Non-Fortified Skim Milk is Skim Milk, Eleventh Circuit Holds
The U.S. Court of Appeals for the Eleventh Circuit has overturned a Florida court’s summary judgment against Ocheesee Creamery, finding that the company can sell its milk product as skim milk despite its refusal to follow a Florida law requiring skim milk to be fortified with vitamin A. Ocheesee Creamery LLC v. Putnam, No. 16-12049 (11th Cir., order entered March 20, 2017). Additional details on the lower court’s rulings appear in Issues 555 and 599 of this Update.
Florida initially told Ocheesee that it could sell its skim milk as “imitation skim milk,” but Ocheesee objected to the description of its natural, unfortified milk as “imitation.” Ocheesee rejected other suggested labels as well, including “Non-Grade ‘A’ Milk Product, Natural Milk Vitamins Removed,” then filed a lawsuit asserting a First Amendment right to describe its product as “skim milk.” The lower court granted summary judgment in favor of Florida, finding that “skim milk” is inherently misleading if the product does not have the same vitamin content as whole milk.
Analyzing Ocheesee’s free speech claims, the Eleventh Circuit found that while a state can propose a definition for a term, “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.”
“All a state would need to do in order to regulate speech would be to redefine the pertinent language in accordance with its regulatory goals,” the court stated. “Then, all usage in conflict with the regulatory agenda would be inherently misleading.” Citing a dictionary’s definition, the court found that “[c]alling the Creamery’s product ‘skim milk’ is merely a statement of objective fact,” which is “not inherently misleading absent exceptional circumstances.”
“This is not to say that a state’s definition of a term might not become, over time and through popular adoption, the standard meaning of a word, such that usage inconsistent with the statutory definition could indeed be inherently misleading,” the court noted. “But the state must present evidence to that effect, and that has not been done here.” Accordingly, the appeals court vacated the judgment and remanded the case to the district court.
Issue 628
