Court Rules Against State on Skim Milk Labeling

by Jim Saunders, The News Service of Florida

Most shoppers in the dairy aisle probably never give it a lot of thought.

But a battle over the labeling of skim milk led Monday to a federal appeals court siding with a small Calhoun County creamery in a First Amendment fight with the Florida Department of Agriculture and Consumer Services.

The ruling by a panel of the 11th U.S. Circuit Court of Appeals stemmed from Ocheesee Creamery, LLC, which produces all-natural dairy products, wanting to sell additive-free skim milk.

The problem: Florida law bars selling milk products that are not “Grade A,” which requires replacing Vitamin A that is lost in the process of skimming off cream — a process that leaves skim milk, according to the ruling. Because it is an all-natural dairy, Ocheesee Creamery did not want to fortify its skim milk with Vitamin A.
The state in 2012 moved to block sales of skim milk from the creamery, leading to negotiations about getting a permit under a law dealing with imitation milk. The ruling said various alternatives were proposed, such as describing the skim milk as a “milk product.”

The creamery filed a lawsuit in 2014, arguing that the state was violating its First Amendment rights by refusing to allow it to use the label “skim milk.” A federal district court last year granted summary judgment to the state, finding that “it is inherently misleading to call a product ‘skim milk’ if that product does not have the same vitamin content as whole milk,” the appeals court said.

But Monday’s 22-page decision overturned the lower court, saying the record of the case “makes clear that numerous less burdensome alternatives existed and were discussed by the state and the creamery during negotiations that would have involved additional disclosure without banning the term ‘skim milk.’ ” The ruling sent the case back to the district court.

“(The) state was unable to show that forbidding the creamery from using the term ‘skim milk’ was reasonable, and not more extensive than necessary to serve its interest. … The state’s mandate was clearly more extensive than necessary to serve its interest in preventing deception and ensuring adequate nutritional standards,” said the ruling, written by Judge Robin Rosenbaum and joined by Senior Judge Susan Black and Judge David Bryan Sentelle.

In a brief filed in August, attorneys for the state argued that “misbranding” the milk could cause nutritional harm.

“Ocheesee wants to label its product ‘skim milk’ even though it undisputedly fails to meet the standard requiring skim milk to be nutritionally the same as milk,” the state’s brief said. “This is a problem because the state’s unrefuted evidence shows that consumers expect skim milk to meet that standard of identity and would be nutritionally harmed and deceived if what they bought was an inferior product like Ocheesee’s. Maintaining consumer expectations and preventing nutritional harm were exactly why standards of identity were created in the first place, and why courts continually upheld bans on inferior milk products before there was a standard for milk.”

But in a brief filed earlier, attorneys for the creamery wrote that “prohibiting truthful commercial speech and mandating misleading commercial speech violates the First Amendment.”

“Under the First Amendment, the government has no power to require a company to call a product something that it is not,” the brief said. “Just as war is not peace, and freedom is not slavery, pure skim milk is not ‘imitation skim milk.’ “