Raw Milk Consumption: A Consensual Crime

May 13, 2010

Raw Milk Consumption: A Consensual Crime

The St. Louis Post-Dispatch recently published an article that synthesizes the arguments for and against raw milk consumption.

It strikes me that the debate over the appropriateness of raw milk consumption is a natural application of the general principle in Ain’t Nobody’s Business if You Do: The Absurdity of Consensual Crimes in Our Free Society, by Peter McWilliams, which we recently read for the Show-Me Institute’s book club. His central idea is the following:

You should be allowed to do whatever you want with your own person and property, as long as you don’t physically harm the person or property of a nonconsenting other.

It should not be the role of government to protect individuals from their own actions, such as consuming raw milk. Consumers of raw milk are rational, consenting adults. They can judge for themselves the costs and benefits associated with consuming milk that is unpasteurized. A person may harm himself by drinking raw milk (just as he may harm himself by drinking pasteurized milk), but he does not harm others by doing so.

Furthermore, it should not should not be the role of government to instruct individuals about which products are appropriate to consume and to produce, and which behaviors are appropriate to engage in, provided they do not hurt other individuals. Individuals who desire to buy raw milk should have the freedom to do so, and dairy farmers who want to produce and sell raw milk should similarly be free to do so.

As an unintended negative consequence, prohibiting the sale of raw milk will be ineffective at stopping its consumption; instead, it will drive such consumption underground and encourage real crimes. Raw milk bans will increase search and transaction costs for the consumer — they could join a raw milk club, travel to a state that permits it, or buy the product disguised with a misleading label.

Sarah Brodsky has written previously about the laws related to raw milk consumption. McWilliams would disagree that the consumption of raw milk should be illegal. From his book:

People often use the word legal too loosely. They fail to give sufficient thought as to what legal and illegal really mean. When we say a given activity should be illegal, what we’re saying is that if someone takes part in that activity, we should put that person in jail. When it comes to consensual crimes, however, when people say, “It should be illegal,” what they usually mean is, “That’s not right,” “That’s not a good idea,” or “That’s immoral.” When using the word illegal, it’s important to remember how forceful the force of law truly is. We are all entitled, of course, to our opinions about certain activities, but do we really want to lock up people who don’t go along with our opinions?

Parenthetically, from the article, I suspect that raw milk bans could be motivated by rent-seeking behavior. Producers of pasteurized milk could encourage banning raw milk as a means to create a barrier to entry to the market:

To some, new legislative efforts to relax raw milk laws could encourage more producers in the struggling dairy industry to get into the raw milk game[.]

Similarly, bans on the production and sale of raw milk discourage small farms from entering and operating in the market, and they favor larger firms that currently operate in the market and possess the resources to pasteurize their product.

« Read Previous Entry Read Next Entry »

6 Wordpress Comments »

I’ve always said the FDA was in the pocket of Franz Von Soxhlet. Is there a way to protect consumers from possibly unsafe products besides Caveat Emptor and individual liberty?

Comment by David C. Miller — May 13, 2010 @ 1:05 p.m.
[...] Is raw milk about “consensual crimes”? Jump to Comments Here’s a recent analysis from the “Show Me Daily” blog: [...]

Pingback by Is raw milk about “consensual crimes”? « The Bovine — May 14, 2010 @ 10:30 a.m.
I completely agree with your sentiment regarding “consensual crimes.” The problem with applying this idea to raw milk is that, contrary to your assertion in this post, not all raw milk consumers are “rational, consenting adults.” Consenting adults may be the ones purchasing raw milk, but what about when they proceed to feed this milk to their children, neighbors and friends? If someone feeds raw milk to a child there can be no legal consent, and if someone gives their neighbor a glass without remembering to mention that its unpasteurized, that neighbor does not have the opportunity to make an informed choice. Now obviously there’s no malice involved in serving raw milk to your friends and family, but the sad reality is that if you accidentally serve raw milk to somebody with a compromised immune system (e.g. someone who has been on chemotherapy), you can put them into serious harm’s way.

Of course, this doesn’t mean we should necessarily ban raw milk. For one thing, you’re absolutely right that an outright ban would only create a larger unregulated and therefore less safe market. For another, there are many other foods (I’m thinking of common allergens like peanuts and shellfish) that can make some people seriously ill if they consume them unknowingly, yet nobody every seriously discusses a “peanut ban.”

Again, I think that the consensual crime argument – i.e. that informed, consenting adults should be able to eat and drink whatever they please, whether that’s a rare steak, a glass of raw milk, or some funky looking leftover that’s been in the back of the fridge for three weeks – is quite reasonable. Nonetheless, it doesn’t apply perfectly to raw milk or food products in general. In other cases where personal freedoms butt up against public health prerogatives, as with tobacco and alcohol, there are regulations governing who can purchase these products (adults) and who these consumers can share them with (other adults). Perhaps a similar solution could work for raw milk?

Patrick
http://foodinamerica.wordpress.com

Comment by Patrick — May 14, 2010 @ 12:50 p.m.
[...] a comment » Show Me Daily has an interesting piece up now that applies something called the “consensual crime” [...]

Pingback by Raw Milk and the “Consensual Crime” Argument « Food In America — May 14, 2010 @ 1:04 p.m.
If you accidentally serve raw milk to a person who has a compromised immune system, then that person is not informed. I like the analogy that you presented with peanuts and shellfish. Practically every product or service is associated with risks, and not all of them are regulated.

It’s true that the government regulates which individuals can purchase certain products and share them, such as cigarettes and alcohol. However, there are many products that pose even greater risks that the government does not regulate–does this signify that such products are appropriate to consume? It would be infeasible (and inappropriate) for the government to list exactly which foods an individual may consume, and which he may not. McWilliams provides the example of Drano.

Why should cocaine be illegal and Drano not? Whether snorted, swallowed, or injected, Drano is far more harmful than cocaine. And yet Drano is available in every supermarket. Children can buy Drano. No one asks, “What are you doing with this Drano? You’re not going to snort it, are you?”) There is also no “Drano law” that prohibits us from ingesting Drano nor a Drano Enforcement Agency (DEA) to enforce the law. Nor is there an Omnibus Drano Act designed to reduce the international use and trafficking of Drano.

I agree that there are additional implications relating to children. In the book, McWilliams makes a point that consensual crimes are between adults, and that children have not reached the age of consent.

Being an adult, in fact, can be defined as having reached the “age of consent”—we become responsible for our choices, our actions, our behaviors. (Nothing in this book refers to children. Children have not yet reached the age of consent. This book discusses only activities between consenting adults.) [...]

Children are too young to give their knowing consent; that, by definition, is why they are children. If children are genuinely being harmed, it is the job of the government to remove them from the harmful environment.

Comment by Christine Harbin — May 17, 2010 @ 12:20 p.m.
Christine,

I hope you had fun with your travels. Here’s some news from our home state:

Doyle wavers on signing raw milk bill

I still don’t know how I feel about this. Maybe dairy inspections can make this safe enough. Maybe there’s a third way besides outright banning and liability-waivers that lets people drink raw milk if they want safely. And maybe a regulated market is better than an unregulated black market. But if raw milk by its very nature is grossly unsafe, I have no qualms with banning it.

I’m still a little leery of the adage ‘You should be allowed to do whatever you want with your own person and property, as long as you don’t physically harm the person or property of a nonconsenting other’, but that’s due to my religious upbringing that you don’t share- ask Sol about it. Luckily, this hypothetical situation seldom arises in reality: no man is an island. If you get sick from drinking raw milk, that affects other people- if you are hospitalized it costs me money (remember Bastiat?), and people may not drink even pasteurized milk because they are scared.

Again, the two most popular objections to the raw milk ban are public health and public trust in the dairy industry. These two objections are based on the claim that nonconsenting others are indeed harmed when someone consumes raw milk. So how far do ‘Consensual Crimes’ take us?

I’m also very skeptical of how truly informed people are when they drink raw milk. There are way too many cranks out there who claim raw milk has fantastic micro-nutrients that can solve problems like asthma or autism. If someone gets sick, can’t they just claim that they were misinformed?

Comment by David C. Miller — May 19, 2010 @ 2:30 p.m.

RSS feed for comments on this post. TrackBack URL

Or you can use our new Facebook commenting system!

Categories

I’ve always said the FDA was in the pocket of Franz Von Soxhlet. Is there a way to protect consumers from possibly unsafe products besides Caveat Emptor and individual liberty?

Comment by David C. Miller — May 13, 2010 @ 1:05 p.m.

[...] Is raw milk about “consensual crimes”? Jump to Comments Here’s a recent analysis from the “Show Me Daily” blog: [...]

Pingback by Is raw milk about “consensual crimes”? « The Bovine — May 14, 2010 @ 10:30 a.m.

I completely agree with your sentiment regarding “consensual crimes.” The problem with applying this idea to raw milk is that, contrary to your assertion in this post, not all raw milk consumers are “rational, consenting adults.” Consenting adults may be the ones purchasing raw milk, but what about when they proceed to feed this milk to their children, neighbors and friends? If someone feeds raw milk to a child there can be no legal consent, and if someone gives their neighbor a glass without remembering to mention that its unpasteurized, that neighbor does not have the opportunity to make an informed choice. Now obviously there’s no malice involved in serving raw milk to your friends and family, but the sad reality is that if you accidentally serve raw milk to somebody with a compromised immune system (e.g. someone who has been on chemotherapy), you can put them into serious harm’s way.

Of course, this doesn’t mean we should necessarily ban raw milk. For one thing, you’re absolutely right that an outright ban would only create a larger unregulated and therefore less safe market. For another, there are many other foods (I’m thinking of common allergens like peanuts and shellfish) that can make some people seriously ill if they consume them unknowingly, yet nobody every seriously discusses a “peanut ban.”

Again, I think that the consensual crime argument – i.e. that informed, consenting adults should be able to eat and drink whatever they please, whether that’s a rare steak, a glass of raw milk, or some funky looking leftover that’s been in the back of the fridge for three weeks – is quite reasonable. Nonetheless, it doesn’t apply perfectly to raw milk or food products in general. In other cases where personal freedoms butt up against public health prerogatives, as with tobacco and alcohol, there are regulations governing who can purchase these products (adults) and who these consumers can share them with (other adults). Perhaps a similar solution could work for raw milk?

Patrick
http://foodinamerica.wordpress.com

Comment by Patrick — May 14, 2010 @ 12:50 p.m.

[...] a comment » Show Me Daily has an interesting piece up now that applies something called the “consensual crime” [...]

Pingback by Raw Milk and the “Consensual Crime” Argument « Food In America — May 14, 2010 @ 1:04 p.m.

If you accidentally serve raw milk to a person who has a compromised immune system, then that person is not informed. I like the analogy that you presented with peanuts and shellfish. Practically every product or service is associated with risks, and not all of them are regulated.

It’s true that the government regulates which individuals can purchase certain products and share them, such as cigarettes and alcohol. However, there are many products that pose even greater risks that the government does not regulate–does this signify that such products are appropriate to consume? It would be infeasible (and inappropriate) for the government to list exactly which foods an individual may consume, and which he may not. McWilliams provides the example of Drano.

Why should cocaine be illegal and Drano not? Whether snorted, swallowed, or injected, Drano is far more harmful than cocaine. And yet Drano is available in every supermarket. Children can buy Drano. No one asks, “What are you doing with this Drano? You’re not going to snort it, are you?”) There is also no “Drano law” that prohibits us from ingesting Drano nor a Drano Enforcement Agency (DEA) to enforce the law. Nor is there an Omnibus Drano Act designed to reduce the international use and trafficking of Drano.

I agree that there are additional implications relating to children. In the book, McWilliams makes a point that consensual crimes are between adults, and that children have not reached the age of consent.

Being an adult, in fact, can be defined as having reached the “age of consent”—we become responsible for our choices, our actions, our behaviors. (Nothing in this book refers to children. Children have not yet reached the age of consent. This book discusses only activities between consenting adults.) [...]

Children are too young to give their knowing consent; that, by definition, is why they are children. If children are genuinely being harmed, it is the job of the government to remove them from the harmful environment.

Comment by Christine Harbin — May 17, 2010 @ 12:20 p.m.

Christine,

I hope you had fun with your travels. Here’s some news from our home state:

Doyle wavers on signing raw milk bill

I still don’t know how I feel about this. Maybe dairy inspections can make this safe enough. Maybe there’s a third way besides outright banning and liability-waivers that lets people drink raw milk if they want safely. And maybe a regulated market is better than an unregulated black market. But if raw milk by its very nature is grossly unsafe, I have no qualms with banning it.

I’m still a little leery of the adage ‘You should be allowed to do whatever you want with your own person and property, as long as you don’t physically harm the person or property of a nonconsenting other’, but that’s due to my religious upbringing that you don’t share- ask Sol about it. Luckily, this hypothetical situation seldom arises in reality: no man is an island. If you get sick from drinking raw milk, that affects other people- if you are hospitalized it costs me money (remember Bastiat?), and people may not drink even pasteurized milk because they are scared.

Again, the two most popular objections to the raw milk ban are public health and public trust in the dairy industry. These two objections are based on the claim that nonconsenting others are indeed harmed when someone consumes raw milk. So how far do ‘Consensual Crimes’ take us?

I’m also very skeptical of how truly informed people are when they drink raw milk. There are way too many cranks out there who claim raw milk has fantastic micro-nutrients that can solve problems like asthma or autism. If someone gets sick, can’t they just claim that they were misinformed?

Comment by David C. Miller — May 19, 2010 @ 2:30 p.m.

May 13, 2010