When it comes to unpasteurized milk in Canada, law makers err on the side of safety, prohibiting people from selling raw dairy products and challenging the legality of a dairy co-op as a way for share-holders to get raw milk.

But south of the border in Washington State, regulators found they had to strike a better balance between individual freedom and public safety -- otherwise an underground market for raw milk would thrive.

“What you had was clearly people who wanted a product and were illegally buying it on, what I would call, the black market,” said Jay Gordon, executive director of the Washington State Dairy Association, which represents 450 pasteurized and non-pasteurized cow dairies.

The state’s solution was to legalize and regulate raw dairy operations. Unpasteurized milk sales have been legal in Washington since 1949, but when 18 people, including children, fell ill in 2005 after drinking raw milk from an unlicensed dairy farm, legislators tightened regulations and stiffened fines.

“We felt that the best way for the public agencies and the legislation to come down on the issue was to say that people want to buy it -- that was clear,” said Gordon.

“The best thing we can do is make sure we have a good system that license, tests and monitors the farms that want to produce this product.”

Five per cent of Washington dairies market raw milk, according to the state agriculture department, and raw dairies have smaller herds and produce much less milk compared to dairies that produce milk for pasteurization.

Related: Raw in the U.S. map

Of the 490 dairy farms in Washington, the department of agriculture licenses 28 raw cow and goat dairies and requires regular monthly testing, visits from health inspectors and a permit to sell Grade A milk. All bottling occurs on the farm, and consumers can purchase milk from the farmer or from hundreds of grocery stores throughout the state.

The law also requires that all raw milk carry this warning: "This product has not been pasteurized and may contain harmful bacteria. Pregnant women, children, the elderly and persons with lowered resistance to disease have the highest risk of harm from use of this product."

Awareness is a vital factor, says Gordon, who runs a licensed dairy with 150 milking cows and pasteurizes his own milk.

“You want to buy it, you understand the risks and you take that risk,” he said.

A premium product worth the risk

Six months ago Tiffany Timbers, a PhD candidate in neuroscience at the University of British Columbia, was looking for milk from a grass-fed cow and bought a share at Alice Jongerden’s Chilliwack, B.C., farm. The Home on the Range dairy is now facing an injunction from B.C. health authorities to halt production.

“I was not interested in the question of raw versus pasteurized,” said Timbers. “As a consumer, I wanted to make a vote with my money as to what type of farming industry I wanted to support.”

The B.C. Milk Marketing Board sets the price farmers are paid for the milk produced on their farms. Milk is then pooled at centralized processing plants and pasteurized. This didn’t appeal to Timbers so she bought a $75 half-share at Home on the Range and pays $9.50 a week for two liters of milk.

Should Home on the Range be shuttered, Timbers is weighing her options.

“I would contemplate whether or not I would be buying store-bought milk. I definitely would look to see if there are other dairies that do this sort of thing. And, not that I would do it on a regular basis, but once in a while I would drive to Washington State.”

Cow shares are outlawed in Washington as a means for evading required licensing and inspections. The farm linked to the 2005 outbreak of E. coli was running a dairy co-op with 45 shareholders. Authorities shut it down and the owners pled guilty to charges of selling adulterated food

Cow shares are outlawed in Washington because authorities fear they are a strategy for farmers and shareholders to evade licensing requirements and inspections.

Jay Gordon says health and agriculture agencies wanted to send an unmistakable message to unlicensed dairies that they can’t market from the back of the barn — and they had the support of key stakeholders.

“Not only the conventional producers, but also licensed raw dairy producers were saying, ‘We follow the law of the land. We want increased penalties for those who don’t.”

A desire for food sovereignty

Washington authorities would require cow share farmers like Alice Jongerden’s to license her dairy farm and test milk samples on a monthly basis for antibiotics and pathogens like Listeriosis, E. coli and salmonella.

Canadian authorities are more cautious.

“When it comes to a staple food like milk, which is an essential source of nutrients to the vast majority of Canadians, there is a need to provide greater protection for consumers,” a spokesperson for Health Canada said in an email to ctvbc.ca.

“In particular, milk is widely consumed by young children, who are at greater risk for complications from food borne illness,”

However, Jongerden is not running the only active cow share in British Columbia.

Kurtis Staven operates a dairy co-op from his 14-acre Christina Lake farm, Wild Thing Organics. His three Jersey cows each produce about three gallons of milk a day, enough to satisfy Staven’s 50 shareholders and their families.

Staven is lactose intolerant and says he could never digest pasteurized milk.

“I can’t touch dairy products off the shelf,” he said.

Staven grew up drinking milk raw and fresh from a family farm near Calgary. When he moved to the Kootenays with his wife in 2005, Staven paid to ship raw milk from California.

“That was an incredible cost,” he told ctvbc.ca from Christina Lake. “With shipping, we were paying just over $40 a gallon. I go through just about two gallons a week of milk.”

For less than 12 months in 2006, Staven shipped Organic Pastures milk to a post office box in Washington. But the interstate sale of unpasteurized milk was about to be prohibited by the federal Food and Drug Administration.

“We decided at that point in time, for what it was costing us, it would be much cheaper to get a hold of a dairy cow.”

He secured his own source of milk, and when neighbours said they also wanted to drink raw milk from Staven’s Jersey cow, he set up a cow share.

Staven says he has not been contacted by any B.C. authorities. In the meantime, he and other raw milk advocates are following the example set in Washington by establishing the Canadian Alliance for Raw Milk, an organization that will determine what producers can do to ensure raw milk is as safe as possible.

Dairy advocate Gordon Watson is part of this alliance with Staven. As the first shareholder to buy into Home on the Range, Watson says he knows of six other cow shares operating in B.C. and wants to start his own.

“The moment I find five acres, I’ll have a couple of cows,” he told ctvbc.ca.

The Alliance for Raw Milk has an interest in ensuring unpasteurized milk is as safe as possible.

“We take a proactive stance in this because it is going to take years to go through the system to rewrite regulations. In the meantime, we can set up our own systems, and mimic the Washington state regulations,” said Staven.

Does he think B.C.’s health authorities can stand to learn from Washington State?

“Yes, I do,” he said.

Legalize and regulate

Kimberly Hartke of the Weston A. Price Foundation, the largest raw milk advocate in the U.S., said Washington State can serve as a model for other jurisdictions.

“I can see it both ways. I can see why some regulations err on the side of consumer safety,” she told ctvbc.ca.

“I do think there is a value in having more education around what the products are and what the risks are — at least consumers know what the government thinks is risky.”

B.C.’s provincial health officer, Dr. Perry Kendall, told CTV News that raw milk needs to remain illegal to protect people from unnecessary health risks. For regulations to change here, he said the courts will have to uphold the legality of a cow share operation as they did in Ontario in the case of Michael Schmidt.

Last week, Schmidt won his lengthy trial for the right to sell raw milk to customers at his dairy co-op, successfully arguing members are aware of the health risks. Alice Jongerden will soon fight a court injunction against her co-op in B.C. Supreme Court beginning February 1.

Dr. Kendall says an upside to legalized raw milk would be tighter control over producers and the health and safety procedures at farms.

“But even when you put those constraints, regulations and safeguards in place you still do get outbreaks of food borne illness from those cows and people still do get sick from drinking unpasteurized milk at a grater rate than a properly pasteurized and managed food source.”

In the United States, where 28 states in addition to Washington allow the sale of raw milk, the majority of scientists say the liquid is a serious health risk. Of 153 milk-related health outbreaks in the U.S. from 1990 to 2003, 50 were attributed to raw dairy — as were 1140 sicknesses.

In December 2009, the Washington State Department of Agriculture linked three cases of E. coli to a licensed raw dairy in the town of Sequim. The farm contests the validity of the testing, but will have to comply with regulators or risk losing its license to sell raw milk.

For Jay Gordon of the Washington State Dairy Alliance, this is an example of the system working to keep raw milk as safe as possible.

“The question we asked was, ‘What is better for the overall public health?’ We came down on this side. I’m not saying it’s right, but it’s been our decision,” he said.

“I think every one of the farms is now quite proud to say that they are a licensed, tested, legal dairy supplier. And that supplanted the black market, which is what we intended.”