The state legislature directed the Texas Department of State Health Services (TDSHS) to write the new regulations in order bring Texas in line with regulations in other states. Chris Van Deusen, a spokesman for TDSHS, said the rules were prompted by a rapid increase in the number of cheese producers in the state. Producers have until the end of the year to comply with the new regulations.
"We needed a better and more consistent way to regulate producers of dairy products in order to protect the public health," Van Deusen said. "The bill passed in the legislature required us to align our regulations for cheese and butter with national standards. Each producer already has an inspector, and they can work with their inspector, who can help them get the new license."
One of the new regulations requires that "construction and maintenance of driveways and adjacent plant traffic areas shall be of concrete, asphalt or similar materials to keep dust and mud to a minimum." The new regulations also require that each phase of the cheesemaking process -- starting, making, drying, paraffining, cooling or curing, cutting and packaging -- be done in separate rooms or "in separate areas within one room." The regulations also require stainless steel cheese presses and places additional restrictions on the transportation of milk for future processing.
Mark Burow, who owns and operates Water Oak Dairy in Robertson County, said complying with all the regulations could put him out of business. He said the new regulations seem to be a solution in search of a problem.
"We've never had a public health problem with these kinds of products," Burow said. "It's nonsensical. It could put 30 or more family farms out of business."
Ben Godfrey, who has run Sand Creek Dairy in Milam County for about seven years, also produces yogurt and cheese along with beef, pork, eggs other products in addition to milk. He said no one has a clear understanding of how the regulations will be interpreted or enforced.
"It's really vague now as to what's going to happen," he said. "I hope we can work with our inspector to get a lot of this ironed out. All the state people I've talked to have been not only fair, but even helpful. I know a lot of farmers are anti-state or whatever, but I haven't had any bad experiences with them. All the state people I've worked with have been very reasonable."
LeeAnne Carlson with Swede Farms in Waller County said she too is hoping for a reasonable approach by the state to the new regulations. She said she and her husband Tim have always been able to do what they do with two licenses, one for the milk and another for the cheese and yogurt they produce on the farm.
"A very strict or rigid interpretation of the new laws would be very problematic for the small producer," she said. "It would probably force us to quit making cheese and yogurt. As it is, it's still another $800 for additional licensing. That may not seem like a lot of money, but it is if you're running a farm and raising kids."
Judith McGeary, an attorney and director of the Farm and Ranch Alliance, which advocates for small farmers and ranchers, sent written comments on the new regulations to TDSHS late last year. In the letter, she said that the regulatory costs would be too much for many of the state's cheesemakers to bear.
McGeary said that cheesemakers who end up facing undue hardships because of the regulations have a couple of options but one -- challenging the regulations in court -- would likely not be successful.
"A challenge would be unlikely to succeed, given the deference given to agency rulemaking," she said. "The other option is to seek a political solution in 2011 legislative session. The cheesemakers could seek to have the 2007 law amended to create an exemption, based on the burdens that have been created by these regulations."
In the meantime, Burow has formed the Texas Artisan Cheesemakers Guild to bring cheesemakers together on the issue. He said of the 10 associates in the guild, three of them knew nothing of the new regulations.
"This comes at a time when my sales are increasing and I'm able to reach farther into the marketplace," he said. "It's taken this long to show a profit. This is not a good time to pick up another $100,000 in debt."
