Big Fight Over Spilled Milk in Montana

HELENA, Mont. (CN) - Montana destroys out-of-state milk - but not milk from Montana - under an antiquated "sell-by" date law, a milk distributor says in a constitutional claim in Federal Court.

Plaintiff Core-Mark International is a Delaware corporation based in Spokane, Wash. It sued the Montana Board of Livestock and nine of its members on Jan. 28, claiming the board's actions violate the Commerce Clause, the Due Process Clause and three other sections of the Constitution.

The Department of Livestock has "final and absolute" authority to establish "reasonable" rules and regulations for distribution of milk in the state. It requires that milk shipped to Montana must bear a pasteurization date and a "sell-by" date on each carton. The sell-by date is the 12th day after pasteurization.

Core-Mark says the livestock department seizes and destroys its milk if it has not been removed from store shelves by the 12-day sell-by date.

It claims the practice is wasteful and that Montana does not have similar requirements for its own milk.

"The shelf life of grade A milk is now much longer than 12 days and enforcement of the 12-day rule results in the waste or destruction of good milk," according to the 25-page complaint.

Core-Mark says advances in pasteurization allow milk to stay fresh for at least 21 days after pasteurization.

The company first sued the Montana Department of Livestock in 2008, challenging the 12-day sell-by date, but both parties agreed to dismiss the case without prejudice and conduct an administrative hearing instead. Hearing examiner John Sullivan found that "the 12-day rule was in invalid exercise of the department's statutory authority" and recommended it be amended, Core-Mark says in the new lawsuit.

But the livestock department ignored the October 2011 recommendation and has kept the rule in place, according to Core-Mark.

Core-Mark says the livestock department's continued use of the 12-day sell-by date is unfair and violates constitutional guarantees of equal protection, privileges and immunities, the First Amendment, and the Due Process and Commerce Clauses.

The First Amendment claim is because the livestock department won't allow Core-Mark to date its milk with a "processor code" indicating the date milk was put under "stress" testing, which it says is a more relevant date for freshness.

It claims that the shipping time further reduces the 12-day limit, "whereas similarly situated in-state milk distributors are not subject to such a truncated shelf life."

"Enforcement of the single date rule and 12-day rule unnecessarily increase costs to plaintiff and other interstate processors and distributors that sell milk in Montana and surrounding states by forcing them to separately package, label and inventory milk destined for sale in Montana and to make more frequent and smaller deliveries to their retail customers in Montana," the complaint states.

Core-Mark seeks declaratory judgment, a restraining order and injunction, and costs.

It is represented by William VanCanagan and Trent Baker, with Datsopoulos MacDonald & Lind, of Missoula.

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