Justin Pearson and Ari Bargil
Institute for Justice Florida
Mary Lou Wesselhoeft of Ocheesee Creamery wanted her skim milk to be labeled just that.
Fat-soluble Vitamin A is skimmed off with the lighter fat when cream is removed to make skim milk, and Ocheesee’s additive-free commitment meant it wouldn’t replace the vitamins.
But the state Department of Agriculture and Consumer Services insisted on a label saying “imitation” or “milk product” because Wesselhoeft didn’t replenish the lost vitamins as required by state regulations. Two stop-sale orders were issued in 2012.
The all-natural milk producer in rural Calhoun County“ felt like she was banging her head against the wall,” Justin Pearson, managing attorney of the Institute for Justice Florida office, wrote in a motion. The Miami office is part of a nonprofit libertarian public interest law firm based in Virginia.
State Agriculture Commissioner Adam Putnam was sued in 2014 for rejecting five proposed labels.
U.S. District Judge Robert Hinkle rejected a First Amendment claim of protected commercial speech and issued a summary judgment in favor of the state.
The U.S. Court of Appeals for the Eleventh Circuit reversed him in March, ruling “the Creamery’s label does not concern unlawful activity and is not inherently misleading.”
In litigation over fees, the state asked for a reduction, claiming the creamery met with only limited success. Hinkle concluded, “As a practical matter, the plaintiff prevailed completely.”
Florida has agreed to pay $428,855 in legal fees to the pro bono attorneys who beat the state,
Pearson called the decision “the first of a kind in litigation regarding food labels.”
Milk has been a point of contention for the Institute for Justice before. Its defense of an Oregon dairy that produced raw milk fought an advertising ban with state regulators, and the Legislature repealed the ban in 2015.