The 2028 election cycle begins with our first proposed ballot measure… on raw milk!
On Friday, Attorney General Marty Jackley issued a draft title and explanation for an initiated measure sponsored by Brenda Anderson of Busy Ewe Farm & Fibers of Custer. The draft and explanation surprised me, as the Attorney General does not issue a title and explanation until after a sponsor has submitted a first draft to the Legislative Research Council, received the LRC’s review and comment, and submitted a revised draft to the Attorney General, the Secretary of State, and the LRC. SDCL 12-13-25 allowed citizens to start submitting 2028 initiative drafts to the LRC on May 7, but the two and a half months since that opening date, Secretary of State Monae Johnson does not appear to have posted a new webpage for potential 2028 ballot measures. Usually the public gets to see the LRC commentary on the initial draft a couple months before the Attorney General titles and explains the final draft.
But not this time! Jackley’s draft title and explanation also open the strange little ten-day public-comment period, during which the A.G. entertains comment not on the merits of the proposed initiative itself but simply on how well his proposed title and explanation objectively, clearly, and concisely explain the measure and educate the voters as to its purpose and effect. A.G. Jackley will take your comments through August 3 and contemplate them in composing is final title and explanation by August 13.
Anderson’s initiative proposes a dramatic deregulation of direct-to-consumer sales of raw milk and anything made therefrom. “Homemade dairy products” would be exempt from licensing, permitting, inspection, testing, and “related requirements” in statute and administrative rule. Those products would be exempt from packaging, labeling, grading, and other milk/dairy safety requirements except for these two new requirements created by this initiative:
- The producer may sell raw milk and raw milk products directly to end consumers at the producer’s farm or ranch, farmers’ markets, “or any mutally agreed-upon location in this state.”
- Before or at the time of sale, the producer must provide this notice to the end consumer, either on a label on the product or a prominently displayed placard: “This raw diary product is homemade, raw, and unpasteurized. It is not licensed, inspected tested, regulated, or graded by the State of South Dakota. Consume at your own risk.”
The Attorney General’s draft title, “An Initiated Measure Allowing Exceptions for the Direct Sale of Homemade Dairy Products,” and the first sentence of his explanation, “This measure creates an exemption allowing dairy producers to sell homemade, raw dairy products directly to consumers”, seem to miss the point. SDCL 39-6-3 already allows dairy producers to sell directly to consumers. A more accurate title for the petition and the ballot would be, “An Initiated Measure Deregulating the Direct Sales of Homemade Dairy Products”. A more direct explanation topline would be, “This measure exempts homemade dairy products from licensing, permitting, inspecting, testing, and food safety requirements.”
The sponsor and the Attorney General each make one small error. The initiative’s final section, Section 6, makes any violation of its meager requirements “a Class B misdemeanor.” As A.G. Jackley’s explanation notes, South Dakota law does not define “Class B misdemeanor.” Felonies get letters; misdemeanors get numbers, 1 and 2. If sponsor Anderson’s first draft included this inccorect misdemeanor class, LRC would likely have caught it and flagged it. If Anderson added this enforcement clause after LRC comment, she has sandbagged her initiative with a technical error that, to fix, requires her to go back to the first step of the process: resubmit a draft to LRC referring to “Class 2 misdemeanor” (I’m assuming from the deregulatory spirit of the initiative that Anderson wants the less severe misdemeanor), receive comment within 15 days, resubmit a revised draft, receive a new draft A.G. title and explanation within 60 days.
Attorney General Jackley makes his error in his press release. He says, “The initiated measure would require 17,509 valid petition signatures to qualify for the 2028 general election ballot.” Incorrect. The number of signatures required to place initiated measures on the 2024 and 2026 ballots was 17,508. However, the November 3 general election will moot that number. We base our petition signature requirement on the turnout for the gubernatorial election. The number of signatures Anderson and her dairy friends will have to collect to call a statewide vote on raw milk in 2028 will be equal to 1% of the total votes cast on November 3 for Dan Ahlers and the winner of this week’s runoff. Anderson and anyone else interested in circulating an initiative petition for 2028 can’t start collecting signatures until November 7 (exactly two years before the 2028 general election). so we should have a full vote count and signature threshold by then. But right now, the signature requirement is not 17,509.
Related Reading: Anderson offers more information about raw milk and her initiative on the Busy Ewe Farm & Fibers website. That webpage disclaims that “Busy Ewe Farm & Fibers does not currently sell raw milk or dairy products.”