Dairy Challenges FDA Skim Milk Labeling on First Amendment Grounds

A Maryland dairy has filed a First Amendment lawsuit challenging a U.S. Food and Drug Administration (FDA) regulation requiring skim milk without vitamins A and D added to be labeled “imitation.” S. Mountain Creamery, LLC v. FDA, No. 18-0738 (M.D. Pa., filed April 4, 2018). According to the complaint, South Mountain Creamery cannot selling its “all-natural, additive-free, pasteurized skim milk” in Pennsylvania because of FDA regulations mandating that skim milk sold in interstate commerce must contain the added vitamins. The creamery asserts that the fat-soluble vitamins dissipate before skim milk reaches the consumer, and FDA’s “own official materials discuss this issue.” According to the complaint, “The effect of the relevant regulations and laws is that any product consisting entirely of skim milk can never be labeled as ‘skim milk’ . . . [it] must be labeled as ‘imitation.’” The dairy alleges that the FDA definition misleads and confuses the public and that “pure pasteurized skim milk without additives still meets the FDA’s requirements for being Grade ‘A.’” The creamery also asserts that it would use labels that indicate the only ingredient is skim milk, that vitamins A and D are removed when cream is skimmed, or that no vitamins have been added or replaced. Such labels would be similar to those used in Florida following a 2017 decision in which the Eleventh Circuit sided with a dairy that filed a free speech challenge to a similar state law.