Company Tackles Food Labeling Limitations Proactively, But Loses

Typically, in the “Food Law” world, we see the FDA, state agencies, and consumer activists targeting food manufacturing companies through lawsuits alleging false or misleading labeling, hidden ingredients, and contaminated products which allegedly cause various degrees of harm to consumers.

Recently in Florida, a dairy creamery took another approach — and sued the Florida Commissioner of Agriculture, among others, to dispute limitations on labeling certain of its dairy products in a way that the company deemed disingenuous to its consumer. The Ocheesee Creamery sells itself as an old-fashioned, healthy dairy producer whose cows are grass-fed with no additives to the milk, of any kind. It is a family-run enterprise, and specifically markets to healthy and environmentally-conscious consumers. The milk products are higher in fat, but the operation is as far from the concept of a factory-farm production as can be — thereby appealing to a specific type of customer.

In an effort to reduce waste, the company started to sell the “skimmed” cream from its whole milk product and bottle and label it as skim milk. However, the labeling regulations in Florida required that any product identified as skim milk requires the addition of vitamins A and D. In line with the company’s philosophy, the skim milk product did not have any additives. But the name of the product matched exactly what the process of creating the product was, i.e., the ‘skim’ of milk.

The company made efforts to modify the labeling, including explanations that it did not include any added vitamins. But Florida rejected those, and the lawsuit was filed. Last week, the Judge granted the state’s motion for summary judgment against the company.  In short, the judge ruled that consumers are accustomed to skim milk as meaning a dairy product which has vitamin additives, and that labeling a product without such additives would cause unfair confusion.

The company plans to appeal, on a basic argument that the company has the right to tell its consumers the truth about its products, without the interference of the government changing the meaning of certain words.

In the land of food manufacturing, this case represents an intersection of all that is deemed a “hot topic.” Labeling, ingredients, quality, marketability and even, to a degree, freedom of speech, are seen from the proactive stance, rather than a defensive posture.   We will continue to monitor the appellate process and see what rights companies will ultimately have going forward.

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