Dairy bills, including whole milk in schools, pass overwhelmingly in Pa. State House — all eyes to Senate now

By Sherry Bunting, republished from Farmshine, April 15, 2022

HARRISBURG, Pa. —  It was a good day in the Pennsylvania State Capitol Wednesday (Apr. 13) when a series of dairy bills, including the Whole Milk in Pennsylvania Schools Act, were overwhelmingly voted for final passage, now heading to the State Senate for concurrence.

In final passage of HB 2397 (The Whole Milk for Pennsylvania Schools Act), the vote was nearly unanimous 196 to 2. The bill was circulated in February via cosponsors memo to colleagues and was formally introduced March 17 by Reps. John Lawrence and Clint Owlett with 36 cosponsors in March.

Meanwhile, the Senate’s identical version, SB 1181, was introduced by Sen. Michele Brooks (R-Greenville) with 16 cosponsors on March 30, the day the House bill passed the Ag Committee. The Senate version also received unanimous support in the Senate Ag Committee as in the House and the SB 1181 received second consideration and was re-referred to Appropriations Tuesday (April 12) just before spring recess. A vote is expected when the Senate reconvenes in May.

The bill’s author Rep. John Lawrence (R-Chester County) spoke eloquently to defend the constitutionality of HB 2397 before the vote on the House floor. He cited extensive case law and U.S. Supreme Court decisions showing HB 2397 “passes mustard” and does not run afoul of the supremacy clause, the interstate commerce clause, the 10th amendment of the Constitution or the 1946 Richard B. Russell National School Lunch Act.

The wording of the enabling Richard B. Russell School Lunch Act clearly puts the federal government in the position of “assisting” states, not overtaking them in providing a nutritious school lunch, said Lawrence.

Lawrence chose to make these remarks, citing many relevant Supreme Court decisions on different aspects, to be sure the record reflected this information even though the bill had overwhelming support from colleagues in the House. He said he did so because of the criticism on constitutional grounds coming from outside of the chamber and wanted the verbal record to reflect this information for the press to hear, because they likely wouldn’t read it all if he submitted it for the journal of record.

Lawrence thoroughly and methodically defended its constitutionality, even though the bill already had broad bipartisan support for near-unanimous passage.

“Some in the press contend that this law will run into problems with the Court on the interstate commerce clause,” said Lawrence. On this point, he cited Court decisions that apply in instances where it is based on economic protectionism, whereas HB 2397 is based on a factor completely unrelated to economic protectionism.

“Does this bill burden out of state milk producers? Pennsylvania is not creating a prohibition on milk produced out of the state. One can argue that the federal government has done that,” he explained. “HB 2397 does not discriminate against out-of-state milk. It is adding options, not limiting them. It is giving Pennsylvania schools assurance that they can spend Pennsylvania or local funds for Pennsylvania whole milk. It is the federal government — not Pennsylvania — that has drawn this whole milk line. And the bill makes provisions that if the federal measures again fully smile upon whole milk, then the statute created by House Bill 2397 will sunset.”

Even if 2397 did discriminate, Lawrence cited decisions of the Court that it is valid if for a purpose that cannot be adequately served by reasonable non-discriminatory alternatives. “In this case we do have a valid factor that is totally unrelated to economic protectionism,” said Lawrence, noting that there are at least four valid factors. They are:

1) The primary intent here is to provide nutrient-rich whole milk to the young minds of Pennsylvania school children.

2) It’s the longstanding intent of this body that maintaining our small herd dairy farms is good for the general welfare of the state, said Lawrence: “Many draw a straight line between milk consumption over the last 10 years and the removal of whole milk from schools. There is evidence to back up this claim. The loss of Pennsylvania dairy farms is not solely economic”

3) Parents should have options when it comes to the care of their children, and nothing is more basic to that, than food. “It is indisputable that many reliable studies from top-tier research institutions show the value of whole milk for children who choose to consume it,” said Lawrence.

4) There is a movement toward sourcing consummables closer to their end use. Milk produced and processed in Pennsylvania and sold to a Pennsylvania school is almost always going to have less environmental impact.

A vote in the State Senate is not expected until May when the Senate reconvenes. Back in June 2021, the Senate Majority Policy Committee held a hearing on the federal prohibition of whole milk in schools. I was honored to be among those testifying. (Click here to view hearing here)

Two additional bills introduced by Rep. Lawrence — HB 223 and 224 — received unanimous final passage votes also on Wednesday and were committed to the Senate for concurrence.

HB 223 provides for the creation of keystone opportunity dairy zones to facilitate the economic development of Pennsylvania’s dairy industry through tax credits and incentives for new and expanded dairy processing.

HB 224 provides additional authority to the Pennsylvania Milk Marketing Board to collect and distribute board-established premiums through a milk marketing fund, including other provisions such as auditing.

Also passing the Pa. State House by an overwhelming margin Wednesday were HB 1847, introduced by Rep. Christina Sappey (D-Kennett Square), HB 2456, introduced by Rep. Marci Mustello (R-Butler), and HB 2457, introduced by Rep. Joe Kerwin (R-Schuylkill Haven). HB 1847 would change the name of the Pennsylvania Milk Marketing Board to simply the Pennsylvania Milk Board. HB 2456 provides for expansion of penalties in lieu of suspension, and HB 2457 expands PMMB authority to set testing certification fees.

To be continued in Farmshine next week