Got Skim Milk?

Milk-ROHMary Lou Wesselhoeft runs Ocheesee Creamery, a dairy farm in Calhoun County, Florida. As a third generation farmer, Wesselhoeft is committed to natural farming practices and natural products – that is products that do not have anything added to them.

One of the products Ocheesee Creamery sells is skim milk. Skim milk is milk that has the cream from whole milk removed through a “skimming” process, hence the name. Wesselhoeft pasteurizes the all natural skim milk, puts it in old time glass bottles (which she collects a deposit for to make sure the bottles don’t end up in a land fill) and sells it.

But all products need a catchy name or at least a name that is descriptive of what the consumer is purchasing.

Wasselhoeft decided to call the product “Pasteurized Skim Milk.”

It is here the story goes off the rails.

In 2012, Ocheesee Creamery was issued a “stop sale” order by the Florida Department of Agriculture and Consumer Services (DACS.)

DACS issued the order because according to it, Orcheesee Creamery wasn’t selling “skim milk.” It was selling something else.

When the cream is removed from whole milk, much of its nutritional value, specifically vitamin A and vitamin D within the cream are removed as well. Federal regulations require that dairies re-introduce vitamin A and D into the milk before selling it as “skim milk.” The state of Florida adopted the same regulations for milk sold only within the state like the milk of Ocheesee Creamery.

Wesselhoeft objected to this as she believes that adding anything back into the milk is against her principles of “all natural products.” These are principles her customers support as well.

It is not as if Ocheesee Creamery’s skim milk is not healthy. It is not as if the milk has ever harmed anyone. These are facts to which the DACS agrees.

Simply because the skim milk did not have nutrients added to it, the DACS says Ocheesee Creamery cannot sell the milk with the label “Skim Milk.”

The DACS demanded the Creamery call the white stuff in glass bottles, that came from a cow, “Imitation Milk Product.”

It has been a long time since we have milked a cow or tasted fresh milk directly from a cow, but we are pretty sure that when the milk comes out, it is not “imitation milk.”

Wesselhoeft tried to compromise with DACS offering other descriptions and labeling choices for the product. She even included label options saying the skim milk was without vitamins A and D.

DACS rejected them all.

(As we are talking about labels, let us be clear, the decision of the DACS to not allow Wesselhoeft to accurately label and describe the dairy’s product is heifer hockey or meadow muffins. Take your pick.)

In essence, under the guise of “truthful labeling,” DACS is forcing Ocheesee Creamery to lie on their labels and to their customers. Whether the milk has vitamins added back into it does not take away from it being milk. To call the product an “imitation milk product” is a lie that should not stand.

Unfortunately, that lie has stood.

The Institute for Justice (IJ) took the DACS to court over the issue and in what is truly an amazing opinion, the District Court for Northern Florida said the DACS had the statutory authority to demand Ocheesee Creamery label their product in a way the DACS approved of. That means that the Court is essentially saying that the DACS has the authority to make Ocheesee Creamery label their product with a label that misleads consumers. (The actual wording of the label is, according to the Court, not “ripe” for a legal challenge at this time. But make no mistake, the Court is saying that DACS has the authority to label the product as they – not Ocheesee Creamery or the customer – deem right. The heck with the truth.)

The Institute for Justice has said they will appeal to the Eleventh Circuit.

It is hard not to see this case for being an overreach of government authority. There are all sorts of cases where companies have been dinged and fined for misleading customers with misleading product labeling yet here the government is demanding that a natural milk product be labeled as “imitation.” How is that not misleading?

It is Orwellian. Down is up. Wrong is right. Natural is imitation.

If you can figure this out, let us know, because we can’t.

Editor’s note: We want to give a shout out to Shira Rawlinson who is the Assistant Director of Communications at the Institute for Justice. On Friday, we emailed Ms. Rawlinson late in the day and asked if she could supply us a link to the actual Court decision or at least point us in the right direction as we were having difficulties finding it on the Court’s web site. Because it was so late, we fully expected to hear back from Ms. Rawlinson on Monday which would have been fine and more than acceptable to us. We are very aware that we are a small blog in a small corner of the blog-o-sphere and expect to be treated accordingly.

A few minutes later, our email notice “dinged” and there was a response from Ms. Rawlinson with the link to the decision as well as asking if we needed anything else.

We stay in touch with and monitor several groups like the Institute for Justice as inspiration for our posts. Because of people like Ms. Rawlinson, the IJ is one of our favorite groups. We have never had a request denied. We have never been “big dogged” or treated like we were unworthy of a response.

We are not naive. We know that there are media outlets that have much more coverage and readership than we do. Yet we never get that impression from the folks at the Institute for Justice. Not once. Not ever.

The Institute for Justice takes on all sorts of free speech issues. As you can imagine, battling the government is costly. It is costly enough to make it where small clients can get overwhelmed by the resources at the government’s disposal. If the Institute for Justice wins in court but in the process the costs force Ocheesee Creamery (or any client) out of business, it is a Pyrrhic victory. Winning a case against the government that forces you to close your doors is not a good outcome.

The Institute for Justice is a group worthy of support. If you have a few bucks lying around, you should consider throwing them toward the IJ.

After all, you never know when the government will demand that you lie.

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