Food Labeling

Appeals Court Embraces Free Speech, Rules Skim Milk is 'Skim Milk'

The 11th Circuit Court of Appeals dealt an important ruling for food freedom this week.

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milk
Ocheesee Creamery

"The leftover product is skim milk: milk that has had the fat removed through skimming."

If those words—from a unanimous 11th Circuit Court of Appeals ruling earlier this week—sound like some sort of dicta—words in a court decision which represent a judge's ideas or observations but aren't part of the holding of the case and which, therefore, carry little legal weight—then it may surprise you to learn the question of whether all-natural skim milk is skim milk actually go to the heart of the case in question.

The case, Ocheesee Creamery v. Putnam, has its roots in 2012, when Florida's state agriculture department ordered Ocheesee, a small creamery in the state's panhandle, to stop selling its skim milk. The state claimed Ocheesee's skim milk ran afoul of Florida's standard of identity for skim milk, which requires creameries and dairies to add vitamin A to their skim milk.

In response, Ocheesee, which prides itself on its all-natural milks, proposed instead of introducing vitamin A additive to its milk to label its skim milk as "Pasteurized Skim Milk, No Vitamin A Added."

The state rejected that label, telling Ocheesee they could sell their skim milk only if it were labeled as "Non-Grade 'A' Milk Product, Natural Milk Vitamins Removed" or, later, as "imitation skim milk." For a state that argued it was in the business of protecting consumers, and that Ocheesee's use of the term "skim milk" to describe its skim milk (ingredients: skim milk) was misleading, it's worth noting both of Florida's recommended terms for a skim milk that contains only skim milk are patently and grossly misleading.

Ocheesee was forced to sue the state. Last year, the U.S. District Court sided with the Florida regulators.

The appeals court win this week is an important victory not just for Ocheesee Creamery but also for free speech, consumers, small businesses, and food freedom. It's also a big win for the Institute for Justice, which represented the plaintiff creamery.

"This decision is a total vindication for Ocheesee Creamery and a complete rejection of the Florida Department of Agriculture's suppression of speech," said Justin Pearson, a senior IJ attorney, in a statement this week. "Today, thanks to the 11th Circuit, [Ocheesee owner] Mary Lou [Wesselhoeft] is no longer denied her First Amendment right to tell the truth."

I served as an expert witness for Ocheesee Creamery in the case—writing an expert report and testifying in a deposition on its behalf—and describe the case in some detail in my book, Biting the Hands that Feed Us: How Fewer, Smarter Laws Would Make Our Food System More Sustainable. Like Pearson, I couldn't be happier with the outcome of the 11th Circuit case.

The intervention of one of America's largest dairy lobbies into the case in support of the Florida regulations—which I wrote about in September—is one interesting facet of the case.

"Food processors, such as Ocheesee, who choose not to replenish essential nutrients to the standardized level, must label those products as 'imitation,'" the International Dairy Foods Association argued.

Thankfully, the 11th Circuit Court saw otherwise.

As I've argued for years—and first argued in a 2012 column here—food labels should be open "to any and all statements that aren't demonstrably false."

Use of terms like "natural," "almond milk," and "Just Mayo" on food labels are not the least bit misleading. Government efforts to stifle such speech and to rewrite the meaning of common dictionary terms to fit government ends are draconian, Machiavellian, Orwellian, and all sorts of other bad things ending in the suffix "-ian."

What's next for the Ocheesee case? I suspect Florida will ask the U.S. Supreme Court to take up its appeal of the case. That's when things could get even more interesting.

If the U.S. Supreme Court decides not to hear Florida's appeal, then the 11th Circuit Court's ruling will be the law of the land in Florida, Alabama, and Georgia, the three states within the court's jurisdiction. On the other hand, if the Supreme Court chooses to take up the case—a distinct possibility—and to uphold the 11th Circuit's ruling—another distinct possibility—then many state and federal standards of identity could rightly be in peril. The FDA's own requirements for skim milk—which form the basis for Florida's standard—could be challenged.

But even if Florida doesn't appeal, or the Supreme Court decides the time isn't ripe to hear the Ocheesee case now, the toothpaste may already out of the tube. That's because the 11th Circuit ruling covering three adjoining states—Florida, Alabama, and Georgia—means some enterprising dairy could begin transporting skim milk across state lines from one of those three states to another of those three states. As soon as the milk crossed state lines, it would be in violation of FDA rules, which govern interstate commerce.

Now suppose the FDA were to seize those shipments in interstate commerce. Where might a Florida, Alabama, or Georgia dairy or creamery that's been told by the FDA that it's run afoul of agency rules pertaining to the addition of vitamin A to skim milk take its case? More than likely, they'd take it to U.S. District Court in Florida, Alabama, or Georgia, federal courts which are bound by the precedent established by the 11th Circuit—assuming the same facts are in evidence—and, I suspect, rule against the FDA. Of course, the FDA would appeal such a ruling. Who would hear the appeal? The 11th Circuit, the same court that just ruled against the Florida regulations.

Free speech won an important victory this week. Thanks to this win, I'm optimistic Florida's skim milk rules are the first of many similar ones that will fall in the coming months and years.

NEXT: Crime on the virtual street: Haptics, algics and assault

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  1. This is an example i will love to throw into peoples’ faces about why i hate the government on just the bureaucratic level.

    This shit just gets dumber by the day.

    1. Florida, they hate gubmint there. But throwing shit won’t get you that prized zoo job, it’ll get you shot.

      1. Just as long as we make it clear to all Americans that engaging in false speech to “stir up controversy” and “damage reputations” is a crime, then we should be okay and some of our other so-called freedoms can be tolerated. Surely no one here would dare to defend the “First Amendment dissent” of a single, isolated judge in our nation’s leading criminal “satire” case? See the documentation at:

        http://raphaelgolbtrial.wordpress.com/

        1. Baylen is milking this for all it’s worth!

        2. Glad to see you put “satire” in quotation marks, designating that it is not that, at all.

  2. It’s Skim Milk Derangement Syndrome. Why won’t Reason cover buttermilk, hmmm?
    Because cocktail parties, that’s why.

    1. MMMMM,buttermilk. I do not comment often now. Like many.

      1. I like to marinate my orphans in buttermilk before roasting them over a coal fire whilst donning my top hat and monocle.

  3. The state claimed Ocheesee’s skim milk ran afoul of Florida’s standard of identity for skim milk, which requires creameries and dairies to add vitamin A to their skim milk.

    Just a glimpse for what is coming with pronoun identity for humans.

    How long before someone is jailed until circuit court appeal or beyond for failing to divine the desired pronoun of some snowflake.

    1. Never. This is why nobody takes anarcho-libertarian Chicken Littles seriously.

      1. Only one of the reasons. It is not like they are asked to get vaccinated

        1. Were’ both you nitwits born this dumb, or did it take years of government schooling to accomplish?

            1. DanO.|3.25.17 @ 12:08PM|#
              “Arf!”

              Forget it. My dog is smarter.

          1. Sevo, come over to glibertarians. If you like this, knock yourself out.

            1. straffinrun|3.25.17 @ 12:32PM|#
              “Sevo, come over to glibertarians. If you like this, knock yourself out.”

              straffinrun, I lurk.
              I see benj got a free pass.

          2. I am going with option 2 Sevo, just because I am in a happy mood today.

  4. Why wait for the skim milk to actually cross state lines? It’s been established since 1941 (?) in (Wickburn? Wyburn?) that producing a product locally still affects interstate commerce.

    1. But the provisions of the Federal Food, Drug and Cosmetic Act are written regarding goods in interstate commerce. Constitutionally the authority is there write a state concerning things affecting interstate commerce, but Congress did not write the FFDCA that way. This is a statutory matter, not a constitutional one.

    2. Just interstate commerce? Any day now the ‘president’ of Venezuela will be citing this as part of the economic war against his worker’s paradise.

    3. Why wait for the skim milk to actually cross state lines? It’s been established since 1941 (?) in (Wickburn? Wyburn?) that producing a product locally still affects interstate commerce.

      It was in the Constitution nullification clause.

      The Founders spent years drafting the Constitution to limit government power, only to grant it omnipotence with the CC. – Wickard

      1. Yes, this is what I meant. Wickard didn’t ship across state lines, that’s what made it so infamous. I don’t see why the FDA would have to wait for interstate shipment to put these uppity farmers in their place.

        1. Wickard didn’t even sell his grain: there wasn’t even the possibility for it to enter commerce.

          Rauch, however, to it to next level: Rauch did not sell marijuana, and she could not even legally buy marijuana because legal interstate commerce in marijuana does not even exist.

          1. Correction: Filburn didn’t sell the grain he grew. Wickard was boneheaded Secretary of Agriculture.

            1. But Filburn did feed beef cattle with the grain he grew and sold them, affecting interstate commerce if not directly in it. Wickard was not about growing grain to feed your own family – small quantities were exempt from the regulation in question.

              It’s Raich that went even beyond Wickard to rubber-stamp a “regulation of interstate commerce” that had no miminum quantity, forbade all commerce, and reached into areas with no interstate or commercial implications. Considering that Scalia otherwise held to principles of limiting federal power and the overreach of the IC clause, if Scalia’s religious beliefs are true, he’s in the special area of Hell reserved for traitors now.

          2. Also, it’s Raich, not Rauch.

        2. Didn’t you read what I wrote above? Because Congress didn’t give FDA that authority. All the Wickard decision did was read the Constitution to allow Congress to do so, but in this case Congress simply didn’t.

          1. No, I did not notice that distinction. It may have been the original 1941 distinction, but the commerce clause has been so abused that I doubt it’s necessary to have an explicit grant of said power.

            1. Actually the Supreme Court has been pretty vigilant against administrative agencies’ assuming powers not granted by Congress when the language of the enabling legislation is clear enough, and even in many cases (as with FDA & tobacco) where the statutory wording, taken literally, would have granted such authority. It’s Congress the courts have not been strict with vs. the Constitution.

              1. The Congress’ power to “regulate” interstate commerce was intended to prevent trade war type restrictions amongst and between the States. As it was written “regulate” meant “to make regular.” The intention was that if a product was legal anywhere, it was legal everywhere; it was not the intention to give the government the ridiculous regulatory powers now being exercised.

                Thus, if Wyoming can ship coal to Montana legally, then they both can ship coal to west coast ports for transport to the China. Furthermore, if Canada can ship oil, via pipeline, to North Dakota, then they both can ship it anywhere else stateside they want to. Otherwise, it’s Helter Skelter of Manson proportions.

  5. Use of terms like “natural,” “almond milk,” and “Just Mayo” on food labels are not the least bit misleading. Government efforts to stifle such speech and to rewrite the meaning of common dictionary terms to fit government ends are draconian, Machiavellian, Orwellian, and all sorts of other bad things ending in the suffix “-ian.”

    I wish Reason bloggers thought about “married” and “spouse” in the same light.

    Meanwhile, though, when I 1st heard of “almond milk”, I didn’t think of it akin to coconut milk, but as almond-flavored milk. “Just Mayo” did try to rewrite the common dictionary meaning to fit their ends! “Natural” is just plain vapid.

  6. Out west or the Great Lakes, some snowflake professor won a judgement against the school for not using it’s preferred ‘pronoun’.

    1. It starts with the money and ends at the gallows.

  7. This is an Orwellian decision. The reality is that in 2017 consumers assume all milk has vitamin A in it and that skim milk is the kind with no fat in it. Given that 99% of the population has never been involved in the preparation of milk, claiming that the definition is rooted in the nature of the preparation steps.

    Not sure how Mr. Linkedin thinks that “”Non-Grade ‘A’ Milk Product, Natural Milk Vitamins Removed” is misleading — vitamin A naturally occuring in milk is removed along with the fat during the preparation of skim milk.

    Words mean what people think they mean, not what a dictionary says they mean.

    1. And Pepsi has high fructose corn syrup.

    2. Vitamin A is fat soluble. Good luck absorbing it when drinking it with skim fucking milk.

      1. Depends on what you’re eating along with the milk.

        1. So now the buttermilk makers need to make one for steak and a different one for broccoli?

        2. a lot of fat and some carrots, as milk barely has any vitamin A in it, skim or otherwise.

          But you knew that and were arguing a retarded point just to argue.

          1. Nope.

            A cup of whole milk supplies 112 micrograms of vitamin A. That’s 16 percent of the 700 micrograms recommended as a daily intake for women and 12 percent of the 900 micrograms men should have each day. One cup of 2 percent milk contains 134 micrograms and one cup of 1 percent milk supplies 142 micrograms of the nutrient. You’ll get the most vitamin A from skim milk, which contains 149 micrograms per 1-cup serving.

          2. Funny you mention carrots too. Carrots have very little fat in them, so by your own logic, it’s pointless to eat carrots since you can’t absorb the vitamin A from them either, right?

            1. http://nutritiondata.self.com/…..ducts/69/2

              5%. Fuck your stupid source! You fucked up!

              Funny you mention carrots too. Carrots have very little fat in them, so by your own logic, it’s pointless to eat carrots since you can’t absorb the vitamin A from them either, right?

              I said:

              a lot of fat and some carrots

              and

              https://en.wikipedia.org/wiki/Logical_conjunction

              the and of a set of operands is true if and only if all of its operands are true

              Get fucking dunked on!

      2. Vitamin A is fat soluble. Good luck absorbing it when drinking it with skim fucking milk.

        This is a symptom of the same bygone era that started putting vitamin A in milk in the first place. The fat-solubility has more to do with physiological processing and storage than with consumption, esp. at this era in human history. You can absorb pure vitamin A all by itself and megadoses of vitamin A can (now) readily be produced and distributed to parts unknown. The majority of bile salts and stomach acid components are already dissolved in fat for this very purpose. When you’re starving in a N. Dakota winter and fresh carrots aren’t an option (nor vitamin pills), fortified milk is a great option. Further, in the case of food additives, they aren’t or may not be talking explicitly The Vitamin A Molecule as much as esters and precursor equivalents which can be effectively dissolved or simply suspended. (This is why the RDA of some vitamins is given in IUs rather than SI-based units of mass mg, ?g).

        You can go to just about any drug store or Google and find fat free or calorie free drinks (or powders) delivering anything from fractional doses of RDA to multiples of RDA in a single serving. Mrs. Casual is actually partial to Vitamin Water. The main reason vitamins like this are/were added to milk was, originally, people who couldn’t consume carotenoid rich foods year-round needed to maximize adsorption when they did consume these nutrients.

  8. Wow, less than 30 comments for a thread that has been up all day. Amazing. Even the gay boys have taken a day off from spamming every thread with their stupid bullcrap dozens of times.

    1. How many times did you have to try before getting that past the squirrels?

    2. Even the gay boys have taken a day off from spamming every thread with their stupid bullcrap dozens of times.

      Rekt

  9. I no can logib to glibertarians, and forgot password says internal error

  10. First time they’ve left this on the free site. http://www.sfchronicle.com/VisionSF/
    The SF Chron is hoping to become the identifier of ‘future leaders’ (they missed Trump), so they are running a promo called “Vision SF” and giving the ‘candidates’ ink and I think some free food.
    Most all of them are involved in charity of some sort or the other as if a lack of charitable organizations were the major problem facing the world. Some are voluntary ( Chan and Weaver, I think), most of the others are promoting charity at the end of a gun:
    “Oakland attorney Angela Glover Blackwell wages fight for equity”
    […]
    “From her desk, which sits beneath pictures and posters that sound rallying cries such as “Equity” and “Protect Oakland renters,” Blackwell oversees a staff of 70 public policy experts and attorneys in California, Washington, D.C., and New York. Her organization partners with communities all over the country to help disadvantaged people, often minorities.”
    http://www.sfchronicle.com/vis…..943001.php
    Fucking slaver.

    BTW, what SF drastically needs is FEWER charities; no you can’t afford to live here, even if you get free box lunches from some attention-whore.

  11. Minato Namikaze Naruto heat sensitive coffee mug, personalized custom magic cup, the use of high-quality ceramic, non-toxic. Whether it is to watch or drink as a cup is a good choice.

  12. I wish dairies would be made to label their product, “Bovine Lactate Juice” because that’s what it is. There is nothing in dairy milk that humans need. Backed by science!

    1. There’s tons of things in milk that humans need. Water and fats to start with.

      If you wanted to say there’s nothing in milk that couldn’t have been gotten elsewhere, at least you’d have been correct.

      Irrelevant, but correct.

      1. Enjoyed your daily ration of carbolipro yet, Commrade?

        It’s got what a body needs. And absolutely nothing else, Wrecker.

      2. The emphasis was on dairy milk. You, like every other mammal on planet Earth, were weaned from you own mother’s milk at a very early age. Nature decided long before you arrived that once you are weaned you no longer need your own mother’s milk, which inherently means you never need the milk of another species mother. It would be more natural for you to keep your own mother pregnant for the entirety of her life and suckle at her teat, than to keep another species pregnant so that you can drink its milk. Again, backed by science! Cheers.

        1. I don’t need to drink many of the things that I like to drink, beer, beer, cows’ mile, and even beer! But that doesn’t change that I like to drink them.

          Also… are you seriously arguing that the govt should force dairies to do something on a libertarian website?

          1. No Leo, simply labeling things as they truly are as the article intimates. And my guess is that you don’t drink beer for its purported health benefits, whereas, you probably drink bovine lactate juice because you been led to believe it is healthful, no? If so ,one would have to wonder why humans don’t drink a variety of mammal lactates? When’s the last time you poured yourself some delicious opossum lactate, or bat, or giraffe? Think of it the other way around. Would a cow live a more robust and healthful life if it drank nothing but human milk for the entirety of its life? Probably not.

  13. This thread needs a recipe stat!

    1. Half bag frozen strawberries
      1/2 cup diced mango
      1/2 cup pineapple tidbits
      1/2 cup white kidney beans
      1/2 can coconut milk
      1 cup whole milk
      couple ice cubes

      Blend and pour

      1. You forgot the tequila.

  14. “International Dairy Foods Association”
    So why don’t they force accurate labeling of their product?
    “Processed cow’s milk with additional manufactured ingredients” (added vitamins)

  15. my buddy’s mother gets 66 each hour on the internet, she has been out of a job for twelve months.. the previous month her payment was 16114 just working on the internet four hours per day. go here to this
    +_+_+_+_+_+_+_+_+ http://www.moneytime10.com

  16. This entire case is one big missed opportunity to accurately rename skim milk “Water Lying About Being Milk”. How unfortunate

  17. Governments and governors sometimes lie big time. Be relentless with lying and you can change words to meet your political objectives. Claimed parallels to Hitlertarian Germany are bogus! They care. Could unskimmed milk be legally defined as not milk? You bet.

  18. Why is the government concerned about milk? They don’t seem too concerned about tonic.

    1. Follow the money.

  19. My husband calls the Libertarian party the skim milk party because they always get 1 or 2% of the vote.

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