Appeals Court Embraces Free Speech, Rules Skim Milk is ‘Skim Milk'

by Baylen Linnekin

"The leftover product is skim milk: milk that has had the fat removed through skimming." If those words—from a unanimous 11th Circuit Court of Appeals ruling earlier this week—sound like some sort of dicta—words in a court decision which represent a judge's ideas or observations but aren't part of the holding of the case and which, therefore, carry little legal weight—then it may surprise you to learn the question of whether all-natural skim milk is skim milk actually go to the heart of the case in question. The case, Ocheesee Creamery v. Putnam, has its roots in 2012, when Florida's state agriculture department ordered Ocheesee, a small creamery in the state's panhandle, to stop selling its skim milk. The state claimed Ocheesee's skim milk ran afoul of Florida's standard of identity for skim milk, which requires creameries and dairies to add vitamin A to their skim milk. In response, Ocheesee, which prides itself on its all-natural milks, proposed instead of introducing vitamin A additive to its milk to label its skim milk as "Pasteurized Skim Milk, No Vitamin A Added." The state rejected that label, telling Ocheesee they could sell their skim milk only if it were labeled as "Non-Grade 'A' Milk Product, Natural Milk Vitamins Removed" or, later, as "imitation skim milk." For a state that argued it was in the business of protecting consumers, and that Ocheesee's use of the term "skim milk" to describe its skim milk (ingredients: skim milk) was misleading, it's worth noting both of Florida's recommended terms for a skim milk that contains only skim milk are patently and grossly misleading. Ocheesee was forced to sue the state. Last year, the U.S. District Court sided with the Florida regulators. The appeals court win this week is an important victory not just for Ocheesee Creamery but also for free speech, consumers, small businesses, and food freedom. It's also a big win for the Institute for Justice, which represented the plaintiff creamery. "This decision is a total vindication for Ocheesee Creamery and a complete rejection of the Florida Department of Agriculture's suppression of speech," said Justin Pearson, a senior IJ attorney, in a statement this week. "Today, thanks to the 11th Circuit, [Ocheesee owner] Mary Lou [Wesselhoeft] is no longer denied her First Amendment right to tell the truth."...more