Mary Lou Wesselhoeft, who runs the Ocheesee Creamery in Florida, wanted to tell the truth about the product she sold by labeling her pasteurized skim milk as “pasteurized skim milk.”
The Florida Department of Agriculture and Consumer Services has its own peculiar regulatory definition of that product, which requires vitamin A be added to it. She prefers a pure and natural product without any additives, and refused to do that. So the state ordered her to not call her skim milk what it was.
They demanded she call it “imitation milk product,” ordering her to lie to and mislead consumers as a condition of doing business.
She sued last year to overturn this labeling law, with the help of the Institute for Justice. And alas last week the U.S. District Court for the Northern District of Florida rejected her challenge.
U.S. District Judge Robert L. Hinkle calls back on the authority of the Federal Food, Drug, and Cosmetic Act in 1938 to allow the federal government in interstate commerce to create a “reasonable definition and standard of identity,” for food in interstate commerce, and notes that Florida has taken upon itself that authority within the state as well.
Judge Hinkle leans on the 1980 Supreme Court case Central Hudson Gas & Electric Corp. v. Public Service Commission of N.Y. to defend his belief that the First Amendment is not implicated in “a restriction on commercial speech” that meets these criteria:
(1) the asserted governmental interest in restricting the speech is substantial; (2) the challenged restriction directly advances the asserted governmental interest; and (3) the restriction is not more extensive than is necessary to serve that interest.
The Judge noticed something alarming: that if Wesselhoeft could win based on the notion that her “vitamin-deficient nonfat milk is wholesome, not harmful, and nobody has been misled or otherwise complained,” that conclusion could “initiate a frontal assault on the Federal Food, Drug, and Cosmetic Act and its state counterparts, whose validity was established long ago” since many of its regulations don’t require that the regulated item be unwholesome, harmful, misleading, or have led anyone to complain.
It’s all about instituting what the judge thinks is a reasonable “requirement for skim milk: it must include the same nutritional value, that is, substantially the same amount of vitamin A, as unfortified whole milk.” Thus, the demand to add vitamin A that is removed when the milk has its cream content reduced—that is, when it is skimmed—is legit in the judge’s eyes. Wesselhoeft’s business sells the cream, and also wants to sell the skim milk.
I.J. issued a press release on their loss, quoting Wesselhoeft as saying “I just want to tell the truth…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 Institute for Justice says it intends to appeal.
I reported on this case last year, stressing the deeply disturbing implications of the government’s very power to make laws like this last year.