Court Agrees With Florida: Skim Milk Is “Imitation Milk Product” Unless You Add Vitamins

Last year, we told you of a long-running dispute over a Florida state law that says skim milk must be categorized as “imitation milk product” unless the dairy adds vitamins to the final product. This week, a federal court finally chimed in on the matter, upholding the state regulation.

This case goes back to 2012, when a company called Ocheesee Creamery found out from the Florida Department of Agriculture that — because Ocheesee didn’t add any vitamins to its skim milk — it would have to be labeled as a “Non-Grade ‘A’ Milk Product, Natural Milk Vitamins Removed.”

The state contends that some vitamins and nutrients are removed when the cream is skimmed off of whole milk, and so skim milk must re-introduce those items to be nutritionally equal to milk. The Ocheesee folks counter that they should not be forced to introduce additives to their skim milk.

There are also federal standards with regard to replacing nutrients that have been removed from a product, but they only apply to milk sold for interstate commerce. The milk in this case was only intended for sale in Florida.

In 2014, the creamery filed a lawsuit [PDF] against the state, arguing that its First Amendment rights were being violated. By forcing Ocheesee to either add vitamins or accept the “imitation milk product” designation would “confuse and mislead its customers by mislabeling its safe, all-natural, pure skim milk.”

The U.S. Supreme Court ruling in Central Hudson Gas v. Public Service Commission of NY established a multi-part test for determining when government restrictions on commercial speech violate the First Amendment:

Does the government have a substantial interest in restricting that speech? Does that restriction directly advance the government’s interest? Is the restriction only as extensive as it needs to be to serve that interest? And is the speech being restricted misleading or concern an unlawful activity?

In granting summary judgment [PDF] in favor of the state, the judge notes that state and federal regulations regarding “standards of identity and nutrition standards for foods easily pass muster under Central Hudson.”

That would include, explains the court, the state and federal requirements regarding skim milk.

“A state can recognize — and indeed deliberately create — a standard meaning of a term used to describe a food product, including, in this instance, skim milk,” writes the judge.

Ocheesee had argued in court that it had sold its skim milk for years without complaint or problems, and that its conception of skim milk — literally, milk that has had the fat skimmed off — is what most people understand the term to mean.

The judge agreed that it is “undoubtedly true that a typical consumer would think ‘skim milk’ is simply milk from which the cream has been skimmed.” However, counters the court, that only serves to indicate that these identity and nutrient standards work.

“[C]onsumers take for granted the nutritional value of skim milk without even knowing that the vitamins have been restored,” explains the judge. “The record includes a survey that confirms this conclusion: most consumers buy milk for its nutritional value, and most expect skim milk to include the same vitamin content as whole milk.”

The judge contends that if you accepted Ocheesee’s argument that the everyday consumer’s understanding of a product makes it okay to disregard state and federal standards, it would “would initiate a frontal assault on the Federal Food, Drug, and Cosmetic Act and its state counterparts, whose validity was established long ago.”

And, concludes the court, even if Ocheesee were not misleading consumers by labeling its product “skim milk,” the state regulations would still withstand the remaining three-point test under Central Hudson.

“The governmental interest in establishing a standard of identity and nutritional standards for milk is substantial,” explains the judge. “The challenged restriction directly advances that interest; indeed, the match is nearly perfect. And the restriction is not more extensive than is necessary to serve that interest; a standard of identity works only if products that do not meet the standard cannot appropriate the identity.”

As you’d expect, the folks at Ocheesee were not pleased with the ruling.

“I just want to tell the truth,” says creamery owner Mary Lou Wesselhoeft. “Our skim milk was pure skim milk, and nobody was ever confused when we called it skim milk. I refuse to lie to my customers, so I have stopped selling skim milk until I am allowed to tell the truth again.”

The creamery was represented in this case by the Institute for Justice, which says it plans to appeal the ruling.

“Businesses have the right to tell the truth and the government does not have the power to change the dictionary,” explains IJ Florida Office Managing Attorney Justin Pearson in a statement.