HARRISBURG, Pa. — Pennsylvania lawmakers think they have found a way to allow whole milk to be served in schools.
All they have to do is take the federal government out of the picture.
The House Agriculture and Rural Affairs Committee unanimously approved a bill March 30 that would deem milk that is produced, processed and sold in Pennsylvania to be in the stream of intrastate — not interstate — commerce.
The U.S. Constitution allows Congress to regulate only interstate trade. So if the milk never leaves the state and isn’t purchased with federal money, bill sponsor Rep. John Lawrence said, it’s none of D.C.’s business.
“I’m trying to make this very much about state and local source of funds,” said Lawrence, R-West Grove.
The idea — which Lawrence said came to him while he was mowing his lawn — is to circumvent federal School Lunch Program rules that allow only skim and 1% to be served.
Restoring whole milk to cafeterias is a major priority for dairy groups, which blame a 2010 law for a drop in school milk consumption. The law requires school milk to conform to the Dietary Guidelines for Americans, which encourages a low-fat diet.
Farmers are upset about the lost sales and fear losing future customers if children are exposed only to skim milk, which many dairy farmers say has a disgusting taste.
“Most of these skim milk cartons end up in the trash,” Lawrence said. “Talk to any school cafeteria worker and they will tell you this.”
The low-fat rule was designed to combat childhood obesity and may have affected school milk consumption.
But beverage milk has been losing cachet for decades, and PolitiFact says the school milk decline was also caused by falling school lunch participation, competition with free water, and the law’s mandate that meals include a fruit or vegetable. Produce has replaced milk as the go-to add-on when students are one item short.
So dairy interests are pursuing alternative avenues, such as the Pennsylvania legislation and a consumer education campaign that promotes whole milk as approximately 97% fat free.
Pennsylvania Farm Bureau supported Lawrence’s bill as part of a lobbying day on Capitol Hill.
“It will not only provide a much-needed boost for Pennsylvania dairy farmers, but it would also help foster a new generation of healthy kids who drink milk,” said Rick Ebert, Pennsylvania Farm Bureau president.
Rep. Emily Kinkead, D-Pittsburgh, supported the bill but said she was concerned that schools could lose federal aid during lengthy litigation if they chose to serve Pennsylvania whole milk.
“There’s a real issue, I think, with whether or not any schools are actually going to participate in this,” she said.
Lawrence said Kinkead raised an important point, but federal funding makes up a small piece of school district budgets. Lawrence said he’s confident that at least some districts will participate.
Still, it's not certain that the bill would hold up in court. There are too many variables to predict an outcome, said Brook Duer, staff attorney at the Penn State Center for Agricultural and Shale Law.
Indeed, Lawrence is anticipating a legal challenge. The legislation would compel the state attorney general to sue the federal government on behalf of a Pennsylvania school to recover funding withheld or revoked over serving in-state whole milk.
“Some people have said we’re picking a fight with the federal government. Yes we are,” co-sponsor Rep. Clint Owlett, R-Wellsboro, said.
Lawrence said that lawsuit provision is similar to a state law that allows the attorney general to defend a farmer against local regulations that are stricter than state statute.
But it's one thing for a state law to say the attorney general shall pursue litigation for violations of Pennsylvania law. This bill mandates litigation against the federal government for enforcing its law within the state.
That requirement appears to violate the U.S. Constitution's clause that establishes federal law as supreme over state law, Duer said.
Lawrence said his legislation addresses that concern because it involves only intrastate commerce and because the 10th Amendment gives power to the states in matters, such as agriculture and education, on which the Constitution is silent.
Lawrence said his plan is only feasible because Pennsylvania is a major dairy producer, with the second largest number of dairy farms of any state.
“We have plenty of Pennsylvania milk to provide to Pennsylvania schoolchildren,” he said.
The ag committee leaders said the legislation tackles a situation in which the federal government has become needlessly prescriptive.
“Listen, it’s called an option. It’s a choice whether you want vanilla, chocolate or strawberry, whether you want whole milk, whether you want skim milk, or you want water,” said Rep. Eddie Day Pashinski, the committee’s top Democrat.
“This is something that should have never come to the table, our government choosing what milk our parents can feed our children,” said GOP Rep. Dan Moul, the committee chairman.
To gauge the effectiveness of the state whole milk bill, the secretary of education would have to file a report within two years that lists the schools that have used Pennsylvania whole milk, and documents the change in fluid milk consumption during the law’s existence.
A Day for Dairy
The Agriculture and Rural Affairs Committee approved a number of other dairy bills during Wednesday’s meeting.
One would create tax incentives to attract new dairy processing to Pennsylvania.
This bill, which Lawrence sponsored, would help diversify the state’s processing portfolio, which has leaned on the declining fluid milk market while consumption of cheese and other products grows.
The program would support new and existing large processors, as well as on-farm businesses, Lawrence said.
Another bill would allow the Pennsylvania Milk Marketing Board to coordinate with the Department of Revenue on the collection of the over-order premium.
The Milk Marketing Board sets the premium but lacks authority to directly handle the dollars, which are paid to farmers on fluid milk that stays in state.
The premium money currently flows to farmers through their processors or co-ops, but Lawrence contends that channeling the money through the state would address farmer concerns about underpayment.
“This state-mandated milk premium has very little real accountability, and that is wrong,” Lawrence said. “A state-mandated premium should have robust accountability. We should know exactly where every dime of that money is going.”
The board also advanced a bill changing the board’s name to the Pennsylvania Milk Board. Some people have said the Milk Marketing Board’s name is confusing because the agency does not buy or sell any milk.
Bill sponsor Rep. Christina Sappey, D-Chester County, said the new name would be “short, simple, clear, comprehensive.”
Another approved bill would increase the penalty in lieu of license suspension for processors that are found to be in violation of the Milk Marketing Law.
At $150 per day, the current rate is too low to prod processors to come into compliance, according to Carol Hardbarger, the Milk Marketing Board secretary.
The new fine would be $1,000 per day.
Lawmakers also OK’d legislation to adjust the certification rules for milk testers.
This story has been updated with quotes and additional details.