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Crying over spilled milk

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It's not often that the National Resource Defense Council and the Montana Petroleum Marketers and Convenience Store Association end up on the same side of an issue. But those organizations are both calling upon lawmakers to change a state law that prohibits milk from being sold more than 12 days after pasteurization. The groups argue that the rule is rooted in antiquated science and is wasteful, ultimately driving up prices for consumers.

"There's nothing I can do with (milk carrying an expired sell-by date), except dump it," said Earl Allen of Noon's Food Stores, while addressing state legislators who convened to deliberate the issue last week.

Among the problems with the 34-year-old rule, repeal proponents say, is that advancements in technology now enable milk to stay safe and palatable for as many as 21 days after pasteurization. The NRDC's Dana Gunders wrote in October that Montana's rule "demonstrates how ridiculous these laws can be."

In September, California milk distributor Core-Mark International took the debate to the Montana Supreme Court, arguing that the rule is arbitrary and that the Montana Department of Livestock, which is responsible for the regulation, abused its power. The DOL had overruled the recommendations of an independent hearings examiner, who in 2011 found the law "inconsistent with consumer needs and practices today." The hearings examiner recommended that milk producers be allowed to recommend their own "best if used by" dates.

Repeal proponents argue that waste resulting from the rule is driving up milk prices. A poll conducted by the Independent of Safeway stores in Idaho, Wyoming and Montana found that prices are, in fact, higher in Montana. A gallon of Lucerne-brand milk in Missoula costs $3.79. In Casper, Wyo., the same product runs $3.09. In Lewiston, Idaho, it's $3.19.

In response to claims that the rule is elevating costs, DOL Executive Officer Christian Mackay says that prices are based on complicated variables that go well beyond sell-by dates. He also noted that repeal proponents have not proven that Montana is wasting more milk than other states.

"How much this 12-day rule really drives the price, I really question," Mackay says.

The Montana Milk Producers Association, which has intervened in the Core-Mark lawsuit on behalf of the DOL, argues further that the Core-Mark litigation constitutes an effort to deregulate Montana's milk market.

Great Falls attorney Mark Meyer, speaking on behalf of Montana Milk Producers, alleges also that Core-Mark, which supplies convenience stores, is behind the legislative push to repeal the law. "They're the driving force behind this," Meyers says.

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