Food Labeling

FDA Backs Away From Absurd 'Skim Milk' Legal Fight

Dairy industry-endorsed regulations required skim milk to be labeled as “imitation” if it hadn’t been enriched with added vitamins.

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The Food and Drug Administration (FDA) has given dairies and creameries the official permission to label their skim milk as "skim milk." Huzzah!

An explanation is warranted, obviously. By any conventional definition, skim milk is milk with the fat or cream removed—skimmed off. But the government defines "skim milk" differently. According to FDA guidelines, in order to be called "skim milk," dairies had to add vitamins A and D to the milk before it could be lawfully distributed.

Dairies or creameries who did not add those vitamins were prohibited from labeling their skim milk as skim milk. Instead, they were required to call it "imitation skim milk" or "imitation milk product," even though their skim milk was not, in fact, an imitation of anything.

There's a market for "all-natural" skim milk without the added vitamins, and dairies and creameries who want to offer this product have been battling federal and state regulators for years. The Institute for Justice (I.J.), a public interest law firm, has represented several such creameries in court, arguing that these sorts of labeling requirements violate the First Amendment rights of skim milk vendors by compelling them to speak of their product as "imitation" in order to sell it.

I.J. won a notable victory against Florida milk regulators in 2017 when it persuaded the U.S. Court of Appeals for the 11th Circuit to rule in Ocheesee Creamery v. Putnam that the creamery was not "misleading consumers" when it described its skim milk as skim milk.

On Monday, I.J. pointed to a new letter from the FDA which makes it clear that the federal agency no longer intends to enforce the skim milk labeling regulation and no longer intends to push the states to enforce it. In 2018, in response to another I.J. lawsuit, the FDA sent a letter to Maryland-based South Mountain Creamery stating that it would not force the dairy to use the term "imitation" so long as its labels noted that its skim milk was not fortified with added vitamins A and D.

Additional legal wrangling ensued. The FDA attempted to have the South Mountain Creamery's lawsuit dismissed, which would have left the labeling regulation itself untouched. But Judge Yvette Kane of the U.S. District Court of the Middle District of Pennsylvania denied the motion.

Which brings us to the letter that the FDA sent on April 22, which informed South Mountain Creamery that the agency will no longer enforce the "imitation" labeling requirement and will no longer ask the states to enforce it. Furthermore, the letter noted, in the event that the FDA reverts back to enforcing the rule, it will not retroactively punish dairies for selling skim milk labeled as skim milk without the added vitamins.

"The government does not have the power to change the dictionary," said I.J. Senior Attorney Justin Pearson in a statement. South Mountain Creamery's "product was the real thing, not an imitation. It was a clear violation of [creamery owner Randy Sower's] First Amendment rights to force him to use a label that wasn't truthful. Now, this communication from the FDA should allow Randy and other dairy farmers across the nation to sell pure skim milk across the country without fear of prosecution."

On the basis of the new letter, Judge Kane dismissed the lawsuit without prejudice. I.J. President and General Counsel Scott Bullock said in a statement that if the FDA starts enforcing the regulation again, I.J. will return to court.

Reason contributor and food policy expert Baylen Linniken has extensively covered the legal conflicts between creameries and regulators and even served as an expert witness in the aforementioned Florida case. As he has pointed out, the International Dairy Foods Association argued in favor of enforcing the skim milk labeling regulation in that dispute. This gives the entire fight a similar feel to the dairy industry's various attempts to stop companies that manufacture soy milk, almond milk, and similar products from labeling their goods as "milk." Such efforts have little connection to consumer protection. Rather, the dairy industry seeks to hobble its competitors via government regulation.

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  1. “On the basis of the new letter, Judge Kane dismissed the lawsuit without prejudice. I.J. President and General Counsel Scott Bullock said in a statement that if the FDA starts enforcing the regulation again, I.J. will return to court.”

    This bullshit. The courts should not let a letter stop a final judgement that the FDA was wrong, and that regulation is unconstitutional. Now all that money in legal fees is wasted, because the next power drunk FDA asshole that comes along will require spending another gazillion dollars to show the feds what for.

    1. Agreed. There is nothing moot about the question – other than the largess of the king. The courts should change this practice.

  2. “On Monday, I.J. pointed to a new letter from the FDA which makes it clear that the federal agency no longer intends to enforce the skim milk labeling regulation and no longer intends to push the states to enforce it.”

    Out of curiosity, who was President when this lawsuit started?

    “The case, Ocheesee Creamery v. Putnam, has its roots in 2012,”

    Oh, Linniken covered that.

    1. Out of curiosity, who is in charge of the branch of government that oversees the Food and Drug Administration. Oh, the current sitting president!

      1. Right so your guy started it and Trump ended it.

        1. Do you think he missed that? I mean, that’s the obvious conclusion here…..

          1. No I think he hated it and I’m rubbing his fucking nose in it.

        2. It’s still not ended. That letter is still in effect. That they say they won’t currently enforce it does not mean they won’t change their mind’s tomorrow.

          Trump (all hail) should have ended this his first week instead of waiting until year four to say “the law is still there but we’ll just look the other way”.

          1. “It’s still not ended”

            Ahahahaha keep gripping bitch Trump handed your chocolate Jesus an L ahhhajaa

  3. Poor Randy Sower. First the IRS steals his money because of bundling and then this FDA attack. Jesus, I can’t imagine what this diary farmer could have done to piss off the feds so much.

    1. I can’t imagine what this diary farmer could have done to piss off the feds so much.

      He attempted to stand up for his rights against absurd regulation. He’s lucky they didn’t send a SWAT team.

      1. Actually, didn’t they send the swat team? Or was that a different dairy farmer?

        Yeah, I suppose that was the guy who didn’t pasteurize.

    2. Sounds like the feds pissed him off pretty good. He won that IRS case, testified before congress, and they had to change their tactics on going after structuring forfeitures:

      “The despair of having to deal with people who aren’t elected, aren’t answerable to anyone, and keep their jobs forever, is hard to describe.”

      In 91% (252) of the cases sampled, the inspector general “did not find evidence that the structured funds came from an illegal source or involved any other illegal activity.

      In July 2019, seven years after Treasury agents first visited South Mountain Creamery, President Trump signed the Taxpayer First Act (after unanimous congressional approval)—a significant package of IRS reform legislation, which included the Clyde-Hirsch-Sowers RESPECT Act (eponymously named for Andrew Clyde, Jeff Hirsch and Randy Sowers). The RESPECT Act officially restricts forfeiture to currency structuring instances involving illegal activity.

      https://www.agprofessional.com/article/farmer-refuses-roll-rips-lid-irs-behavior

  4. in the event that the FDA reverts back to enforcing the rule, it will not retroactively punish dairies for selling skim milk labeled as skim milk without the added vitamins.

    Did they pinky swear? If they didn’t pink swear then it doesn’t count.

    “Skim milk is just water that’s lying about being milk.” That said dairies should be allowed to label it as such without having to jump through hoops to do so.

    1. I imagine that their letter has some kind of official weight, and if some future bureaucrats tried to renege on it, the courts would take a dim view. But nothing is sure when the government defines its own limits.

    2. Who the hell drinks skim milk, and why?

  5. To be a contrarian, there are places where how a product is labeled is important. In two recent incidents I was tricked by the labeling. The back of the package was truthful and indicated what I bought, but the front played fast and loose with the English language. Both are cases of frozen food. Because of quarantine shopping rules, I’m not allowed to put a package back in the grocery freezer after reading the ingredients. Which is what got me the wrong product twice in the last month.

    First, I bought some “Chicken Alfredo Pasta”. The pasta had a strange texture and a slightly odd taste. Turned out it was made from lentils. I understand the market exists for gluten free pasta, and semolina free pasta, but surely that would be on the front of the package. It was not. As John Pinette would say, it had none of the characteristics of pasta.

    Second was a “beefy cheese hot pocket”. Turned out it was Vegan, meaning it had neither beef nor cheese in it. Again, it had none of the characteristics of beef or cheese.

    Now as a good libertarian I am NOT saying the FDA needs to be regulating products out of business. The real problem is that current quarantine rules (don’t put stuff back on the shelf) made it hard to know what I was actually buying. But as a good libertarian I would hope that manufacturers would voluntarily disclose what they were in fact selling. Beef that is not beef is not beef. Cheese that is not cheese is not cheese.

    Again, the government shouldn’t be shutting these businesses down. But if almond milk manufacturers are able to voluntarily label their product as “almond milk”, then why the hell can’t Vegan manufacturers label their products as “warning: vegan abomination”?

    1. Those are very odd cases as “gluten free” and “vegan” are both upsells that manufacturers charge significantly more for, and thus are among the most important things to put on the front of the package

      1. Gluten free has such a premium that they put it on products that no one would expect contains gluten.

      2. Years ago I once say a store tag sugar as “fat free”.

    2. We get it you support Obama’s stuoud fucking policies.

      Less bloviation next time Ken, it makes you look desperate.

    3. I’m sorry you had to suffer the mislabeled Chicken Alfredo Pasta, but the picture of the gentleman with a gun in his mouth (because bullets are gluten-free) should have been a dead giveaway.

      1. “Chicken Alfredo”

        Isn’t that redundant?

    4. Second was a “beefy cheese hot pocket”. Turned out it was Vegan, meaning it had neither beef nor cheese in it.

      Well, to be fair, “beefy” could be interpreted as an adjective meaning “beef like,” not necessarily that something is, in fact, beef. “Cheese,” however, one would assume means that there is in fact cheese in it.

      1. The cheese nachos at my local theater would beg to differ….

        1. The word “nacho” is a colloquial shortening of the common dish known in the American Southwest as “tortilla chips with NOT CHEESE on top”.

          1. That is wrong. It comes from the fact that they all belong to someone else. Those are not yo chips.

      2. The “beefy” bit was not at all beef like. The Impossible Burger at least tastes like beef with the texture of beef. With this thing it was really hard to know where the pasty outside ended and the beefy cheese (or was it cheesy beef?) began.

        At least the pasty part had gluten in it! I don’t know what gluten is, but I do know it makes bread edible!

        1. Buy real meat and eat like a man.

    5. >>In two recent incidents I was tricked by the labeling.

      dude. you make the jokes for me.

      1. He wears an “I’m with stupid “ tee shirt and the arrow points up.

    1. Hey, you apparently SugarFreed the Rick-Roll!

      1. Oh Dear. Do a Goolagle search for “land o lakes removes indian woman”

        1. Dots or feathers?

          1. Ghee Whiz!

  6. they were required to call it “imitation skim milk” or “imitation milk product,” even though their skim milk was not, in fact, an imitation of anything.

    “Oh, very well. From now on, it’s the ‘Imitation Food and Drug Administration’.”

  7. Why in the hell is there a market for skim milk without added vitamins? Why in the hell would you not want that?
    Some people suck

    1. Why is there a market for skim milk? Might as well drink water. It’s much cheaper and the effect is about the same.
      Pumped in vitamins are a joke. No proof they do anything other than make the users feel good.

    2. Neither of the vitamins in question occurs naturally in whole milk.

  8. Skim milk is glorified water with a little white coloring. I would rather drink no milk than drink that nasty stuff. No self-respecting cow would recognize it.

    That said, this is as absurd as allowing “organic” whole milk to have Vitamin D added, which makes a mockery of the idea of organic because there is no natural Vitamin D in milk.

  9. The FDA has got to be the most deadly government agency. (Guns don’t kill people, Governments do.) First they approve drugs that they know are and will kill people. When they are obviously dying they won’t remove killers from the market.

    They control 25% of each dollar earned and are greedily grasping for more. If nothing else this whole corona-debacle should illuminate the corruption and ineptness within US health agencies.

  10. Skim milk should be called skim milk unfortified or not. Almond milk and its ilk should not be labeled milk because it isn’t. Milk is a secretion of a female mammal not ground up nuts and water.

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