Judge Denies Florida’s Motion to Dismiss Ocheesee Creamery Free Speech Lawsuit 

J. Justin Wilson
J. Justin Wilson · February 10, 2015

Tallahassee, Fla.—Late on Monday, February 9, a federal court denied Florida’s motion to dismiss a First Amendment lawsuit brought by a small creamery located in the Florida panhandle. The court also denied the state’s request that the Department of Health and Human Services be added as a defendant to the lawsuit.

This ruling by Judge Robert L. Hinkle of the U.S. District Court for the Northern District of Florida is part of a legal challenge filed in November 2014 by Ocheesee Creamery owner Mary Lou Wesselhoeft and the Institute for Justice. The creamery sold skim milk that had one ingredient, pasteurized skim milk, and wanted to label it as pasteurized skim milk. But two years ago, Ocheesee Creamery owner Mary Lou Wesselhoeft received an order from the Florida Department of Agriculture and Consumer Services (DACS): Either stop selling your pasteurized skim milk immediately or stop calling it pasteurized skim milk.

For more on the lawsuit, visit www.ij.org/florida-skim-milk.

DACS has 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. DACS has demanded that Mary Lou either inject vitamin A before she can call it skim milk, or use a confusing and misleading label that calls it something it is not: Non-Grade ‘A’ Milk Product, Natural Milk Vitamins Removed. Mary Lou suggested other labels that would ensure customers her skim milk is only pasteurized skim milk, not just a “milk product,” but DACS rejected each one.

“Ordering businesses to confuse their customers is nothing more than flat out censorship,” explained Justin Pearson, managing attorney of the IJ Florida office and lead attorney on the case. “Yesterday’s ruling means we are one step closer to vindicating the right of this small business to tell its customers the truth.”

This 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. 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, Florida, and the right to sell home-baked goods in Minnesota.