Yesterday I was in New Hampshire, running a few errands, one of which was to pick up a new supply of fresh milk. The farm I buy it from is on a little-traveled side road, so I was more than a bit surprised to pull up and see, across the road, a brand new enclosed farm-stand. Inside was a refrigerated cooler about half filled with plastic jugs ofraw milk ($2 a quart, $4 a half gallon). A farm worker who saw me examining the jugs and not buying, quickly told me, Everything here is legal.

Kathy, the farmer I buy from, obviously has some competition. But the larger message was that the farmer across the street had decided, after watching Kathy grow her business over the last few years, that he wanted in on the action. (Since these farms are within easy driving distance of Hanover, NH, home of Dartmouth, the situation isnt totally incongruous.)

That scene on a quiet New Hampshire road also suggests an explanation behind another story: The government rumblings against herdshare/cowshare arrangements are becoming progressively louder. There can be only one reason: herdshares are becoming an ever more popular way to distribute raw milk to eager consumers.

Take Ohio, which had seemingly resolved the issue of herdshares back in December 2006, when a judge ruled in favor of a farmer who had had her dairy license suspended by the Ohio Department of Agriculture. The states incoming new governor the next month directed his regulators to refrain from appealing the decision.

Now, the ODAs director, Robert Boggs, is apparently getting antsy about all the herdshares/cowshares springing up in his state, where sales of raw milk are illegal. Last week Boggs stated in a letter to Don Neeper, a raw milk advocate who had inquired into rumblings that the state planned to restrict cowshares: Foodborne outbreaks resulting from the consumption of raw milk and dairy products made from raw milk continue to be reported by local health agencies and state regulators. Since becoming Director of the Ohio Department of Agriculture, I have learned of numerous such recorded outbreaks in Ohio and other states, some of which originated from dairy farms with herdshare partners or from farms that were licensed to sell raw milk on site. Serious illnesses, some resulting in hospitalization, have occurred.

“Because the Ohio Revised Code does not address herdshare distribution of raw milk to the ultimate consumers, many people have interpreted this to mean that such activity is legal in Ohio. We feel this issue should be clarified, and that diligently crafted legislation is a step to help protect both consumers and dairy farmers

Boggs in his letter refers to the 2006 court case, noting, The Court’s ruling was not based on whether the contract used was legal or illegal, nor did it address the sanitary conditions that must be present to insure the safety of the milk.

Gary Cox of the Farm-to-Consumer Legal Defense Fund and the lawyer who represented the raw milk producer who won the decision, says, Boggs’ statement about the import of Judge Hein’s decision is wrong. The court was clear, there is nothing in Ohio law that prohibited herdshares.

Herdshares, of course, are under serious attack in New York and Pennsylvania.

Orchestrating the rumblings and attacks is likely the FDA, which calls the shots with most state ag agencies on issues like raw milk. In his testimony to the Maryland legislature in early 2007, the FDAs chief dairy guy, John Sheehan, had a strong message about cow shares and herdshares: In order to protect the public health, raw milk should not be permitted to be sold for human consumption, nor should people be allowed to attempt to skirt laws banning direct raw milk sales by operating so-called ‘cow share’ schemes. The CDC agrees with FDA in this regard (and) stated that State milk regulations and methods for their enforcement should be reviewed and strengthened to minimize the hazards of raw milk.

Its been interesting that on this blog over the last week or so, there has been a fairly rational debate about the dangers of illness from raw milk. Mark McAfee of Organic Pastures Dairy Co. takes verbal barrages from readers, and resists the temptation of most business owners under verbal and legal attack to crawl into a hole. Gwen/Elderberryjam provides an insightful and informed theory about why just a few individuals seem especially susceptible to HUS.

But such debate is totally discouraged by the authorities. They focus on fear and control. And they receive all kinds of encouragement from politicians in their determination to run roughshod over private contractual arrangements between citizens.

In the meantime, consumers vote with their feet and continue to expand the market for raw milk.