In case you weren’t aware, skim milk is a byproduct of cream production.  Skim milk comes into existence when cream is skimmed off the top of milk. It is literally, milk that has had the fat removed through skimming.  As an incidental part of this process, the natural vitamin A present in whole milk is depleted because vitamin A is fat-soluble and removed with the cream. Many manufacturers put vitamin A back into the milk to replace that lost through the skimming process.  Some “all-natural” dairies (creameries) refuse to sell products with additives and thus, to not replace the vitamin A.  That’s where the problem started in this case.  Because Florida has a statute that requires vitamin A be added back into the milk-product to be called “skim milk” and refused to allow an all-natural creamery to call its product “skim milk” when they wouldn’t add the vitamin A back into their product.  

Ocheesee Creamery went to the mat with Florida’s Commissioner of Agriculture and the Florida Bureau of Dairy Industry over the State’s insistence that the creamery call their skim milk something other than skim milk.  In a back and forth with the commission prior to filing suit following the State’s insistence that Ocheesee not use the term, Ocheesee suggested it be allowed to call its product any number of variants including some tongue-in-cheek requests:

  • (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;” or
  • (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.” (my personal favorite)

But the State would not relent given its adherence to the federal requirements that Vitamin A be added back into the product to be sold as “Milk” in Florida.  Otherwise, it can be sold, but only under the title “imitation milk product.”  So, the State demanded that the product Ocheesee made bear the title “imitation milk product” and Ocheesee sued arguing the regulation violated its First Amendment right to free speech.

The federal district court sided with the State, but the 11th Circuit Court of Appeals recently reversed that determination finding for Ocheesee’s interests in holding that the commercial speech protections afforded under the 1st Amendment were abridged here when Florida sought to impose a mandate (calling something imitation milk product simply because artificial vitamins weren’t added back into the milk) that was more extensive than required to accomplish its stated goals of “preventing deception and ensuring adequate nutritional standards.” You can read the opinion in Ocheesee Creamery v. Putnam here.

The heavily footnoted opinion takes into account recent arguments in other circuits regarding whether Sorrell v. IMS Health, Inc., and Reed v. Town of Gilbert have altered the commercial speech jurisprudence under Central Hudson in a way to require strict scrutiny as opposed to the intermediate scrutiny applied in Central Hudson, but ultimately deciding not to address the issue given that under intermediate scrutiny and the Central Hudson factors, Florida’s regulation violated First Amendment principles protecting commercial speech.

A single paragraph late in the opinion sums up the Court’s determination that Florida’s regulation was overly broad:

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. Such a per se rule would eviscerate Central Hudson, rendering all but the threshold question superfluous. 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. Then, all usage in conflict with the regulatory agenda would be inherently misleading and fail Central Hudson’s threshold test. Such reasoning is self-evidently circular, and this Court has already had occasion to refute it.

For those wondering what the Central Hudson test is – as applied to commercial speech, which is  “a narrow category of necessarily expressive communication that is related solely to the economic interests of the speaker and its audience . . . or that does no more than propose a commercial transaction.” – the Central Hudson factors are:

Commercial speech does not merit First Amendment protection and may be regulated or even banned if (1) the speech concerns unlawful activity or (2) the speech is false or inherently misleading.  … If the speech neither concerns unlawful activity nor is inherently misleading, satisfying the threshold criterion and thus meriting First Amendment protection, then the government may only regulate the speech if its restriction satisfies intermediate scrutiny under Central Hudson’s three-prong test. In the first prong, “we ask whether the asserted governmental interest is substantial.” Central Hudson, 447 U.S. at 566, 100 S. Ct. at 2351. In the remaining two prongs, “we must determine whether the regulation directly advances the governmental interest asserted, and whether it is not more extensive than is necessary to serve that interest.” Id. A regulation that fails to pass muster violates the First Amendment.

The Court found that “calling the Creamery’s product “skim milk” is merely a statement of objective fact. See, e.g., Skim milk, Webster’s Third New International Dictionary (1986) (defining “skim milk” as “milk from which the cream has been taken”).”  

While this was an “intrastate as-applied” challenge, which means most other dairies will need to bring their own suits if the State of Florida will not relent, the particular body of law expressed and expounded here should reverberate plainly in this fomenting era of anti-regulatory fervor.  Agency based regulations restricting the use of otherwise true or forthright classifications or words based on agency standards for use of terms are questionable.  Authorities may find it harder to legislate “naming” or “designation” or “classification” rights through government regulations that place craft or small producers at a disadvantage because they lack the capital or capacity to adhere to or produce a product to those specifications when the product would otherwise conform to a common-sense understanding of the name, designation or classification.  This case also makes it clear that in upcoming disputes with regulators over such classifications, few tools in removing, restricting or rolling back labeling standards for food and beverage products appear to be as useful as Central Hudson.

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