Florida Creamery Loses First Amendment Challenge to “Skim Milk” Standard of Identity and Labeling Requirements

A Florida federal court has rejected a Florida dairy farmer’s challenge
to the state’s standard of identity for skim milk, which dictates that its
nutrient content must be the same as that of unfortified whole milk,
requiring the addition of vitamin A after processing. Ocheesee Creamery
v. Putnam, No. 14-0621 (N.D. Fla., Tallahassee Div., order entered March
30, 2016). The farmer’s company, Ocheesee Creamery, skimmed the
cream from milk and sold the leftover product as “skim milk” without
fortifying it with vitamin A. Florida inspectors told the dairy farmer she
must adjust the nutrient level or label the milk “imitation,” and she filed
a lawsuit challenging the rule. Additional details on the case appear in
Issue 555 of this Update.

The court found that the state standard of identity and its federal counterpart
in the federal Food, Drug, and Cosmetic Act “easily pass muster”
under the First Amendment test for commercial speech. “Ocheesee cites
dictionary definitions that describe skim milk as precisely what Ocheesee
sells: milk from which the cream has been skimmed,” the court notes.
“And it is undoubtedly true that a typical consumer would think ‘skim
milk’ is simply milk from which the cream has been skimmed. Far from
a condemnation of the standard of identity and nutritional standards
for skim milk, these sources show how well the standard of identity
and nutritional standard have worked: consumers take for granted the
nutritional value of skim milk without even knowing that the vitamins
have been restored.”

Issue 599