House advances raw milk, health care cost-sharing bills

House Bill 4911, which legalized the sale of raw milk, passed the West Virginia House of Delegates on Monday, Feb. 19, 2024, and will now head to the Senate. (Perry Bennett | West Virginia Legislative Photography)

The sale of raw milk is one step closer to being legal in West Virginia.

Consuming raw or unpasteurized milk through herd-sharing agreements has been legal in the state since 2016 .

House Bill 4911 would make the sale of raw milk legal if the milk is sold in clearly labeled containers. The House voted 76 to 19 to pass the bill.

A few lawmakers on both sides of the aisle argued unsuccessfully against a portion of the bill that would make sellers of raw milk immune to lawsuit and liability for claims related to personal injury for actual or alleged act, error or omission that occurred as long as the act was not intentional.

Del. J.B. Akers, R-Kanawha, argued the section removing liability would encroach on constituents’ constitutional right to a trial by jury, even in civil cases.

“I’m 100% for the ability to make and sell raw milk if that’s what they want to do,” Akers said. “I have no opposition to that whatsoever. You should be allowed to do that. But the next time some large interest comes in, for example, and tells us they want to create jobs in a certain place or maybe dangle some money in front of us, they may also demand immunity in our court system.”

“If we’re going to be consistent with regard to our view of the Seventh Amendment and the 13th article of the West Virginia Constitution, we should say that people maintain this constitutional right, and I just have concerns about us normalizing giving our constituents’ constitutional rights. People have a right to a trial by jury.”

Delegates on Friday voted down an amendment from Del. Mike Pushkin, D-Kanawha, which would have removed the exemptions for liability.

“I have no problem with the bill other than the last paragraph that gives this broad immunity,” Pushkin said Monday. “I don’t know of any other food product or any other product at all that we give this type of immunity to. … I’m all for freedom but I’m also [for] the freedom to seek justice in a court of law.”

Speaking in favor of the bill, Del. Amy Summers, R-Taylor, a sponsor of the bill and chairwoman of the House Health Committee, said her grandparents, who were farmers in West Virginia, would be “rolling over in their graves” hearing the floor debate.

“They would not believe that we think you can’t have the choice if you want to drink raw milk or not,” Summers said. “No one is shoving it down your throat. You don’t have to drink it. Just if you want to drink it. We’re going to give you the freedom to do that.”

Summers called the state’s herd-share program a “government scheme” that people have to jump through.

“I gotta own a piece of this cow so that I can drink that milk,” she said. “Let’s just remove the government bureaucracy, let people do this if they want to do this and move on.”

According to the U.S. Centers for Disease Control and Prevention , raw milk is linked to a variety of foodborne illnesses.

In the last 10 years, West Virginia averaged 3.9 foodborne illnesses per year among individuals who reported raw dairy as an exposure, a spokeswoman for the state Department of Health said.

Over the same time period, the bureau investigated a single outbreak involving raw milk, a spokeswoman said.

Supporters of the bill have touted it as a “freedom bill” and a way to give farmers a way of making extra money.

The bill will next go to the Senate for consideration.

Also Monday, the House of Delegates approved House Bill 4809 , which would exempt health care cost sharing ministries from state law concerning insurance.

The Senate last week passed a similar bill, Senate Bill 375. Both are dubbed the “Health Care Sharing Ministries Freedom to Share Act.”

According to the state Office of the Insurance Commissioner, health care sharing ministries are organizations that share the cost of their health care. Usually, members share common religious beliefs. Unlike insurance plans, health care sharing ministries cannot guarantee payment of claims and usually do not have provider networks.

The programs are not required to comply with consumer protections of the Affordable Care Act such as covering pre-existing conditions or capping out-of-pocket expenses.

A spokeswoman for the Insurance commissioner’s office said the programs are not considered insurance even under current state law.

The House bill would allow people with complaints about the programs to submit them to the state attorney general’s office.

Delegate Mike Hornby, R-Berkeley, who sponsored the House bill, called his legislation a compromise between the state Office of the Insurance Commissioner and the health sharing ministry programs.

Valarie Blake, a professor of law at West Virginia University, said that, on one hand, medical cost-sharing ministries are not real insurance. Consumers are misled if they think of them like insurance because they lack consumer protections provided by insurance. On the other hand, sweeping away all insurance regulations from the plans makes them “even more dangerous than they already are,” she said.

“One of the things that most states require of insurance, is that the company be financially solvent to pay its expenses,” Blake said. “And so that’s a really simple thing that most people don’t worry about with their health Insurance, that their health insurance company has actually enough money in the pool to pay the expenses of the beneficiaries. But that’s the kind of thing that this bill means that a health care sharing ministry doesn’t have to guarantee. It doesn’t have to have enough money.”

Both bills would require state institutes of higher education to accept membership in a health care cost sharing program to count toward a requirement to have health insurance and specify that the programs are not considered “third party payor” programs.

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