University of Connecticut OpenCommons@UConn Faculty Articles and Papers School of Law 2017 Regulating Milk: Women and Cows in France Mathilde Cohen University of Connecticut School of Law Follow this and additional works at: https://opencommons.uconn.edu/law_papers Part of the Comparative and Foreign Law Commons, and the Food and Drug Law Commons Recommended Citation Cohen, Mathilde, "Regulating Milk: Women and Cows in France" (2017). Faculty Articles and Papers. 396. https://opencommons.uconn.edu/law_papers/396 +(,121/,1( Citation: Mathilde Cohen, Regulating Milk: Women and Cows in France and the United States, 65 Am. J. Comp. L. 469 (2017) Content downloaded/printed from HeinOnline Mon Oct 22 16:24:49 2018 -- Your use of this HeinOnline PDF indicates your acceptance of HeinOnline's Terms and Conditions of the license agreement available at https://heinonline.org/HOL/License -- The search text of this PDF is generated from uncorrected OCR text. -- To obtain permission to use this article beyond the scope of your HeinOnline license, please use: Copyright Information Use QR Code reader to send PDF to your smartphone or tablet device MATHILDE COHEN* Regulating Milk: Women and Cows in France and the United Statest Animal milk, most commonly cow's milk, is one of the most heavily regulated commodities in both France and the United States. With the increasingpopularity of breastfeeding and the possibility of pumping, freezing, and storing breast milk, a cottage industry has emerged for people wishing to buy, sell, or donate milk produced by humans. Yet the legal landscape for human milk remains inchoate,prompting public health officials and medical professionalsto call for tighter regulation. Animal and human milk are typically viewed as two distinct sub- stances with little in common beyond a name. In contrast, this Article highlights the analogies between the two liquids as well as the female bodies that produce them. To do so, it draws on historical and com- parative perspectives-Franceand the United States; human milk in the twenty-first century and animal milk in the nineteenth and twentieth centuries. Similarpolitical forces and cultural norms are at stake in milk regulation then and now, here and there. More precisely, the Article shows that the campaign for increased oversight of human milk is driven by motivations similar to those which inspired cow's milk reform in the nineteenth century: economics, sexual control, and scientism. Through this regulatory agenda, the providers of milk- human lactating mothers and animal lactating mothers-are com- modified in surprisingly analogous ways. * Professor of Law and Robert D. Glass Scholar, University of Connecticut School of Law. Research Fellow, Centre National de la Recherche Scientifique (CNRS). For helpful conversations and comments on earlier drafts, I am grateful to Bethany Berger, Sara Bronin, John Cogan, Adrienne Davis, Amy DiBona, Elizabeth Emens, Greta Gaard, John Hadfield, Alexandra Lahav, Joseph MacDougald, Jennifer Mailly, Willajeanne McLean, Russell Miller, Sherally Munshi, Sachin Pandya, Joshua Perldeiner, Jacqueline Ross, Peter Siegelman, Saskia Stucki, par- ticipants in the 18th Annual Meeting of the Association for the Study of Law, Culture, and the Humanities, the University of Connecticut Law School Faculty Workshop, the Bocconi University Seminar in Legal Theory and Philosophy, the Max Planck Institute for Comparative Public Law and International Law Workshop, the Washington and Lee School of Law Faculty Workshop, the Washington University School of Law Faculty Workshop, the 2017 Annual Works-in-Progress Comparative Law Workshop, as well as the anonymous reviewers for this Journal.For research assistance, I thank Emilie Dajer-Pascal, Rebecca Oudin-Shannon, Jonathan Lamantia, and the University of Connecticut law library staff, in particular Sarah Cox and Anne Rajotte. Finally, for research support, I am grateful to the Fondation pour les sciences sociales under the auspices of the Fondation de France. T http://dx.doi/org/10.1093/ajcl/avx0l5 © The Author [20171. Published by Oxford University Press on behalf of the American Society of Comparative Law. All rights reserved. For permissions, please e-mail: [email protected]. 469 470 THE AMERICAN JOURNAL OF COMPARATIVE LAW [Vol. 65 INTRODUCTION In Western culture, people have ambivalent attitudes about milk. Animal milk has long been considered, both nutritionally and culturally, a "perfect" food.1 Similarly, human milk 2 is presented in scientific and popular culture as "liquid gold," the ideal source of nutrition and medicine for infants, and even perhaps adults, offer- ing protection against a host of illnesses.3 Yet animal and human milk are also subject to the "yuck factor." With a slight change in con- text or perspective, milk can be demoted from drink of the gods to an object of disgust. Consider a cup full of raw cow's milk.4 Is the whitish, creamy liquid a delicious and nutritious drink or a repulsive substance harboring potentially lethal bacteria? What about human milk bought online from strangers-is it a superior, life-giving fluid or a vile body waste product? This Article proposes a twofold com- parison. On the one hand, I compare animal milk and human milk, two types of bodily substances, which are also foods and which have become cultural objects, if not cult objects. On the other hand, I use comparative law to analogize the way in which two legal systems, the United States and France, regulate milk. Though we usually see them as distinct substances, the stories of animal and human milk are closely connected. The consumption of fresh, fluid milk is a relatively recent phenomenon in human history: "[C]ow's milk began its real life as an American food in the mid-nine- teenth century, primarily as a breast milk substitute for infants and a beverage for weaned children."5 In France too, animal milk con- sumption has been tied to the search for substitutes to breast milk to feed babies.6 In recent years, animal milk has been condemned as 1. ERNA MELANIE DuPuIs, NATURE'S PERFECT FOOD: How MILK BECAME AMERICA'S DRINK 4 (2002); ANNE MENDELSON, MILK: THE SURPRISING STORY OF MILK THROUGH THE AGES 45 (2008); DEBORAH M. VALENZE, MILK: A LOCAL AND GLOBAL HISTORY 48 (2012). 2. Throughout the Article, I use the terms "breast milk" and "human milk" interchangeably though I prefer "human milk" given that all milk is "breast milk," as ecofeminist Carol Adams is known for saying. 3. See, e.g., Katherine Carroll, Body Dirt or Liquid Gold? How the "Safety" of DonatedBreastmilk is Constructed for Use in Neonatal Intensive Care, 44 Soc. STUD. ScI. 466 (2014) (listing some of the benefits of breastfeeding). 4. Throughout the Article, I use the word "cow" as a synecdoche to designate all lactating animals that are exploited by humans for their milk. By extension, much of what is said about cow's milk can be applied to other commonly consumed types of animal milk such as goat, sheep, buffalo, camel, mare, donkey, reindeer, or yak milk. 5. See DUPuIS, supra note 1, at 5. See also Florence Dupont, Le lait du pre romain, in CORPS ROMAINS 115, 122 (Philippe Moreau ed., 2002) (pointing out that milk was considered a "barbarian" food in Rome, only fit for the "uncivilized") (trans- lated by author). 6. See Catherine Rollet, Allaitement, mise en nourrice et mortalit6 infantile en France & la fin du XIXe sicle, 33 POPULATION 1189, 1192 (1978). See also Marie- France Morel, Thgories et pratiques de l'allaitement en France au XVIIIe sicle, 1976 ANNALES DE DRMOGRAPHIE HISTORIQUE 393, 416 (reporting that eighteenth-century French doctors advocated in favor of feeding infants animal milk, which they claimed was far superior to human milk because animals, unlike women, are not subject to passions and vices). 2017] REGULATING MILK a cruel and unhealthy product, 7 while human milk is heralded as a superfood. With the increasing popularity of breastfeeding and the possibility of pumping, freezing, and storing breast milk, a "cottage industry has sprung up facilitating the sale and donation of human breast milk. '8 The primary customers are parents of young babies, be they mothers who, for one reason or another, cannot breastfeed, or fathers, including gay couples, who want their babies raised on human milk.9 There is also an adult customer base, such as those who drink human milk for health, nutrition, or as a fetish. 10 The practice is not without risks. A New York Times article reported a few years ago "that breast milk bought from two popular Web sites was often contaminated with high levels of bacteria."" In light of these dangers, medical professionals in France and the United States advocate for stricter control over human milk production and distri- bution in ways that are reminiscent of dairy regulation. Much like nineteenth-century milk reformers lobbied for a safe cow's milk sup- ply in the cities, 2 twenty-first-century public health officials are call- ing for the regulation of human milk. At first sight, reproductive and sex markets may seem more appropriate comparators for human milk than animal milk. Similar 7. See generally Greta Gaard, Toward a Feminist PostcolonialMilk Studies, 65 AM. Q. 595, 595 (2013) (critiquing the appropriation of women's and animals' milk from a postcolonial perspective). 8. Nicholas Bakalar, Breast Milk Donated or Sold Online Is Often Tainted Study Says, N.Y. TiMEs (Oct. 21, 2013), http://www.nytimes.com/2013/10/21/health/breast- milk-donated-or-sold-online-is-often-tainted-study-says.html. 9. See infra notes 76-79 and accompanying text. Note that while the majority of parents seeking human milk describe their gender as male or female, human milk donors and recipients include persons who would describe themselves as transgender, agender, queer, or as having other forms of gender identity.