Officials in two of the three states probing their first cases of bird flu in dairy cattle this month said their hands are tied after the Food and Drug Administration pleaded with states to ramp up testing and restrictions on potentially infectious raw milk being sold to consumers within their borders.

Wyoming, Iowa and Minnesota announced their first detections of the virus in recent days, becoming the first new states to be added to the USDA’s list of cases in weeks. 

“There are no plans to conduct surveillance of raw milk for H5N1 and there are no plans for restrictions on raw milk sales due to the outbreak,” Derek Grant, a spokesperson for the Wyoming Department of Agriculture, said to CBS News in a statement.

Wyoming and Iowa both have laws that significantly limit state oversight of products like raw milk to “informed end consumers” in the state.

“Because of this, foods sold under the Wyoming Food Freedom Act are not licensed or regulated by the WDA so there is no structure in place to conduct surveillance or place restrictions on sales,” Grant said.

In Iowa, authorities said they are urging producers with sick cows to work with officials to test the cows for bird flu after finding that it spread to cattle and poultry farms. Officials stopped short of saying they would restrict infected farms from selling raw milk.

“Iowa’s raw milk law explicitly precludes the Iowa Department of Agriculture and Land Stewardship from licensing and regulating raw milk dairies,” spokesperson Don McDowell said in a statement.

FDA’s recommendations to states

While raw milk is already prohibited from being sold over state lines, some states have laws that allow its sale within their borders, though several only allow raw milk to be sold on farms.

FDA officials said in a letter last week that cracking down on sales within states was out of their jurisdiction.

“The agency has ensured that our state regulatory partners are aware of our concerns and recommendations, including by sharing and communicating directly, and by making this letter available on our website,” an FDA spokesperson said in a statement, citing “multiple engagements” with states over the issue.

One of the FDA’s recommendations to states is the implementation of surveillance programs that would test for the H5N1 virus on dairy farms selling raw milk to try to “stop the sale of raw milk that may present a risk to consumers.”

While recent research has found signs the virus might also be spreading between cows in the respiratory tract, officials have said for months that droplets of unpasteurized milk teeming with the virus were likely to blame for the majority of spread between cows as well as for spillovers to nearby animals and several cases in humans.

By contrast, the FDA has cited testing showing that pasteurized milk remains safe to consume. Pasteurization is a process that uses heat to kill off dangerous organisms in milk and dairy products. 

The agency also is continuing to allow aged cheese made from raw milk to be sold over state lines, though it is unclear whether the aging process will be enough to curb the risk of the virus in the way it does for other pathogens.

“The FDA is continuing to gather data, conduct testing, and support research related to the safety of dairy products and H5N1 HPAIV, including aged raw milk cheeses,” the spokesperson said.

Raw milk legalization

Not all states with cases say they are unable to regulate sales of raw milk from bird flu-infected cows. The laws in Iowa and Wyoming are different from some of the raw milk laws in other states, several of which give officials authority to regulate the marketplace. 

At least eight states also have pending raw milk bills, according to a database published by the National Conference of State Legislatures.

Minnesota’s agriculture department acknowledged its state law allowed consumers to buy raw milk “in limited circumstances,” but it said that any farms confirmed to have the virus are prohibited from selling raw milk to consumers. 

“Herds affected with the virus are not allowed to sell raw milk direct to consumers because that milk is likely to contain harmful pathogens,” Nicole Neeser, director of Minnesota’s Dairy and Meat Inspection Division, said in a statement.

In Texas, one of the first states to report cases from the outbreak, health authorities are adding the H5N1 virus to their panel of routine surveillance testing of raw milk. Officials will also be conducting targeted testing in regions with infected herds.

“We have started testing raw milk from retail raw dairies that are near (in the same county or in a county adjacent to) a known outbreak of avian flu in commercial producer dairies,” Lara Anton, a spokesperson for the Texas Department of State Health Services, said in an email.

In Ohio, where cases have also been confirmed in dairy cows, officials said the sale of raw milk to consumers is illegal. 

Outside of some “herd-share agreements” where residents go directly to farms to pick up raw milk, Michigan said raw milk cannot be sold to residents in retailers or other stores. 

Undetected dairy cow cases

The FDA’s letter comes as authorities are probing how the virus appears to have shown up in new parts of the country, after a U.S. Department of Agriculture order in April required dairy cattle to be tested for the virus before being moved across state lines.

A USDA spokesperson denied that the new cases were a sign that the testing order was ineffective at stopping the spread to new states, saying that investigations so far have not linked the new cases to interstate cattle shipping.

In Minnesota, the state’s board of health confirmed its recent case had “no interstate movements” before the state’s first outbreak. Minnesota’s agriculture department has been urging dairy producers to test sick cows and take other precautions to curb the spread of the virus.

“Consumers who choose to purchase unpasteurized milk from unaffected farms should discuss biosecurity and testing measures with the dairy farmer,” Neeser said.