Mary Lou Wesselhoeft and her husband Paul Wesselhoeft own Ocheesee Creamery, a small creamery with three employees in the Florida Panhandle. 1
The creamery started out selling cream skimmed from all-natural, pasteurized whole milk to families and coffee shops in the local area. Skimming the cream from whole milk, however, resulted not only in cream, but skim milk as well. Almost a decade ago, Ocheesee Creamery started selling skim milk in addition to its cream.
Because of the all-natural dairy philosophy that Mary Lou follows, she added nothing to the creamery’s skim milk. It contained exactly one ingredient—pasteurized skim milk—and she labeled it as exactly that: “pasteurized skim milk.” It was routinely tested and approved as safe by the Florida Department of Agriculture and Consumer Services (“DACS”), and Ocheesee’s customers loved it. In fact, many of them purchased it precisely because it had no additives, and none of them were ever confused by the easy-to-understand label.
The Government Bans Honest Speech
On October 9, 2012, however, DACS ordered Ocheesee Creamery to immediately cease selling its “pasteurized skim milk.” According to DACS, skim milk can only be sold as “skim milk” if it contains the same amount of vitamin A as whole milk. Because vitamin A is fat soluble and is largely removed when cream is skimmed from whole milk, DACS demanded that Ocheesee either: (1) artificially inject its milk with vitamin A additive; or (2) stop calling it “skim milk.” To continue selling, DACS insisted, the creamery would have to instead label it “Imitation Skim Milk.” DACS also demanded that the creamery refrain from discussing “any nutrient or health claims” on the label.
Because of her all-natural approach, Mary Lou refused to inject vitamin A additive into Ocheesee’s skim milk. Using the DACS-mandated label, however, also was not an option, because Mary Lou knew it would confuse and mislead the creamery’s customers, which she refuses to do. Accordingly, Mary Lou made the difficult—and financially taxing—choice to stop selling skim milk.
The label that DACS demands Ocheesee use is misleading for several reasons. First, the term “milk product” implies—indeed, states—that the creamery’s skim milk is not milk at all, but rather some kind of artificial milk “product.” It also gives the false impression that the creamery’s skim milk is more processed and less natural than other skim milk when the exact opposite is true. And the phrase “Imitation Skim Milk” suggests that the skim milk is not skim milk, even though DACS admits that the only ingredient is pure, all-natural skim milk.
Perhaps what is most offensive, however, is that Mary Lou proposed—and DACS rejected—numerous simpler, clearer labels that would simultaneously explain the reduced vitamin A levels and still truthfully call the milk “skim milk.” In fact, Mary Lou even proposed using the government’s confusing and misleading label so long as she could add some language of her own to help clear up any confusion. DACS rejected this proposal as well.
The state of Florida agrees that Ocheesee Creamery’s skim milk is all-natural. It agrees that the creamery’s skim milk is safe to drink without the vitamin A additive. And it agrees that the creamery’s skim milk is legal to sell without the additive. Nevertheless, it flatly prohibits the creamery from calling its skim milk what it is: “skim milk.” Instead, it is ordering the creamery to confuse and mislead Florida consumers, which Mary Lou will not do.
The Right To Tell the Truth
The U.S. Supreme Court has repeatedly held that the First Amendment protects commercial speech. In fact, the Court has even recognized that a “consumer’s interest in the free flow of commercial information . . . may be as keen, if not keener by far, than his interest in the day’s most urgent political debate.” 2
The Court has also explained that this right to speak includes “the choice of what not to say.” 3
Yet, these protections have not dissuaded government officials from trying to prevent honest, clear speech. For example, officials in Kentucky ordered nationally-syndicated advice-columnist John Rosemond to refrain from publishing his advice column or face fines and jail because they believe his column constitutes the “unlicensed practice of psychology.” 4
Florida has violated Mary Lou’s First Amendment rights in several ways. First, it is unconstitutional for the government to ban her from honestly and accurately labeling her pasteurized skim milk as “pasteurized skim milk.” The U.S. Supreme Court has clearly held that the government can only censor truthful commercial speech in order to directly further a substantial government interest in a way that is no more extensive than necessary. 5
Under any definition of skim milk used by Mary Lou’s customers or society as a whole, the creamery’s label was honest and accurate.
Second, it is unconstitutional for the government to order the creamery to label its pasteurized skim milk as “Imitation Skim Milk.” The U.S. Supreme Court has also explained that, where there was no prior deception by the business, the government cannot mandate unwanted commercial speech if the government’s goals can be met in a less-burdensome manner. 6
But in this case, nobody was ever deceived by Mary Lou’s accurate description of pasteurized skim milk as “pasteurized skim milk.” And Mary Lou suggested numerous less-burdensome alternative labels, but the government rejected them all.
Third, it is unconstitutional for the government to prohibit the creamery from providing honest and accurate information that might help mitigate the harm caused by the misleading label mandated by the government. It was bad enough that the government would not let the creamery describe skim milk as skim milk and that it ordered Mary Lou to use a confusing and misleading label instead. But it is even worse for the government to forbid her from trying to reduce some of this harm by supplying her customers with additional truthful and verifiable information.
In short, although the government may prefer that people only drink skim milk with extra vitamin A, the First Amendment “places limits on policy choices available to the States.” 7
“[B]ans against truthful, nonmisleading commercial speech” violate those limits because they “usually rest solely on the offensive assumption that the public will respond ‘irrationally’ to the truth.” 8
Government has no permissible interest in “keep[ing] legal users of a product or service ignorant in order to manipulate their choices in the marketplace,” 9
and the “First Amendment directs us to be especially skeptical of regulations that seek to keep people in the dark for what the government perceives to be their own good.” 10
Mary Lou and her husband Paul own Ocheesee Creamery, located in rural Calhoun County, Florida. Ocheesee Creamery is the named plaintiff in the lawsuit.
The defendants in this case are the Florida Commissioner of Agriculture Adam Putnam and Bureau of Dairy Industry Chief Gary Newton. They are sued in their official capacities only; no monetary damages are sought.
The Legal Team
The litigation team will consist of Justin Pearson, managing attorney of IJ’s Florida office. 11
IJ’s National Food Freedom Initiative
This case is part of IJ’s National Food Freedom Initiative, which IJ launched in November 2013. This nationwide campaign brings property rights, economic liberty and free speech challenges to laws that interfere with the ability of Americans to produce, market, procure and consume the foods of their choice. 12
IJ has won a free speech challenge to Oregon’s raw milk advertising ban and is currently litigating cases challenging restrictions on the right to grow front-yard vegetable gardens in Miami Shores, Fla. and the right to sell home-baked goods in Minnesota.
For more information, contact:
Assistant Director of Communications
Institute for Justice
901 N. Glebe Road, Suite 900
Arlington, VA 22203
(703) 682-9320, ext. 229