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Fla. Creamery Can’t Call |Its Product ‘Skim’ Milk’

(CN) - A small North Florida creamery can't label its pasteurized skim milk "skim milk" because it doesn't inject additives into it, a federal judge ruled.

The Ocheesee Creamery, operating out of a family farm in Calhoun County, Fla., sued state Agriculture Commissioner Adam Putnam and Bureau of Dairy Industry Gary Newton in Tallahassee Federal Court in November 2014.

In its complaint, the creamery said it was trying to "vindicate its right to label skim milk in an honest, clear and non-misleading manner."

It said it has sold its milk, labeled "pasteurized skim milk" for years, but in 2012 the state ordered it to either "inject an artificial additive into the skim milk; or re-label the skim milk to comply with Florida's labeling requirements for 'imitation milk product.'"

"Complying with the imitation milk product labeling requirements would include using the confusing and misleading label 'Non-Grade A Milk Product, Natural Milk Vitamins Removed" instead of the clear, honest label of 'pasteurized skim milk,'" the complaint said. "The Creamery refuses to inject its skim milk with any additives, and it likewise refuses to confuse and mislead its customers by mislabeling its safe, all-natural, pure skim milk."

But U.S. District Judge Robert Hinkle sided with the state on Wednesday, holding that the government has a right to set standards for milk products.

In doing so, Hinkle acknowledged the First Amendment's protection of free speech extends to commercial speech, and that this was confirmed by the U.S. Supreme Court's decision in Central Hudson Gas & Electric Corp. v. Public Service Commission of N.Y.

Under Central Hudson, a restriction of commercial speech is valid only if the government interest in restricting the speech is "substantial"; if the challenged restriction directly advances the asserted government interest; and if the restriction is not more extensive than necessary to serve that interest."

"Ocheesee says that under the First Amendment and Central Hudson, Ocheesee has a right to label its vitamin-deficient nonfat milk as 'skim milk,' even though the product does not meet the standard of identity for skim milk established long ago at both the federal and state levels," Judge Hinkle wrote. "Ocheesee says this is so because its vitamin-deficient nonfat milk is wholesome, not harmful, and nobody has been misled or otherwise complained."

But Hinkle said that if this assertion were sustained it would "initiative a frontal assault on the Federal Food, Drug, and Cosmetic Act and its state counterparts, whose validity was established long ago."

Hinkle held that as a general matter, federal and state identity and nutrition standards for foods "easily pass must under Central Hudson."

"So does the specific standard of identity and nutritional standard for skim milk," he said.

Ocheesee wasn't deceiving the public by calling its product skim milk, Hinkle said. The creamery was literally selling milk from which the cream had been skimmed.

But the judge went on to say that consumers take it for granted that the nutritional value of skim milk is the same as the whole milk from which it is made because vitamins removed with the cream have been restored.

"Most consumers buy milk for its nutritional value, and

most expect skim milk to include the same vitamin content as whole milk," Hinkle wrote.

"In any event, even if it would not mislead consumers to affix a 'skim milk' label to Ocheesee's vitamin-deficient nonfat milk, the ban on calling the product 'skim milk' still would survive Central Hudson scrutiny," the judge said. "The governmental interest in establishing a standard of identity and nutritional standards for milk is substantial. The challenged restriction directly advances that interest; indeed, the match is nearly perfect. And the restriction is not more extensive than is necessary to serve that interest; a standard of identity works only if products that do not meet the standard cannot appropriate the identity."

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