Federal appeals court sides with small dairy farm against state regulators

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Dairy wins right to call skim milk “skim milk”

By William Patrick,

Justin Pearson, the dairy’s attorney, said the state’s actions equate to the “suppression of speech.”

“All Mary Lou wants to do is sell skim milk that contains literally one ingredient – pasteurized skim milk – and label it as pasteurized skim milk,” he said.

Pearson is a senior attorney for the Institute for Justice, a public interest law firm that began representing Wesselhoeft without charge in 2014.

The 11th Circuit’s decision vacates a district court ruling that said the department acted within its legislatively delegated authority to regulate commercial speech.

The appeals court, however, determined there were “numerous less burdensome alternatives” than “banning the term skim milk,” such as including an additional disclosure that some Vitamin A is removed by skimming.

In 2013, Wesselhoeft proposed an array of alternative labels, including “Pasteurized Skim Milk: No Vitamin A Added,” “Pasteurized Skim Milk: No Lost Vitamin A Replaced,” and “Pasteurized Skim Milk: Most Vitamin A Removed by Skimming Cream from Milk.”

The Department of Agriculture rejected her suggestions.

Pearson told Watchdog.org in a previous interview that amicus briefs were filed by large farm organizations, including the powerful International Dairy Foods Association, on behalf of the state government’s position.

“It’s clear that giant international dairy farmers don’t like the idea that small, authentic creameries could offer alternative choices. I don’t think that’s a coincidence,” he said.

The dairy’s lawsuit didn’t seek monetary damages, only the ability to call its product skim milk.