Circuit court calls part of Ohio’s milk labeling law unconstitutional

(Reporter Chris Kick also contributed to this article.)

SALEM, Ohio — Milk in Ohio can soon be labeled according to what is not in it, according to a decision by the 6th U.S. Circuit Court of Appeals.

The court handed down the decision Sept. 30, following two years and three months of deliberations. The three-judge panel reversed a district court decision that would have allowed the state to regulate use of compositional claims and to dictate the placement of disclaimer statements on milk.

Background

A 2008 executive order from Ohio Gov. Ted Strickland permitted a milk label claim of “from cows not supplemented with rbST”, if the claim was verifiable, but not a “compositional claim” like “rbST-free.”

The original Ohio Department of Agriculture rule said the label must also include a U.S. Food and Drug Administration disclaimer stating, “no significant difference has been shown between milk derived from rbST-supplemented and non-rbST-supplemented cows,” and dictated the placement, font and size of the disclaimer.

RbST, or recombinant bovine somatatropin, is a synthetic growth hormone used to stimulate milk production in dairy cattle. The bovine somatotropin hormone is also present naturally in cattle.

The original lawsuits were filed by the International Dairy Foods Association, and the Organic Trade Association, claiming the regulation violated their First Amendment rights and a commerce clause.

The new court ruling overturning the district court means processors can use the compositional claim “rbST-free” or “rbGH-free,” and eliminated the formatting requirements on the required disclaimer, allowing for an asterisk-type disclosure instead.

Truthful information

IDFA and OTA expressed their satisfaction with the decision and said it ensures the constitutional right of free speech and information.

“We’re pleased with the decision and feel that the court upheld our position that IDFA members have the constitutional right to make truthful and not misleading claims on their product labels,” said Clay Hough, IDFA senior group vice president, in a released statement.

Organic Trade Association spokespeople said in a released statement, they agree with giving consumers the right to “truthful information.”

“OTA believes consumers have a right to know how their food was produced, and organic farmers and manufacturers should be allowed to tell them,” said Christine Bushway, CEO of OTA. “We are pleased the court agrees.”

The court concluded the state’s current ban on such labeling is “more extensive than necessary to serve the state’s interest in preventing consumer deception.”

The court, however, ruled the processors’ claims that the rule was protectionist had no merit.

Is there difference?

In 1993, the Food and Drug Administration “found that there was no significant difference between milk from treated and untreated cows.”

A panel of physicians, nutritionists and animal scientists completed a review of the research relevant to recombinant bovine somatotropin (rbST) in the fall of 2009 and found no link to human health risks from drinking milk.

In its ruling, however, the 6th U.S. Circuit Court of Appeals said “a compositional difference does exist between milk from untreated cows and conventional milk” (milk from cows treated with rbST), citing information presented by IDFA and OTA. The court also used the plaintiffs’ documents that stated milk from treated cows contains higher somatic cell counts, which is an indicator of poor milk quality.

Still discussing

The Ohio Department of Agriculture, the defendants in the case, produced a media statement, but is still reviewing the court’s decision.

“We are pleased that the Sixth Circuit has upheld many aspects of the rule, including the requirement that labels stating that milk has been produced without the use of rbST be accompanied by a disclaimer to prevent misleading Ohio consumers,” said an ODA spokeswoman.

“We are reviewing the decision with the Ohio Attorney General, who serves as the department’s legal counsel, and we cannot comment at this time on the future course of this litigation.”

Not over

The circuit court sent part of the case back to the district court for further proceedings, specifically related to the use of such claims as “antibiotic free” and “pesticide free.”