(CN) – The 6th Circuit on Thursday struck down key parts of Ohio’s rule on milk labeling, ruling that dairy processors can label their products as free of a synthetic growth hormone and can use asterisks in their disclaimers.
In 1993, the Food and Drug Administration approved the use of recombinant bovine growth hormone, also called rbGH or rbST, in cows to increase milk production by up to 10 percent. Though the FDA found that milk from cows treated with the genetically engineered hormone was “safe for human consumption,” a growing number of companies began advertising their products as “rbGH-free.”
The FDA offered some general labeling guidelines, but left it up to states to make their own labeling laws.
In 2008, the Ohio Department of Agriculture adopted a labeling rule that required dairy producers to be able to verify any claim that their milk is from cows not treated with artificial hormones. Labels also had to include the following disclaimer: “The FDA has determined that no significant difference has been shown between milk derived from rbST-supplemented and non-rbST-supplemented cows.”
Dairy producers were not allowed to label their products as having “No Hormones” or “No Artificial Hormones,” or as being “Hormone Free,” “rbST Free” or “rbGH Free.”
The International Dairy Foods Association and the Organic Trade Association challenged the rule in federal court, claiming it was unconstitutionally vague and violated their First Amendment rights and the dormant commerce clause.
A federal judge rejected the bulk of their claims, but acknowledged that the mandatory disclaimer might be cumbersome and costly to fit on small containers.
On appeal, the 6th Circuit struck down other key parts of the rule, including the ban on claiming milk is free of artificial hormones and the requirement that the disclaimers be formatted in a certain way.
Judge Ronald Lee Gilman cited the “paucity of evidence” that consumers would be misled if dairy processors used asterisks in their disclaimers, as the Ohio rule barred them from doing.
But the panel rejected the dairy industry’s remaining claims, including assertions that the rule violates the dormant commerce clause and discriminates against out-of-state producers.