Family-Run Farm Sues FDA for Right to Say Skim Milk is Skim Milk

Institute for Justice · April 5, 2018

Harrisburg, Pa.—Does the government have the power to override common sense and force American businesses to lie to their consumers? According to a First Amendment lawsuit that South Mountain Creamery and the Institute for Justice (IJ) filed today against the U.S. Food and Drug Administration (FDA) in federal court, the answer is: Absolutely not.

For centuries, the general understanding of skim milk has been milk with the cream skimmed off. But in a regulation only Kafka could have written, the FDA has decided that skim milk can only be called “skim milk” if farmers add synthetic vitamins that consumers can naturally get from plenty of other drinks or foods. If farmers like Randy Sowers and his wife Karen of South Mountain Creamery want to sell pasteurized, all-natural skim milk without added chemicals, the federal government forces them to lie to customers by labelling it as “imitation skim milk” or “imitation milk product.”

“The government does not have the power to change the meaning of words or ignore common sense,” said Justin Pearson, a senior attorney with the Institute for Justice, which represents South Mountain Creamery in court. “The FDA is creating confusion where there was none whatsoever. People know what skim milk means, but they have no idea what ‘imitation milk product’ means. Pure, all-natural skim milk is not an ‘imitation’ of anything.”

The Sowers family operates South Mountain Creamery on their dairy farm near Frederick, Maryland. The creamery produces delicious milk, yogurt and cheese, among other tasty foods that the family-run business has been selling for years to eager customers in Maryland. Last fall, Randy contacted the Pennsylvania Department of Agriculture to find out whether he could sell all-natural skim milk without added chemicals as “skim milk” in Pennsylvania. State officials have no objection to the commonsense use of the term, “skim milk,” but because Randy wants to sell in multiple states, they are forced to follow federal regulations. That means Randy’s plan is a no-go, thanks to the FDA. So he’s taking his fight to court.

“I just want to sell the purest, most natural skim milk possible without being forced to confuse my customers,” Randy said of the lawsuit. “I’ve already fought the federal government before, when the IRS stole my money using civil forfeiture. Now I’m ready to fight back against the federal government again for my right to honestly market my milk.”

This case is Randy’s second major fight with the federal government. In February 2012, the Internal Revenue Service (IRS) seized $60,000 from Randy’s farm for so-called “structuring.” Structuring laws were intended to target hardened criminals evading bank reporting laws to hide serious crimes but have been frequently applied against innocent small business owners guilty of nothing more than doing business in cash. The IRS returned Randy’s money and reformed its law enforcement practices after IJ intervened on Randy’s behalf.

With this new lawsuit, Randy aims to once again stop a federal agency from infringing on Americans’ constitutional rights. Milk contains healthy vitamins and minerals that are naturally stored in either water or fat. Because skim milk is made by removing the fat from whole milk, skim milk has more water-soluble nutrients like calcium but lacks fat-soluble vitamins A and D. The FDA requires dairy farmers to add synthetic versions of those lost vitamins to skim milk in order to label skim milk as “skim milk.” Without the fat of whole milk, the vitamins break down in skim milk before reaching consumers. In other words, the FDA manages to confuse American milk drinkers without providing any health benefits.

“The federal government should be in the business of protecting public health and safety, not forcing hardworking entrepreneurs to lie about their products,” said IJ attorney Anya Bidwell. “Pasteurized, all-natural skim is safe to drink and legal to sell. It’s time for the FDA to stop fighting common sense and allow farmers to market pure skim milk honestly to their customers.”

Today’s case is part of IJ’s National Food Freedom Initiative. 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. Beyond defeating Florida’s FDA-inspired ban on accurately labeling all-natural skim milk, IJ has won a free speech challenge to Oregon’s raw milk advertising ban, and the Institute’s lawsuit against restrictions on Minnesotans’ right to sell home-baked goods led the state legislature to change the law.