The U.S. Court of Appeals for the Eleventh Circuit ruled last week that a Florida creamery’s use of the term “skim milk” on its product was protected by the First Amendment, even though the milk does not meet Florida’s Grade A requirements.
According to Florida state law, skim milk must meet the Grade A standards of the Pasteurized Milk Ordinance (PMO) and the nutrition requirements of both the federal standard of identity for milk and the National Labeling Education Act. These standards require companies to add back vitamin A lost during processing to remove the milkfat. Ocheesee Creamery makes and markets “all natural” milk and dairy products, including a skim milk product that does not have Vitamin A added back.
Florida’s Department of Agriculture and Consumer Services blocked sales of the creamery’s skim milk products, saying the company was misleading consumers about the milk’s nutritional value. The department said Ocheesee Creamery needed to obtain an Imitation Milk Permit to continue selling the skim milk product.
Ocheesee Creamery argued that Florida’s refusal to allow it to use the term “skim milk” on its products was a violation of its right to free speech under the First Amendment.
A three-judge panel at the Eleventh Circuit agreed with the creamery, saying the “state was unable to show that forbidding the creamery from using the term ‘skim milk’ was reasonable, and not more extensive than necessary to serve its interest” of protecting consumers. The panel also found that the creamery’s use of the term was “not inherently misleading.”
Members with questions may contact Clay Hough, IDFA senior group vice president and general counsel, at firstname.lastname@example.org, or Emily Lyons, IDFA director of regulatory affairs and counsel, at email@example.com.