Florida’s Definition Of Skim Milk As “Imitation Milk Product” Ruled Unconstitutional

The long-running legal battle over Florida’s definition of “skim milk” may have finally come to an end today, with a federal appeals court ruling that it’s unconstitutional for the state to require that unfortified skim milk be labeled “imitation milk product.”

Under Florida state law, “imitation milk products” are those foods that have the “physical characteristics, such as taste, flavor, body, texture, or appearance, of milk,” but do not fall within the state’s definition of “milk products” because they are “nutritionally inferior to the product imitated.”

In the state’s view, skim milk lacks vitamins and nutrients that are found in whole milk. Thus, a dairy must re-introduce those lost nutrients (primarily vitamin A) to skim milk in order to avoid the “imitation” label.

However, the folks at Ocheesee Creamery think this is a violation of their rights. In 2012, the Florida Dept. of Agriculture told them their skim milk would have to carry the wordy designation of “Non-Grade ‘A’ Milk Product, Natural Milk Vitamins Removed,” or NGAMPNVR if you’re into overly complicated acronyms.

Ocheesee sued the state in 2014, arguing that it violated the company’s First Amendment rights. The complaint alleged that the imitation milk product designation would “confuse and mislead its customers by mislabeling its safe, all-natural, pure skim milk.”

At a 2015 hearing in the dispute, it looked like the judge might be favoring the dairy’s argument.

“It’s hard to call this imitation milk. It came right out of the cow,” said the judge at the time. “Anyone who reads imitation skim milk would think it didn’t come out of a cow.”

However, in March 2016, that same federal judge granted summary judgment in favor of the state, noting that the widespread assumption that skim milk is just milk with less fat actually supports the state’s argument.

“[C]onsumers take for granted the nutritional value of skim milk without even knowing that the vitamins have been restored,” explained the judge in 2016. “The record includes a survey that confirms this conclusion: most consumers buy milk for its nutritional value, and most expect skim milk to include the same vitamin content as whole milk.”

Ocheesee appealed its case to the Eleventh Circuit Court of Appeals, which today ruled [PDF] against Florida.

Commercial speech enjoys fewer constitutional protections than individual expression, so it’s up to the courts to decide whether governmental restrictions on commercial speech go too far.

The 1980 Supreme Court ruling in Central Hudson Gas v. Public Service Commission of NY established a multi-part test for determining whether government restrictions on otherwise lawful commercial speech violate the First Amendment.

First among those is whether the speech being restricted is misleading or concerns an unlawful activity. The Eleventh Circuit concluded that the creamery’s actions were not unlawful, just its speech.

But is that speech misleading? The lower court had held that Ocheesee’s use of “skim milk” was inherently misleading because it did not agree with the state’s definition. However, the appeals panel notes that being inconsistent with a state’s definition doesn’t necessarily make a phrase misleading.

“All a state would need to do in order to regulate speech would be to redefine the pertinent language in accordance with its regulatory goals,” explains today’s order. “Then, all usage in conflict with the regulatory agenda would be inherently misleading and fail Central Hudson’s threshold test. Such reasoning is self-evidently circular.”

As for the lower court’s conclusion that the state’s particular “skim milk” definition is working, since most people assume skim milk is nutritionally equal to whole milk, the appeals court counters that this is really evidence of people being misinformed than it is some acceptance of the state’s labeling requirements: “unfamiliarity is not synonymous with misinformation.”

Another question raised in Central Hudson is whether the restriction is only as extensive as it needs to be to serve the government’s interest.

In that regard, the Eleventh Circuit found that the “State’s mandate was clearly more extensive than necessary to serve its interest in preventing deception and ensuring adequate nutritional standards.”

The judges said the state disregarded less restrictive and more precise means of communicating what is in the Ocheesee skim milk, like “allowing skim milk to be called what it is and merely requiring a disclosure that it lacks vitamin A.”