Food Labeling

Florida Judge: You Must Lie to Consumers About Your Pure Skim Milk

|

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." 

Institute for Justice

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.

NEXT: 'Obama seeks Cellebrite assistance with Candy Crush Saga backdoor'

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. “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…”

    So, basically this isn’t so much a case about what is true but a case about the government’s authority to define what is true out of whole cloth.

    1. He’s using this word “reasonable”. I do not think it means what he thinks it means.

  2. Call it “Milk without cream.”

    She’s not just removing the cream, she’s removing a nutrient. I don’t know that requiring some kind of differentiation is inherently unreasonable.

    1. This is why we have the word “unfortified.”

    2. Instead of forcing her to lie, they should make the Vitamin A fortified milk producers tell the truth. Then she can call it skim milk because it is, and they can call it Vitamin A infused skim milk, which it is. Instead of rejecting her challenge, the judge should have forced the government to change the Act he was using to justify his rejection. He should demand the govt fix the problem they created instead of making her lie to sell her product.

      1. Yeah, I don’t think she should be forced to lie. I pretty sure that having judges act as super-legislatures leads to more harm than good, at least based on what the federal courts have done to the Constitution.

  3. Milk is what the government says it is.

    1. A cup of whole milk has 7% of the RDA of vitamin A. Skim milk doesn’t, unless it is fortified with vitamin A. Do you believe that’s a relevant difference?

      Even setting aside RDA and whatever, whole milk has it and pure skim doesn’t. By what method do you believe consumers should be able to tell whether a particular product does or doesn’t have particular characteristics?

      Maybe “unfortified skim milk” is a better name, but that wouldn’t be the only reasonable approach, would it?

      1. So what did people do before the FDA started requiring “nutrition” labels? Are you fucking serious with this shit? People throughout all of human history couldn’t figure out what they wanted to eat without federally mandated labeling? You do realize people only knew about characteristics prior to about 30 years ago from either advertising on the product itself, or their own research, right?

        1. You speak of the dark times when everybody died from lack of government control.

        2. I guess you didn’t read the Just Mayo threads, did you?

          1. I only read artisinal mayo threads.

            1. Fucking hipster.

        3. Aw, come on. We both know that businesses will cheerfully kill their customers if it means they can make a buck. Before the FDA it happened all the time. Every time someone bought food they were rolling the dice. It was only after the FDA that people could safely buy food without being poisoned. All reality-based people know this.

        4. I’m not talking about the FDA or the federal government. I’m talking about Florida.

          Is it your position that, whether you agree with it or not, that states don’t have police power to require uniformity of a product?

          Yeah, ideally, a motivated seller would have the information available, but it’s not exactly redefining milk.

          1. Is it your position that, whether you agree with it or not, that states don’t have police power to require uniformity of a product?

            No, they don’t. And they certainly don’t have the power to compel or restrict speech despite whatever invisible addendum to the 1st amendment stating “except commercial speech, lulz” SCOTUS thinks it found.

            1. If we’re going to go all textual and ignore the lulz SCOTUS, the First Amerndment says “Congress” not “the Florida Legislature,” right? Why do you claim the First Amendment applies to the Florida legislature?

              1. The “Due Process” clause of the 14A.

              2. 14th Amendment, privileges and immunities, etc.

                1. Ah, incorporation, perhaps the greatest of the lulz SOCTUS’ creations.

                  It’s cool how how whether things that aren’t mentioned in the Constitution are really somewhere in the Constitution or not, depending on how much one likes that thing.

                  1. Did you actually miss the location of Apatheist’s closing quotation mark, or are you that dishonest?

                    1. Did you actually miss the location of Apatheist’s closing quotation mark, or are you that dishonest?

                      So the SCOTUS can put out lulz rules but not be lulz itself?

                      I read his post as demeaning the SCOTUS itself (“thinks it found”), not just its foolishness on commercial speech, so I don’t think there is anything dishonest about also demeaning the SCOTUS’ other fictions, like incorporation. What do you think is dishonest about that?

                  2. The Privileges and Immunities Clause of Article IV, Section 2 of the Constitution states that “the citizens of each state shall be entitled to all privileges and immunities of citizens in the several states.”

                    If SCOTUS hadn’t eviscerated this clause, incorporation under the 14th wouldn’t be needed. See? No need to claim the idea that states can’t violate the bill of rights isn’t really in the Constitution.

                    1. Except “privileges and immunities” are largely seen as legislative or judicial creations rather than as rights that are seen as predating the Constitution “speech, keep and bear arms, etc.”

              3. What individual right is protected by Florida requiring uniformity of a product?

                1. My right to be dumb and lazy? That’s a right, right?

      2. How’s about the consumer looks at the nutrition label and decide which skim milk they prefer. No speech violations occur that way.

        1. You mean the government-required nutrition label, but not the government-required definition?

          1. Spoiler alert: I don’t support a government mandated nutrition label. If consumers want them, producers will supply them.

            1. Agreed, but it didn’t make a lot of sense for you to propose solving one required-labeling issue with another required-labeling issue.

              1. I said read the nutrition label, not the government should force them to put nutrition labels on the milk. Anything you add is on you.

                1. I said read the nutrition label, not the government should force them to put nutrition labels on the milk.

                  But the nutrition label you said they should read was put there because the government forced them to. And in a particular format.

                  1. Just because government is butting into a transaction doesn’t make it necessary or correct. You are the one advocating that the government control speech because you might not get your vitamin A.

                    1. Where did I advocate this, exactly?

                    2. Babbling about how skim milk doesn’t have the same Vit A levels as whole milk is fraud implies a government fix it.

                    3. Anything you add is on you. Right?

                    4. So fraud is legal now? Be careful, it’s been a center piece of your argument.

            2. NEM apparently thinks you’re too stupid to figure out what to eat, and that producers are too stupid to put info on their packaging that might help you decide to buy their product. Only the government is smart enough for any of that.

              1. To be fair to NEM, I am too dumb to know what to eat. I spent half an hour chewing on a rock before a nice lady from the FDA told me it wasn’t food.

              2. I made no claims there about whether the situation is ideal, or whether the government needs to be involved, or whether people don’t have alternative means of getting information.

                I said it made no sense to argue “they don’t need this government-required definition when they can look at this other government-required label” if government requirements are the problem.

                Is there any point at which you believe adulterating a product without notification rises to the level of fraud? Would it be fraud for her not to disclose that her process has removed all of the vitamin A from the milk?

                1. The only way it’s fraud is if you make claims that aren’t true. She skimmed the milk. It’s skim milk. Unless you think it’s fraud that milk isn’t label “pasteurized cow’s milk harvested from Holstein cattle”.

                2. She is disclosing, she’s notifying that the milk is skimmed of fat and cream (“Skim Milk”), which removes the vitamin A.

                  1. Yeah but people are too stupid to know if you remove a component of a food it will change the nutritional value. Only top men are privy to this information.

                  2. So she could call it “Milk without cream” and be golden, right?

                    1. Also known as “skim milk”.

                    2. Also known as “bitter white water.”

                    3. Not in Florida, apparently.

                    4. Apparently not – FDA regs require that she call it “imitation milk product” according to the article- and that’s a heaping helping of cow pies

                3. Is there any point at which you believe adulterating a product without notification rises to the level of fraud?

                  Yes. But as I said below, that would be better handled through a history of case law arising from people successfully (or unsuccessfully) suing when they feel they have been defrauded. The top-down regulatory approach is far less connected to how people actually interpret labels and far more connected to how some regulator or special interest wanted the labels to be interpreted.

                  Would it be fraud for her not to disclose that her process has removed all of the vitamin A from the milk?

                  I would probably say no.

                  1. As I said above, or maybe below, I’m not saying that this is the best ever or best possible approach. All I’m saying at this point is that if, for whatever reasons, people believe skim milk has all of the nutrition but not of the cream of whole milk, I think it is misleading to label something as skim milk when it doesn’t have that nutrition.

                    Why do you think it wouldn’t be fraud to sell milk as milk, but with all of the vitamin A removed and not disclose that?

                    What if someone sold milk with all the calcium extracted?

                    1. Because the producer of a product is not responsible for the consumer’s lack of knowledge. The woman isn’t making any false claims. If people believe drinking juice is healthier than drinking soda, it’s not up to the juice manufacturers to correct their misconception.

                    2. If the producer doesn’t disclose that nutrients have been removed, who does?

                    3. So pretend you are a consumer. You go into a store looking for sources of your precious vitamin A. You come to the dairy section. Before you there are multiple milk suppliers. One is a simple jug label “milk”, no other information. The other has a nutritional label, placed of free will by the farmer. It list the vitamin A content. You now have a choice. Pay 5 cent more for label milk or take your chances. What do you do?

                    4. “If the producer doesn’t disclose that nutrients have been removed, who does?”

                      Nutrients haven’t been removed. Vitamin A is not naturally in skim milk.

                    5. Skim milk doesn’t exist naturally. If it did, this wouldn’t even be an issue.

                      The vitamin A was removed from the whole milk, along with the cream.

                    6. “Skim milk doesn’t exist naturally.”

                      Yes, it does, as ‘naturally’ as whole milk or cream or butter. It’s just what’s left over when the cream is removed. All you need is gravity and time.

                      And when that process is done, there is no vitamin A. This is as silly and redundant as marketing potatoes “gluten-free.”

                    7. Why do you think it wouldn’t be fraud to sell milk as milk, but with all of the vitamin A removed and not disclose that?

                      You’re disclosing that the milk has been altered when you call it skim milk. I guess you could argue that a reasonable consumer might think that only implies a lack of fat, and not of other nutrients. Maybe, though that doesn’t quite hold water with me. But I don’t think most people would say a lack of vitamin A amounts to “imitation milk product”.

                      Either way, seems like it is better decided by case law.

                    8. I think reasonable consumers expect skim milk to be whole milk without the cream. Period. I wonder how many people here knew before this article that skim milk lost that vitamin A.

                      I agree that “imitation milk product” is an asinine description designed to force her to add vitamin A or to stop selling it, neither of which she wants to do.

                      If she called it “milk without cream” or “unfortified skim milk” it wouldn’t be as off-putting to consumers, and it would be more accurate and informative than “imitation milk product.”

                      I’m not sure what you think is better decided by case law, though.

                    9. “I’m not sure what you think is better decided by case law, though.”

                      Because, if it is decided by case law, then it is based on how actual consumers think and act, and not how you think consumers think and act. You keep wanting to speak for all the poor masses of consumers, substituting your expectations for their own, and making judgments from there. Just as every central planner does. LynchPin is saying we should instead look at the expectations of real consumers, demonstrated by whether they feel defrauded and sue for recompense.

                    10. When “tell people the vitamin A was taken out along with the cream” is compared to central planning, you’re approaching Godwin territory.

                      And, for at least the fourth or fifth time, I’m not saying that this is the ideal method. A world in which producers voluntarily make this information available to consumers, or don’t, is preferable. However, in this world, right now, where that preference is not in play, making sure that skim milk contains the same vitamin A as whole milk isn’t entirely unreasonable.

                    11. If the mustache fits, mein Fuhrer.

      3. A cup of whole milk has 7% of the RDA of vitamin A. Skim milk doesn’t, unless it is fortified with vitamin A. Do you believe that’s a relevant difference?

        No.

        At least not so much so that it requires a completely arbitrary government-mandated standard by which to judge and label it.

        1. Why is it “arbitrary” to require “skim milk” to have the same vitamin A content as “whole milk”?

          1. Isn’t it “arbitrary” to require “skim milk” to have *any* cream-component content as “whole milk”?

            1. Isn’t it “arbitrary” to require “skim milk” to have *any* cream-component content as “whole milk”?

              ?Qu

              1. Oops. Take two:

                Isn’t it “arbitrary” to require “skim milk” to have the same content of *any* component of cream as “whole milk”?

                1. Isn’t it “arbitrary” to require “skim milk” to have the same content of *any* component of cream as “whole milk”?

                  It’s arbitrary in the sense of not having some objective basis like the force of earth’s gravity in a vacuum at sea level. It’s not arbitrary in the sense of being down without any reason at all. It depends on which form of “arbitrary” we’re talking about.

                  However, the latter form of arbitrary leads to a bunch of “why” questions that undermine pretty much any political or philosophical position — including libertarianism — because there is no objectively provable way to measure whether the needs of the many outweigh the needs of the few, or the one, other than personal preference for which arbitrary premises to use.

          2. Why is it arbitrary? Why should it have the same content? It’s fucking milk with the cream removed. You know…skimmed out? Whatever happens because of that process is irrelevant to the fact that you’ve “skimmed” out the cream of whole milk resulting in…SKIM MILK. The fact that you add vitamin A to it makes it something other than SKIM MILK. It is now a processed milk product.

            1. How does that make it arbitrary, though? “This processed milk needs to have the same vitamin A as whole milk” is a reason. It isn’t arbitrary. Unless, I suppose, you want to walk the entire trail of “why?” back to a root answer… which doesn’t exist for the overwhelming majority of political or philosophical questions.

              1. “This processed milk needs to have the same vitamin A as whole milk” is a reason. It isn’t arbitrary.

                It’s an arbitrary requirement for calling something “skim milk”.

              2. “This processed (Skim) milk needs to have the same vitamin A as whole milk” is in fact arbitrary, as there is no objective reason why this should be so.

                1. “This processed (Skim) milk needs to have the same vitamin A as whole milk” is in fact arbitrary, as there is no objective reason why this should be so.

                  If that’s the definition of “arbitrary” you want to use, what’ the objective reasoning behind libertarianism?

              3. Are you really that dense?

                Real, actual skim milk, made by skimming the cream from whole milk, does not include vitamin A. The government, for NO REASON WHATSOEVER, added a vitamin A mandate after the fact, then declared everything without vitamin A to be something other than skim milk, which is of course wrong because skim milk is so-called because of the process of creating it, not what’s in it.

                Therefore, it is an arbitrary standard. Are you really this stupid, or are you doing this on purpose?

                1. The government, for NO REASON WHATSOEVER

                  I’ll wager there was a reason, and it was related to enforcing some preferred industry standard or some bureaucrat’s notion of what is and isn’t healthy.

                  1. Undoubtedly, but since those things are arbitrary (deal with it NEM), it’s not actually a reason at all.

                2. The reason was so that it would have the same vitamin A as whole milk. Now, disagreeing with that reason is fair game. Saying it is “NO REASON WHATSOEVER” is just making stuff up.

          3. Why is it “arbitrary” to require “skim milk” to have the same vitamin A content as “whole milk”?

            Because skim milk is not the same as whole milk and shouldn’t be assumed to be the same.

          4. Why is it “arbitrary” to require “skim milk” to have the same vitamin A content as “whole milk”?

            Because it fits the definition of “arbitrary” perfectly?

            1. It fits one definition. It doesn’t fit another. See above.

      4. Whatever distinction you want to make between unaltered and fortified skim milk you want to make, calling the former “imitation milk product” is an outright falsehood.

        1. Yeah, that’s why calling it “milk without cream” avoids that bit of “thinking.”

          1. Most people thought calling it “skim milk” meant calling it “milk without cream.”

        2. *** ponders “potted meat product” ***

      5. Milk packages always tell you what vitamins have been added in my experience.

        1. Now your advocating for the FDA, Zeb. Don’t you know reading the label means you support government mandated labeling. For shame.

          1. He drives the milk home on ROADZ

          2. Without the FDA, milk would be made of a mixture of semen, melamine and corn syrup and vitamin R.

      6. Maybe “unfortified skim milk” is a better name, but that wouldn’t be the only reasonable approach, would it?

        I’m pretty sure requiring her to call it “imitation milk product” is not one of those reasonable approaches, and that’s what was done.

        1. Yeah, that’s not a reasonable approach, but I wonder how much the posts here would differ if she were required to label it “unfortified skim milk.”

      7. Skim milk is what skim milk is. Fat solvable stuff will go with the fat.

        If anything, artificially fortified milk should be the one with the labeling requirement.

    2. Milk is what the government says it is.

      A vegetable.

  4. “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.”

    A huge and neglected cancer in our system: judges.

  5. Labelling requirements are probably one of the less offensive things that the FDA (and state equivalents) does. But when it has nothing to do with mis-representing your product (those “Just Mayo” assholes deserve a fate worse than death, of course) it’s pretty fucking absurd. “Skim Milk” is a descriptive name. And every thing of milk I buy tells me what vitamins have been added to it, so I don’t think much confusion will result here.

    1. Compelled speech is pretty atrocious actually.

      1. On the list of atrocities committed by various regulators, that one is pretty low. That’s all I’m saying. In anarchotopia, I’d hope to see a similar, but voluntary labeling accuracy certification of some sort.

    2. The best reason I can think for labeling laws is to avoid fraud. But it also seems like that could be better handled through a history of case law that builds up from people suing when they feel they have been defrauded. I’ll wager that a jury would not find fraud in this particular case.

      1. I’ll wager that a jury would not find fraud in this particular case.

        Likewise.

  6. What if my whole milk chooses to identify as skim trapped in a whole milk body?

  7. Wesselhoeft?

    “Oh, milk without the cream.”

  8. This sounds like the next Weekly Contest: suggest a good name for Mary Lou Wesselhoeft’s product.

    1. “Fat-Free Milk”

    2. “White water”

    3. “Gluten-Free Mammary Oppression”.

    4. “Unfortified Bovine Discharge”

    5. Skim milk.

      Call the other shit skim milk plus Vitamin A.

  9. How long will I have to wait for the The Florida Department of Agriculture and Consumer Services to be requiring Florida Natural to label their orange juice “imitation orange product”? After all, nearly half of the vitamin C is discarded when removing the white part.

    1. They also add coloring and “flavor packets” to the juice when they bottle it after having been in storage. That is why each producer’s OJ has consistent color and flavor, even in the winter.

      1. But hey, the Fedgov gets to define things however they want, so if they define a dog’s tail as a leg, then a dog has five fucking legs. They were given this power by the Constitution, you know.

        1. “When I use a word,’ Humpty Dumpty said in rather a scornful tone, ‘it means just what I choose it to mean ? neither more nor less.’

          ‘The question is,’ said Alice, ‘whether you can make words mean so many different things.’

          ‘The question is,’ said Humpty Dumpty, ‘which is to be master ? that’s all.”

  10. The label “skim milk” ought to alert you to the fact that something has been skimmed from the milk. If you don’t bother finding out what that something is, isn’t that kinda on you? (And if you’re concerned about the lack of Vitamin A fortification maybe you should be concerned about the pasteurization as well – it’s well-known that pasteurization mutates the milk proteins in such a way that they are responsible for autism, rectal cancer, dandruff, and the cancellation of My Name is Earl.)

    1. isn’t that kinda on you?

      That’s the problem.

      /every government bureaucrat ever

  11. So labelling something as what it is is fraudulent? OK. Sure. Good job, Florida.

    1. They had to offset the improvement with asset forfeiture. You can’t have things better on the whole.

      1. True. Stasis is more important than consistency.

  12. A comment argument about the definition of milk. Oh, internets, you are so fun.

    1. It is just a circumcision thread disguised as an argument about milk.

      1. Wait, so a circumcised penis is just “dick without disgusting skin flap?”

        1. Skim milk is the circumcised penis of liquid.

      2. These circumcision euphemisms are getting abstract.

    2. I know your taking the piss, but it’s really about free speech.

      1. I know, I know. But I have to say, that was my first reaction.

        “Good god, that’s where everyone went in the links. Milk. We’re… we’re… wait, we’re arguing about milk?”

        And then I laughed a lot.

        It’s not even the correct argument, which just makes me sad. We’re supposed to be arguing over whether that blue water counts as milk at all, and exactly how superior whole milk drinkers are as a sub-section of humanity. Probably due to genetics. With associated links.

        1. Damn right. Whole milk is delicious. Skim milk sucks that judge’s sweaty ass.

        2. We all drink whole milk.

  13. “The only thing i hate more than a liar is skim milk. Because it’s water… that’s lying about being milk.”

    1. There’s some sugar in there too. And vitamin A, apparently.

  14. When I was a kid, I used to spend a lot of time at my grandparents’ home. I used to help my grandma milk the cows, and then she would run some of the milk through a separator. The cream was mostly used to make butter.

    The skim milk was used to make slop for the hogs.

    I remember being told that the skim milk was no good for drinking. It was only fit for hog food. Years later, I actually tasted some skim milk and I discovered that she was correct. It’s only fit for hogs.

    I’ve noticed that no state requires a ‘For Hogs Only’ label on skim milk, though.

    1. THERE OUGHTER BE A LAW

  15. The only thing that matters here is whether or not she fortifies her skim malk with Vitamin R

  16. Probably the best thing she could do would be to leave the word “milk” off the product name entirely. Just name it Ocheesee Drink, and imply that it’s better thank skim milk!

Please to post comments

Comments are closed.