FDA Skim Milk

South Mountain Creamery

Randy Sowers and his wife Karen are dairy farmers in northern Maryland. They bought their farm in 1981, when they rented 152 acres of land and obtained a loan to buy 100 cows. The farm now covers over 2,000 acres, employs over 75 people, and delivers to over 10,000 families in a handful of states. It is also the home of their creamery—South Mountain Creamery—where they produce delicious milk, yogurt and cheese, among other tasty products. ¹

Randy and Karen believe in responsible farming. Their cows are pasture-raised, their chickens are cage-free, and their dairy products are as pure and additive-free as the law allows. That’s why Randy has repeatedly asked state and federal agencies over the years to allow South Mountain to sell pure skim milk without any additives and call it what it is: skim milk. But the government always says no.

Randy is proud of his products and wants to use clear, accurate labels explaining precisely what is and is not in each bottle. But the FDA demands that he instead mislead his customers with confusing, inaccurate labels designed to discourage consumers from buying his natural products. So now he’s fighting back.

FDA’s Rules Prevent Randy from Selling Additive-Free Skim Milk and Speaking Honestly about It

Skim milk is just milk with the cream skimmed off. It is higher in water-soluble nutrients, like calcium, than whole milk, but it is lower in the fat-soluble nutrients—like vitamins A and D—found in the cream.

Rather than allowing customers to choose the type of milk they prefer, the FDA has decided to manipulate consumers by creating confusion where none existed. The FDA has decreed that skim milk can only be labeled as skim milk if artificial vitamin A and D additives are injected into it. In reality, this regulatory gimmick fails because the vitamin additives quickly dissolve without fat to protect them, meaning that very little make it to the consumer. But none of that matters to the FDA, which requires manufacturers of all-natural skim milk to label their product “imitation.” Failing to do that can result in fines of $1,000 per offense and the complete closure of the creamery.

Randy is committed to one day being able to sell all-natural, additive-free skim milk and truthfully label it as such. In October, 2017, he contacted the Pennsylvania Department of Agriculture to find out whether he could sell additive-free skim milk as skim milk in Pennsylvania. He suggested that he would be open to many alternative labels, provided that he is not forced to confuse customers by describing pure skim milk as an imitation. The Pennsylvania Department of Agriculture wrote back, explaining that labeling his skim milk as something other than “imitation” would violate FDA regulations. Because South Mountain would be selling products across state lines, Pennsylvania officials are forced to follow federal regulations. However, if the FDA were to no longer object to Randy’s business, then Pennsylvania would not either. Sadly, the FDA is determined not to let common sense, the Pennsylvania Department of Agriculture, or Randy and his customers get in the way of their efforts to manipulate American consumers.

Now Randy is taking steps to stop the FDA’s ban of honest labels. He is suing the FDA in federal court in the Middle District of Pennsylvania for violating his constitutional right to free speech.

The U.S. Constitution Guarantees the Right to Tell the Truth

The First Amendment protects the right of business owners to tell the truth, and that includes the right to use common, well-understood terms to describe products. That protection applies to skim milk, just like any other product. When the Florida Department of Agriculture tried to stop a Florida creamery from honestly labeling its pure skim milk as skim milk under state law, the 11th U.S. Circuit Court of Appeals overturned the law as a violation of the creamery’s First Amendment rights. The Constitution does not give the government the power to change the dictionary, and the common understanding of the term, “skim milk,” has not changed in hundreds of years. ²

As in the Florida case, the FDA’s violations of Randy’s First Amendment rights are two-fold. First, the government cannot ban Randy from saying that skim milk is skim milk. The government bears the burden of proving that censorship is justified by showing that the censorship directly furthers a substantial government interest in a way that is no more expansive than necessary. ³ The government does not have any substantial interest in preventing a person from fully and accurately telling the truth, especially when the person is proud of his product and keeps offering to provide extra information to customers.

Second, the government cannot force Randy to lie to his customers and label his pure, additive-free, all-natural skim milk as “imitation skim milk” or “imitation milk product.” In cases like Randy’s, where there was no prior deception by the business, the government can only compel speech if its goals cannot be met in a less burdensome manner. ⁴ But the government’s goals of ensuring that consumers know the vitamin content of their skim milk can undoubtedly be met in a less burdensome manner. Forcing pure skim milk to be mislabeled as imitation skim milk only increases customers’ confusion, which is the opposite of the stated goal.

Randy has already proposed numerous less-burdensome alternative labels using plain language that his customers will actually understand. One example is:

PURE PASTEURIZED SKIM MILK
NO VITAMINS ADDED OR REPLACED
THE ONLY INGREDIENT IS SKIM MILK

The bottom line is that the First Amendment does not allow the government to prohibit businesses and consumers from using ordinary words the way they are defined in the dictionary.

The Plaintiff   

Randy and Karen Sowers are the founders of South Mountain Creamery, located in Middletown, Maryland. South Mountain Creamery is the named plaintiff in the lawsuit. They are seeking only the right to truthfully label their product “skim milk.” They are not seeking any money damages. If they prevail, the precedent set will not only protect South Mountain Creamery, but also countless other farmers who simply want to be able to tell the truth about their all-natural products.

The Defendants

The defendants are the United States Food and Drug Administration (the “FDA”), FDA Commissioner Scott Gottlieb, and Pennsylvania Secretary of Agriculture Russell C. Redding. The personal defendants are sued in their official capacities only.

The Legal Team

The litigation team consists of IJ senior attorney Justin Pearson and IJ attorney Anya Bidwell. Justin Pearson previously represented Ocheesee Creamery in the successful challenge against Florida’s similar regulations. They are being assisted by their local counsel, John DeSantis of DeSantis Krupp.

IJ’s National Food Freedom Initiative

This case is part of IJ’s National Food Freedom Initiative, which IJ launched in November 2013. The initiative is a nationwide campaign that asserts property rights, economic liberty, and free speech challenges to laws that stand in the way of Americans who produce, market, procure and consume the food of their choice. IJ has won free speech challenges to Florida’s prohibition on labeling additive-free skim milk as skim milk and to Oregon’s raw milk advertising ban. It also won constitutional challenges to Minnesota’s and Wisconsin’s restrictions on the right to sell home-baked goods. IJ is currently litigating cases challenging New Jersey’s ban on selling home-baked goods and Texas’s ban on craft beer manufacturers receiving compensation when their territorial rights are transferred to distributors. Earlier in its history, IJ won a United States Supreme Court case vindicating the right of wineries to sell directly to consumers across state lines. ⁵