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Skim Milk In Florida Is Now Skim Milk.

Milk-ROH Almost a year ago, we wrote about the curious case of a Florida creamery (dairy) who was barred by the state of Florida from calling its skim milk, “skim milk.”

The Ocheesee Creamery is a dairy who believes in all natural products. The dairy ran into trouble when they went to sell their all natural, nothing added skim milk.

Skim milk is made by “skimming” the cream off of whole milk. Long before there was anything like the Food and Drug Administration or the Florida Department of Agriculture, that is the way skim milk was made. However, the cream from the milk contains oil soluble vitamin A. Because of that, the Florida Department of Agriculture followed the rules of the FDA and said that if you want to sell “skim milk,” you have to add vitamin A back into the milk.

Ocheesee Creamery, being a “natural dairy,” didn’t want to add anything to their milk. They felt the milk should be able to be sold.

After selling the natural skim milk within the borders of Florida for 3 years, in 2010 the company received an order from the Florida Department of Agriculture to either add vitamin A to the milk or stop selling the milk altogether. After some negotiations, the Florida Department of Agriculture said the creamery could sell the natural skim milk if the company labeled it as an “imitation milk product.”

(Think about that for a moment. The state demanded that the creamery call natural milk with nothing added an “imitation milk product.”

The creamery proposed to label the skim milk in one of five ways:

(1) PASTEURIZED SKIM MILK, NO VITAMIN A ADDED;
(2) PASTEURIZED SKIM MILK, NO LOST VITAMIN A REPLACED;
(3) PASTEURIZED SKIM MILK, MOST VITAMIN A REMOVED BY SKIMMING CREAM FROM MILK;
(4) NON-GRADE A SKIM MILK, SOME MILK VITAMINS REDUCED BY SKIMMING CREAM FROM ALL NATURAL PASTEURIZED MILK
(5) THE STATE REQUIRES US TO CALL THIS: NON-GRADE A MILK PRODUCT, NATURAL MILK VITAMINS REMOVED.
IT IS ALL-NATURAL SKIM MILK WITH SOME VITAMIN A REMOVED BY SKIMMING CREAM FROM MILK.

The State rejected those labels and counter proposed the label:

“Non Grade “A” Milk Product, Natural Milk Vitamins Removed.’ All natural milk product with vitamins removed by separating cream from milk.”

The Creamery rejected that label and decided in late 2014 to sue the State of Florida on First Amendment grounds.

The District Court ruled for the State, saying that the State had the right to demand that the Creamery call the milk what the State wanted.

The Creamery, along with the Institute for Justice, appealed.

This past week, the Eleventh Circuit ruled for Ocheesee Creamery.

The State’s position was that as it defined what “skim milk” is under the law, anything labeled “skim milk” that does not meet the definition (such as not adding vitamin A,) is misleading to the consumer. The Court rejected that idea:

As the court noted in its decision today, “It is undoubtedly true that a state can propose a definition for a given term. However, it does not follow that once a state has done so, any use of the term inconsistent with the state’s preferred definition is inherently misleading.” Otherwise, the court noted, “[a]ll a state would need to do in order to regulate speech would be to redefine the pertinent language in accordance with its regulatory goals. . . . Such reasoning is self-evidently circular.”

It is important to note that the Court also slapped the State by reminding them that the State has a burden to show that they should restrict speech in a certain manner. In this case, the State claimed the use of the term “skim milk” by the creamery was misleading but offered no proof to that assertion. This is an important point to remember as we have heard plenty of government officials say they want to restrict a right because of some perception they have but never proven to be true.

The Court also said that there were “less burdensome alternatives” to banning the term “skim milk” and requiring the Creamery to call the milk an “imitation milk product.” The Court noted that the labels proposed by the Creamery would have accomplished the goal of allowing customers to know that the naturally processed skim milk did not have vitamin A added. This aligns with the principle that if the State is going to restrict speech, it must do so in the least restrictive manner.

In this case, it is clear that the Florida Department of Agriculture was just acting like a bully. Non-elected officials refused to work with Ocheesee Creamery to resolve the issue or at least come to a compromise. Instead, the State simply tried to force a company to say that milk was not milk. It tried to force a company to lie to consumers.

The sad thing is that this case cost Florida taxpayers lots of money – money that was spent on something that never should have happened to begin with.

In the end, Ocheesee Creamery won their case, but taxpayers lost and most of all, we doubt if anyone in the Florida Department of Agriculture, much less the rest of the government, learned anything.



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