The state Board of Livestock should scrap its rule requiring milk to be sold within 12 days of being pasteurized and let processors set their own dates, a hearing examiner recommended.

"The 12-day rule should be repealed and in its place a rule should be adopted allowing milk processors to set appropriate code dates based on the testing they perform to determine the freshness, palatability, taste, odor and safety of the milk they produce," Helena attorney John Sullivan wrote in his Oct. 27 proposal.

Sullivan's proposal came after a hearing held last year to settle a federal lawsuit that wholesale distributor Core-Mark International of Spokane, Wash., filed seeking to have Montana's sell-by requirements declared unconstitutional. A group called Friends of Montana Retailers and Consumers joined the lawsuit.

The 12-day rule "results in the waste and destruction of perfectly good milk," Sullivan wrote. Witnesses testified that production and processing improvements made since 1980 make a 21-day use-by date the standard for milk in both the United States and Canada.

Sullivan said the 12-day rule effectively prohibits milk from being sold for 43 percent of the time during which it is still fresh and of good quality. He noted that Washington, Oregon, Idaho, Colorado, California, Utah and Nevada are among the states that let milk processors set use-by dates.

Sullivan said some witnesses testified the 12-day rule isn't based on any regulatory need to protect the consumers' safety. The pasteurization process is so effective "in terms of eliminating organisms that milk will become unpalatable in terms of taste and smell before it will cause harm in terms of human safety."

Pat Roylance of Friends of Montana Retailers and Consumers said eliminating the 12-day rule likely would result in more choices for consumers because some processors don't sell their products in Montana. He said milk prices would likely fall "because the 12-day rule requires more frequent deliveries and the destruction of good milk, costs which are passed on to consumers."

The 12-day rule has been an issue in Montana for nearly a decade.

In 2002, Inland Northwest Dairies, a Darigold milk processor, asked the Livestock Department to allow "dual dating" of milk produced at its Spokane plant for distribution in Montana. The board agreed, as long as it followed the 12-day rule for milk sold in Montana.

Six years later, the board rescinded Inland's exemption. Core-Mark, which handled the distribution of Inland's milk in Montana, filed the lawsuit.

Dan Turcotte, chief of the Milk and Egg Bureau of the state Livestock Department, testified before the Board of Livestock in March 2010 in favor of keeping the 12-day sell-by date.

"In my opinion, the present 12-day pull-date rule is most acceptable to the milk-consuming public," he said. "They are accustomed to it and they purchase milk products with a great deal of confidence that it will continue to taste fresh and be of a high quality for a reasonable time after their purchase."

Copyright 2011 The Associated Press.