IJ Builds on Historic Free Speech Precedent by Suing the FDA

Business owners have the right to tell the truth. This might sound obvious, but the government sees things differently, particularly when it comes to businesses that make and sell food. At the federal level alone, hundreds of regulations govern how food can be labeled, prescribing everything from the percentage of cherries necessary for a product to be called a “fruit cocktail” to whether vegan mayonnaise may be labeled “mayo.”  And these so-called standard of identity regulations often result in labels that can be downright misleading to consumers.

That’s where IJ comes in. In fact, an IJ victory last spring before a federal court of appeals was the first time in U.S. history that a First Amendment challenge to enforcement of a food standard of identity prevailed. Now we are back for more, taking the fight to the feds and reining in broad and longstanding administrative overreach.

So-called standard of identity regulations often result in labels that can be downright misleading to consumers.

You may recall our case on behalf of Ocheesee Creamery in Florida’s Panhandle. Florida regulators told the little creamery’s owner, Mary Lou Wesselhoeft, that her all-natural skim milk could only be called “skim milk” if artificial additives were injected into it. With IJ’s help, Mary Lou fought back and won. Thanks to her historic victory holding that the government does not have the power to change the dictionary, Mary Lou is once again selling pure skim milk—and honestly labeling it as such.

But that ruling applied only to businesses in Florida. Now IJ is going nationwide. We are building on that historic victory by filing a First Amendment challenge against one of the nation’s biggest, baddest censors of commercial speech: the U.S. Food and Drug Administration.

Our client Randy Sowers simply wants to do the same thing as Mary Lou—label additive-free skim milk as “skim milk” and sell it to customers in Pennsylvania. To its credit, Pennsylvania has no objection. But because Randy’s business, South Mountain Creamery, sells across state lines, it is not up to Pennsylvania. It is up to the FDA.

Randy sells milk that has had the butterfat skimmed off, and ordinary people call that product “skim milk.”

Unfortunately for Randy and countless other entrepreneurs, the FDA says skim milk can only be called “skim milk” if artificial vitamins are added. In the mixed-up world of FDA regulations, pure, additive-free skim milk must be labeled as “imitation skim milk.”

Thankfully, the First Amendment does not allow the government to change the dictionary. Randy sells milk that has had the butterfat skimmed off, and ordinary people call that product “skim milk.” As already explained by the federal appellate judges in IJ’s Florida case, what matters for First Amendment purposes is whether customers understand what is being said, not what the government wishes words meant.

That is the precedent we established last spring, and that is the precedent we intend to strengthen through our new federal lawsuit against the FDA. Our lawsuit asks the federal court to issue an injunction ordering the FDA to stop forcing our nation’s farmers and creameries to mislead their customers.

A court victory in this case would accomplish more than merely allowing honest labels for pure skim milk. For the first time in the FDA’s history, a federal court will have told the agency that it does not possess the power to change our language. Regardless of whether you like your milk skim, 2 percent, or whole, we can all drink to that.

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