Victory for Ocheesee Creamery in Federal Court of Appeals

Court Ruled That Florida Cannot Ban Business From Truthfully Labeling Its Skim Milk

Arlington, Va.—Late today, in a major victory for free speech, a three-judge panel from the 11th U.S. Circuit Court of Appeals unanimously ruled that it is unconstitutional for the Florida Department of Agriculture and Consumer Services (FDACS) to ban Ocheesee Creamery from honestly labeling its all-natural skim milk as “skim milk.” Today’s ruling means that the Florida Panhandle-based creamery and its owner, Mary Lou Wesselhoeft, are one step closer to being able to stock their shelves with milk bottles with a label that describes what exactly is in the bottle: skim milk.

In its decision, the court said “The Creamery’s use of the words ‘skim milk’ to describe its skim milk is not inherently misleading.”

“This decision is a total vindication for Ocheesee Creamery and a complete rejection of the Florida Department of Agriculture’s suppression of speech,” explained Justin Pearson, a senior attorney at the Institute for Justice, which is representing Ocheesee Creamery. “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. Today, thanks to the 11th Circuit, Mary Lou is no longer denied her First Amendment right to tell the truth.”

Five years ago, Ocheesee Creamery’s owner Mary Lou Wesselhoeft received an order from the Florida Department of Agriculture and Consumer Services: Either stop selling your pasteurized skim milk immediately or stop calling it pasteurized skim milk. FDACS decided what is commonly known as skim milk—whole milk with the cream skimmed off—cannot be called “skim milk” unless it is artificially injected with vitamin A.

FDACS demanded that Mary Lou either inject vitamin A into her skim milk before she can call it skim milk, or stop calling it skim milk and instead use a confusing and misleading label that calls it something it is not: Imitation Skim Milk.

As the court noted in its decision today, “It is undoubtedly true that a state can propose a definition for a given term. However, it does not follow that once a state has done so, any use of the term inconsistent with the state’s preferred definition is inherently misleading.”  Otherwise, the court noted, “[a]ll a state would need to do in order to regulate speech would be to redefine the pertinent language in accordance with its regulatory goals. . . . Such reasoning is self-evidently circular.”

As the court stressed, there were “numerous less burdensome alternatives” than “banning the term ‘skim milk’”—for example, an “additional disclosure” that “some vitamin A [is] removed by skimming.”

In fact, Mary Lou suggested other labels that would ensure customers know that her skim milk is only pasteurized skim milk without additives, not just a “milk product,” but FDACS rejected each one. As a result, she stopped selling her skim milk in October 2012, and after years of futile attempts to change FDACS’s decision, she teamed up with the Institute for Justice in November 2014 to challenge the law in federal court.

“I simply want to tell the truth about what is in the products I sell, and I did not like that the government wanted me to lie,” explained Mary Lou Wesselhoeft. “Today’s good news is proof that it is important to stand up for your rights when the government wants you to do something that is wrong.”

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