Florida Record

Thursday, April 2, 2020

Appeals court cites free speech in ruling for creamery in milk labeling case

By Melissa Busch | Apr 2, 2017

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The U.S. Court of Appeals for the Eleventh Circuit struck down a judgment that prevented a Florida creamery from labeling its all-natural product as skim milk because it lacked enough replenished vitamin A.

In October 2012, the Florida Department of Agriculture told Ocheesee Creamery, based in Altha, Florida, it had to stop selling its pasteurized skim milk or change its name to “imitation skim milk” because it did not contain enough vitamin A, which would be replenished after the skimming process. Florida’s nutritional guidelines require the vitamin to be present for it to be labeled skim milk.

On March 20, the appeals court vacated the judgment by the District Court for the Northern District of Florida, ruling that the state failed to show that forbidding the creamery from using the term “skim milk” was reasonable, according to court records.

The court stated that the state could use “less restrictive and more precise means” of having the creamery change its marketing, such as allowing the product to be called skim milk if it comes with a disclosure that it lacks vitamin A, according to the opinion.

“The State’s mandate was clearly more extensive than necessary to serve its interest in preventing deception and ensuring adequate nutritional standards,” according to court records.

In March 2016, the district court ruled in favor of the state, stating it is inherently misleading to a call product “skim milk” if doesn’t have the same vitamin content as whole milk, according to court records.

The decision triggered the creamery’s owner, Mary Lou Wesselhoeft, to file a freedom of speech lawsuit. Her complaint stated that the First Amendment prevents the government from ordering businesses to give customers confusing and misleading information.

“The sole issue on appeal is whether the State’s actions prohibiting the Creamery’s truthful use of the term 'skim milk' violate the First Amendment. We hold that they do,” according to the court opinion.

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Organizations in this Story

Florida Department of Agriculture and Consumer Services11th Circuit Court Of AppealU.S. District Court for the Northern District of Florida