Larned attorney Ronald Smith said the Kansas Department of Agriculture’s loss in a legal challenge of a ban on raw milk advertising inspired the agency to launch a regulatory assault on about four dozen producers who sell unpasteurized milk directly to consumers.

Smith’s comments during a Senate committee hearing Wednesday were in response to a bill requiring any container of raw milk sold in Kansas to include a 37-word label warning of potential health risks of consuming unprocessed milk. The agriculture department’s bill went so far as to require the text be printed no smaller than the largest font size used on the label.

“The label is fear mongering. It is governmental vindictiveness,” Smith said. “For 20 or 30 years, there was no labeling requirement. Why the change? Senate Bill 308 is here because the Department of Agriculture lost a lawsuit.”

In 2019, Attorney General Derek Schmidt agreed to settle a lawsuit brought by goal dairy farmers challenging a state law prohibiting advertising for raw milk as unconstitutional. The agreement approved in Shawnee County District Court struck down a prohibition on advertising raw milk except on the farm premise. It didn’t alter a ban on raw milk sales in retail stores.

Under Senate Bill 308, Kansas producers of raw milk and milk products could market their goods if containers had the warning label and if advertisements included the consumer advisory. The Senate Agriculture and Natural Resources Committee has taken no action on the labeling bill.

Kenneth Titus, general counsel at the Department of Agriculture, said new mandate was justified because drinking raw milk increased potential of contracting a food-borne illness. The agency is opposed to a separate Senate bill outlawing sale of raw milk, he said.

“A better alternative is to continue to help consumers make informed decisions by requiring appropriate label and advertisement warnings,” he said.

The proposed warning: “This product contains ungraded raw milk that is not pasteurized and, as a result, may contain organisms that cause food-borne illness, especially in infants, young children, older adults, pregnant women and people with weak immune systems.”

No milk produced in Kansas actually receives a quality grade while in a dairy farm’s bulk tank or when picked up by a processor. The 250 Grade A dairies in the state maintain their standing by complying with production protocols and regular testing.

Mary Powell, a graduate of Kansas State University and seller of raw milk on her farm in Longton, said the bill ought to be rejected because the recommended warning text was verbose and would be printed large enough to obscure the name and location of the dairy, the serving size and basic nutritional information.

“Raw milk is not as dangerous as cigarettes and yet the font of the warning must match the largest font on the package,” Powell said.

Tucker Stewart, associate counsel of the Kansas Livestock Association, said the organization worked with the agriculture department and the Kansas Department of Health and Environment to draft the disclaimer. Pasteurization has prevented millions of people from becoming ill, he said.

The bill should be expanded to mandate dairies selling unpasteurized milk register with the state and to require these dairies comply with Grade A standards, he said.

Samuel MacRoberts, an attorney with the Kansas Justice Center, said existing state law required unpasteurized milk sold in Kansas to be labeled as raw and state law also forbids false or misleading advertising. The Senate bill is a violation of free speech clauses of the state and federal constitutions, he said.

“Kansans are savvy enough to understand that raw milk is unpasteurized. In fact, that’s the whole point of selling and consuming raw milk,” MacRoberts said.