Justin Pearson · September 8, 2021

As part of the Institute for Justice’s 30th Anniversary celebration (1991-2021), our “IJ Works Wonders” series looks back on IJ cases that fundamentally transformed the law and the lives of our clients.

Dairy farmer Mary Lou Wesselhoeft could not believe what she was hearing. Government officials were ordering her to lie to her customers. “When they told me, I thought they must have fallen and bumped their heads,” Mary Lou said.

Mary Lou and her husband Paul own a small dairy farm and creamery in the Florida Panhandle. They do everything the right way. To Mary Lou and Paul, that also means refusing to add any artificial ingredients. They pasteurize their milk, but that just means that they warm it up. Customers drive from far away to purchase their pure, additive-free dairy products from Mary Lou and Paul instead of buying milk at their local grocery store.

The milk’s purity was the problem. Pushed by giant dairy conglomerates, the FDA had enacted labeling regulations that prioritized the giant companies’ economies of scale over local processes and consumer choice. Smaller farmers hated that approach, but many states, including Florida, copied those regulations anyway.

Those regulations defined skim milk as having three ingredients. The first ingredient was skim milk. The other two were artificial vitamin additives. Because May Lou’s skim milk was pure skim milk without the additives, the regulations said that it could not be called skim milk. Instead, it must be called the opposite—“imitation skim milk.”

This Mary Lou refused to do. She still sold cream, which meant that she still had skim milk left over, but she literally poured it down the drain rather than call it something that it was not. It cost the creamery a lot of money and almost put them out of business, but Mary Lou refused to violate her principles.

She also spoke with lawyers, but they kept telling her the same thing: No one had ever won a First Amendment challenge against this type of regulation, known as a food standard of identity. “You will not be the first,” they warned her.

Eventually, she found IJ’s website and submitted a potential case form. Where others saw futility, we saw an opportunity to change the precedent for everyone.

We realized that the precedent mentioned by the other lawyers had an underlying weakness. It was created during a different period when food labels and all other speech proposing commercial transactions received no First Amendment protection at all. But times had changed. Now, commercial speech receives at least some First Amendment protection. And under the modern approach, a strong argument could be made on Mary Lou’s behalf.

It was not easy. Not only did we need to take on the government’s lawyers and 80 years of bad precedent, but we needed to take on the giant dairy conglomerates’ lawyers too. They were not about to let little Mary Lou Wesselhoeft from the Florida Panhandle destroy their protectionist work without a fight. So, they filed a brief asking the court to rule against Mary Lou.

Despite the overwhelming odds against us, in 2017, we won. The federal appeals court ruled in May Lou’s favor and issued a broad, game-changing holding. The court explained that the government does not have the power to change the dictionary. What matters is the way the food terms are commonly understood by the public, not what government regulators wished those words meant. And to the consuming public, skim milk has always meant milk with the cream skimmed off, just like the skim milk that Mary Lou had been selling.

The impact has been huge, and not just for Mary Lou. News of our historic win was covered in countless major media outlets and legal publications. There was now a new tool in lawyers’ toolboxes, and we have enjoyed watching lawyers around the nation utilize it.

Here at IJ, we have already used it too. We followed up Mary Lou’s win by challenging the federal regulation that Florida had copied. The FDA responded by filing an affidavit saying that because of the precedent created in Mary Lou’s case, they were no longer going to enforce that regulation anywhere in the nation.

For that same reason, when Mississippi passed a law proposed by cattlemen’s trade associations banning terms like “veggie burgers,” the government responded to our lawsuit by quickly throwing in the towel. Again, they recognized that the logic from Mary Lou’s court ruling likely applied to them too. After all, the public understands what veggie burgers are, even if powerful groups hate the competition.

This type of work is only possible at IJ. We see opportunities and legal arguments that others do not, and we apply our knowledge to maximize the impact for everyone. Nowhere is that truer than when we win cases that everyone else said could not be won—just like we did for Mary Lou’s right to tell the truth.

Justin Pearson is a managing attorney with the Institute for Justice.

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