A new West Virginia law expanded raw milk sales. Finding farm insurance might be a hurdle.

A worker attaches a suction device to a cow’s udder at the Faria Dairy Farm June 2, 2009 in Escalon, California. As West Virginia's raw milk law has expanded sales to the public, some farmers are sticking to the herdshare program. (Justin Sullivan | Getty Images)

Ripley farmer Michael Overholt grew up on a dairy farm drinking raw milk. Now, as a homesteader with 10 cows, he has provided raw milk to customers through a herd share program since 2018.

“The choice for us was a very natural choice,” Overholt said of unpasteurized milk. “A lot of it simply had to do with the fact that I’ve learned, or it seems to me that as we alter nature, usually sometimes, somewhere there’s a price to pay.”

In exchange for getting one gallon of raw milk per week, herd share members pay a one-time fee that allows them a legal share in Overholt’s herd and an additional $35 monthly boarding fee for the cows.

The herd share program has been the legal way for West Virginians to consume unpasteurized milk since 2016. As of June 7, when House Bill 4911 went into effect, Overholt and the state’s other dairy producers may legally sell raw milk to customers outright without the herd share program. At least for now, Overholt said he does not plan to change the way he does business.

“What I’m doing is working,” Overholt said. “We plan to stick with that. Now, with time we may change over to selling milk outright, but as of now I’m going to continue to herd share and kind of wait and see how it all shakes out.”

As of earlier this year, there were 12 raw milk herd share sellers in West Virginia providing raw milk to 168 individuals through herd share agreements, according to the Department of Agriculture. Agriculture commissioner Kent Leonhardt said even with the new law in effect, the state will continue to recognize the herd share program.

Walker Thompson, of Kenna, said he’s been a customer of Overholt’s herd share program since it opened. He gets a gallon each week.

“I grew up on raw milk,” he said. “So I was familiar with it. And once it became available, then we were very much interested in starting to purchase it.”

Thompson said hasn’t made up his mind yet about whether he would buy raw milk off a store shelf, but he does plan to continue getting it from Overholt’s herds.

Raw milk has the potential to cause serious health risks, especially for vulnerable people .

An avian flu outbreak continues in dairy cows , affecting 83 herds in nine states so far, according to the U.S. Centers for Disease Control and Prevention. The risk of human infection of bird flu through consumption of raw milk is unknown.

While West Virginia so far has not been affected by the bird flu outbreak, a dairy scientist told West Virginia Watch that avian flu is one more reason not to consume raw milk.

Even before the bird flu outbreak, the CDC and the Federal Food and Drug Administration have advised people not to consume raw milk to avoid foodborne illnesses.

Farmers participating in the herd share program may be somewhat protected from liability compared with farmers who may choose to sell it outright, Leonhardt said.

“The person drinking the raw milk is drinking it from their own cow, which has always been legal,” Leonhardt said. “You’re not going to sue yourself.”

The Department of Agriculture recommends dairy farmers interested in selling raw milk find insurance, which can be a challenge. Leonhardt said recently he has not found any insurance company that will cover farms that sell raw milk. One farmer told him he found one, but that farmer is not yet insured.

“I personally wouldn’t risk my farm selling raw milk without having insurance,” Leonhardt said. “I mean I just wouldn’t do it. So my recommendation to the farmers is to make sure you have insurance before you sell.”

Overholt said members of the herd share program sign a contract agreeing not to hold him liable for illness and disease that may be transmitted in the milk. Beyond that, Overholt said he’s relying on his faith for protection from potential problems.

“As a farmer, a farm, we actually do not even carry insurance,” he said. “Now that is considered not wise by many. However, we simply chose — for us it’s an expression of our trust in God and his ability to direct us. So we chose to not pursue farm insurance.”

Greenbrier Dairy LLC in Rainelle produces pasteurized, value-added milk products like cheese, butter and yogurt. Owner and founder Trey Yates said raw milk is one of the most frequent requests he has from people, but the difficulty finding insurance is a big factor in his decision so far not to offer it.

“The amount of messages we get just wanting to know if we sell raw milk, the answer is always no right now,” Yates said. “So we know there’s a demand for it. It’s just, even though it is a state law now, we can’t be hung out there liable for everything with no coverage.”

While the bill had wide support from Republicans during the regular legislative session earlier this year, a few lawmakers on both sides of the aisle argued against a prior version of the bill that included language that would have made 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. The bill ultimately became law without that language.

Earlier this year, a spokeswoman for the Department of Agriculture said that thus far, no foodborne illnesses associated with raw milk herd shares had been reported by citizens, herd share participants, public health entities or private physicians.

According to the state Department of Health, over the past 10 years West Virginia has averaged 3.9 foodborne illnesses per year among people who reported raw milk as an exposure. Since 2016, the state has investigated a single suspected outbreak involving raw milk.

Del. Michael Hornby, R-Berkeley, the lead sponsor of the bill, said he was OK with the liability exemption language being taken out of the final version of the bill.

“There is no real precedent for having that original language as strong as it was in that bill,” Hornby said. “…For most farmers that I’ve talked to, it hasn’t been an issue because most people who are buying raw milk directly from a farm understand they’re buying raw milk, and there’s not a lot of people that get sick off of it anyway.”

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