SB387 verses SB30: Why the WV Raw Milk Herdshare Bill is essentially the same as last year

I read today that Gov. Tomlin said he signed SB387, the West Virginia Raw Milk Herdshare bill, this year because this year’s bill has “precautions in place to better protect people’s health.”

The bill is nearly the same as last year, though some wording has moved around. There are slight wording changes, that if you discuss even for a moment, with the sponsors of the House or Senate Herdshare bills, or with an attorney, you will see SB387, thankfully, is not functionally different than last year’s bill, SB30.

SB387 has a few changes:

SB30 read: “providing immunity to herd seller; agreeing not to distribute raw milk; prohibiting sale or resale of raw milk;”

SB87 reads: “providing immunity to herd seller for inherent dangers of consuming raw milk; providing no waiver of immunity to herd seller for dangers caused by negligence of herd seller;  prohibiting responsible party from distributing, selling or reselling raw milk received pursuant to shared ownership agreement;”

In actual practice, there is no difference. There is no way to waive responsibility for negligence. While I’d have preferred to not have that language so it couldn’t misconstrued, there is no release from negligence no matter how a bill reads. In practice, there is no real change.  It does explain giving out the milk from your share is illegal, but that was illegal anyway, as this code doesn’t change that, outside of buying a herdshare, selling or giving out raw milk to the public is still illegal through rule making and has been.

The next real change was:

SB30 read: “The Commissioner of the Department of Agriculture shall propose rules for legislative approval in accordance with the provisions of article three, chapter twenty-nine-a of this code regarding the contents of the report required pursuant to this subsection and impose an administrative penalty not to exceed $100 for a person who violates the provisions of this section.”

SB387 reads: “The Commissioner of Agriculture, in consultation with the Department of Health and Human Resources, may propose rules for promulgation in accordance with the provisions of article three, chapter twenty-nine-a of this code in compliance with raw milk dairy industry standards.”

The DHHR was still excluded from being able to make rules, which was so important and what we fought very hard for through WV Raw Milk Group. Many of our supportive legislators worked hard to secure that, and we pushed hard for that. Even right before the bill when to the House Floor, a delegate tried to get it added.

Just like the DHHR was allowed to consult and suggest what they would like in 2015,they can do so in 2016, but it is just confirmed in language this year as. The fact they are told they can speak with and suggest to the Department of Agriculture, while still not being rule makers, changes nothing and does not allow them to direct the rule making, thankfully.

The  area I feel the 2016 version is superior to the 2015 version is the word “May.” This was intentional over last year’s wording. Last year, it was “Shall.” Given Rule-Making is compromised of the House and Senate bills’ sponsors and other supporters, we have an better chance this year of either no additional rules being the current language or only those the committee decides on. . .in that word we have this year: “May.”





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