. §§ 20-59-201 to -248] does not prohibit
incidental sales of raw goat milk and whole milk that has not been
pasteurized directly to consumers at the farm where the milk is
produced or preclude the advertising of incidental sales of goat milk
and whole milk that has not been pasteurized.2

In addition to stating that sections 20-59-201 to -248 "do not preclude" certain
activities, the amended section 20-59-248 establishes three conditions that must be
met in order to legally sell raw milk. First, the farmer who sells the milk must
permit the customer to inspect the farmer's "cows and barns" when requested.3
The second and third conditions relate to notifying the customer about the product.
In short, the seller must post the following message at the point of sale and affix it
to each individual unit sold:

This product, sold for personal use and not for resale, is fresh whole
milk that has NOT been pasteurized. Neither this farm nor the milk
sold by this farm has been inspected by the State of Arkansas. The
consumer assumes all liability for health issues that may result from
the consumption of this product.4

Your question, in effect, is whether the foregoing provisions enable Grade "A"
milk producers to sell raw milk.

In addressing this question, we can make three preliminary observations:

regarding "raw milk." I will use the term "raw milk" in this opinion, meaning unpasteurized milk
as referenced in section 20-59-248.

2 A.C.A. § 20-59-248(b) (Supp. 2013).
3 A.C.A. § 20-59-248(d).

4 A.C.A. § 20-59-248(c).

The Honorable Jeremy Gillam
State Representative

Opinion No. 2013-107

Page 3

• First, section 20-59-248 is simply silent as to which types of milk producers
  it was intended to address. So, as an initial matter, we can say that section
  20-59-248 does not expressly address the question whether Grade "A" milk
  producers may sell raw milk.

• Second, when subsection 20-59-248(b) states that "[t]his subchapter does
  not prohibit incidental sales" of raw milk, the phrase "this subchapter" is
  referring to sections 20-59-201 to -247. But these statutes are not the
  primary statutes addressing Grade "A" milk. The latter can be found at
  A.C.A. §§ 20-59-401 to -407 and the accompanying regulations
  promulgated by the Arkansas Department of Health.

• Finally, and perhaps most significant, the foregoing notifications (under
  subsection 20-59-248(c), excerpted above) that must be provided to raw-
  milk customers contain representations that cannot be made by Grade "A"
  milk producers. That notice, posted at the point of sale and affixed to each
  unit sold, must state that "[n]either this farm nor the milk sold by this
  farm has been inspected by the State of Arkansas." (Emphasis added.) But
  this representation cannot be made by Grade "A" milk producers because
  their milk products are subject to inspection.5

In sum, while section 20-59-248 does not expressly declare its effect on Grade
"A" milk producers, the statute's context and notification provisions strongly
suggest that the General Assembly did not intend the statute to apply to Grade "A"
milk producers.

Additionally, it is important to note that the state agency charged with regulating
Grade "A" milk producers, the Arkansas Department of Health, has determined
that the statute does not apply to Grade "A" milk producers. Courts will follow an
agency's interpretation of statutes it is charged with administering unless that
interpretation is "clearly wrong."6 Given the three preliminary observations noted
above, I believe it is highly unlikely that a court would declare the agency's
interpretation clearly wrong.

5 See generally A.C.A. §§ 20-59-403, -404; A.C.A. § 20-59-205(a)(1) (requiring the Department
of Health to inspect all dairy products plants and places where dairy products are produced or
handled).

6 E.g., Dooley v. Automated Conveyor Sys. Inc., 84 Ark. App. 412, 419, 143 S.W.3d 585, 590
(2004).

The Honorable Jeremy Gillam
State Representative

Opinion No. 2013-107

Page 4

Therefore, in my opinion, a court faced with your question would in all likelihood
be persuaded that section 20-59-248 is inapplicable to Grade "A" milk producers.
I believe the court would base this conclusion on both the statute's text and the
interpretation of the agency charged with the statute's regulation. Accordingly, it
is my conclusion that the answer to your question is "no." In my opinion, A.C.A.
§ 20-59-248 does not authorize Grade "A" milk producers to advertise and sell
raw milk.

Assistant Attorney General Ryan Owsley prepared the foregoing opinion, which I
hereby approve.

Sincerely,

DUSTIN McDANIEL
Attorney General

DM:RO/cyh