Got (Raw) Milk? You Can Now, Thanks to the First Amendment

Despite the variety of milks available to us at the grocery store, you probably did not know you could buy raw milk in the state of Kansas—and for good reason.  Under an obscure 1967 law, Kansas dairies were forbidden from advertising raw milk beyond their premises.  Specifically, K.S.A. § 65-771(cc) states direct farm-to-consumer milk sales are permissible “so long as the person making such sales does not promote the sale of milk or milk products to the public in any manner other than by the erection of a sign upon the premises of the dairy farm.”¹

Advertisements for raw milk constitute what is known as commercial speech.  Historically, commercial speech was not afforded protection under the First Amendment.²  It was not until the 1970s—after K.S.A. § 65-771(cc) was enacted—that the United States Supreme Court began to reconsider.³ Commercial speech, however, still does not enjoy the full First Amendment protections afforded to noncommercial speech.

Kansas farmers Mark and Coraleen Bunner challenged Kansas’s so-called Raw Milk Advertising Ban using these principles of free speech.⁴ The Bunners filed suit for declaratory relief in Shawnee District Court, claiming K.S.A. § 65-771(cc) violated their First Amendment rights.⁵  As the named defendant, Mike Beam, Secretary of the Kansas Department of Agriculture, did not attempt to defend the statute, and simply stated there was “no plausible legal defense.”⁶ The Shawnee District Court entered a consent judgment enjoining the Kansas Department of Agriculture from enforcing the statute.⁷  The court held the statute violated the First and Fourteenth Amendment, as well as § 11 of the Kansas Bill of Rights.⁸  Even though K.S.A. § 65-771(cc) is still technically on the books, the Kansas Department of Agriculture “look[s] forward to the opportunity to clarify this statute and remove the unconstitutional restriction on advertisement of raw milk.”⁹

While the right to advertise raw milk is likely a right to be exercised by few, it is nevertheless a constitutional right. The Bunners’ case reminds us that actual restrictions on constitutional rights should be challenged—no matter how trivial they may seem to others.

1. Kan. Stat. Ann. § 65-771(cc) (2018).
2. See Valentine v. Chrestensen, 316 U.S. 52 (1942).
3. See, e.g., Bigelow v. Virginia, 421 U.S. 809 (1975); Va. State Pharm. Bd. v. Va. Citizens Consumer Council, Inc., 425 U.S. 748 (1976).
4. Bunner v. Beam, No. 2019-CV-000785 (Shawnee Cty. Dist. Ct., Nov. 6, 2019), https://ag.ks.gov/docs/default-source/documents/raw-milk-consent-judgment.pdf?sfvrsn=2640ad1a_2 (order granting permanent injunction).
5. Id.
6. News Release, Kan. Dep’t of Agric., Kansas Attorney General, Secretary of Agriculture Settle Raw Milk Advertising Lawsuit (Nov. 6, 2019), https://agriculture.ks.gov/news-events/news-releases/2019/11/06/kansas-attorney-general-secretary-of-agriculture-settle-raw-milk-advertising-lawsuit.
7. Bunner, No. 2019-CV-000785.
8. Id.
9. News Release, supra note 6.