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that it did not approve the practice of consuming raw milk, and in a letter from the then
director of the division, it was stated that, “The department continues to recommend that
high protein foods, including milk, should not be consumed raw. These products may
contain pathogens that can cause illness in the general population and place the very
young, elderly, and individuals with compromised immune systems at substantive risk.”
She said that since that time, the division has gathered additional information regarding
the risk of raw milk and has asked the Attorney General’s Office to reexamine its legal
conclusion with regard to cow shares. Ms. Shpall stated that based on her analysis and
research into the legislative history of the regulation of raw milk in this state, and the
Board’s broad powers that mandate it to protect the public health, it is clear that this
Board and the department have the
Board of Health Minutes May 19, 2004 Page 13
authority to regulate any arrangement designed to distribute milk for human
consumption, including raw milk. She stated that the Board’s broad authorities have
given the Board the power to evaluate any situation where raw milk comes into the hands
of an ultimate consumer. She stated that as a result of this evaluation, the division
proposes that the definition of “sale” be modified to state that the sale of undivided shares
or interests in a cow or dairy herd constitutes the sale of raw milk.
Ms. Shpall further elaborated on the legislative history and the Board’s authority
regarding this matter. She stated that this Board has whatever authority may be
reasonably necessary or essential to the efficient administration of the pasteurized milk
program; it has the authority to define terms such as sale, and define them in a manner to
effectuate the purposes of the pasteurized milk program, which includes the banning of
the sale of raw milk; it has the authority to determine, based on the evidence presented
today, that raw milk is not safe, and to prevent it from being sold through cow shares. She
stated that this is true even though it was previously determined that the Board did not
have authority. She explained that administrative agencies have inherent authority to
revisit any regulation or rule or interpretations they promulgate, so long as they have a
reasonable basis for this reevaluation. She said that is what the division is asking the
Board to do today – to reevaluate its previous position in light of new information or
changed circumstances. She clarified that the Board of Health did not rule on this in the
previous 1995 hearing because it was determined that the cow share program was outside
the scope of the Board’s authority. Therefore, she said the Board ruled that the issue was
moot and did not take a position on it. She stated that the division has outlined its reasons
for the proposal before the Board today and there is ample evidence in the record for the
Board to find that raw milk cannot be made safe for human consumption, no matter how
carefully it is produced. She stated that the Board must act in accordance with its mandate
to protect the public health and close the avenue of cow shares for obtaining raw milk.
In response to various Board questions and comments, Ms. Shpall further expounded
regarding the legislative intent for Colorado to be consistent with the federal PMO, and
the Board’s regulatory authority concerning this matter. She reiterated that the statute
refers to the power to adopt minimum standards, and what the division and the
department are indicating is that the minimum standard is pasteurization – that there is
nothing less than pasteurization that will protect public health. There were additional
questions, comments and further discussion regarding the legal issues.
B. James Dean, attorney for Guidestone, stated that there are some statistics from the
federal government that indicate that 200,000 persons were ill from pasteurized milk
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