A Florida federal court has rejected a Florida dairy farmer’s challenge to the state’s standard of identity for skim milk, which dictates that its nutrient content must be the same as that of unfortified whole milk, requiring the addition of vitamin A after processing. Ocheesee Creamery v. Putnam, No. 14-0621 (N.D. Fla., Tallahassee Div., order entered March 30, 2016). The farmer’s company, Ocheesee Creamery, skimmed the cream from milk and sold the leftover product as “skim milk” without fortifying it with vitamin A. Florida inspectors told the dairy farmer she must adjust the nutrient level or label the milk “imitation,” and she filed a lawsuit challenging the rule. Additional details on the case appear in Issue 555 of this Update.

The court found that the state standard of identity and its federal counterpart in the federal Food, Drug, and Cosmetic Act “easily pass muster” under the First Amendment test for commercial speech. “Ocheesee cites dictionary definitions that describe skim milk as precisely what Ocheesee sells: milk from which the cream has been skimmed,” the court notes. “And it is undoubtedly true that a typical consumer would think ‘skim milk’ is simply milk from which the cream has been skimmed. Far from a condemnation of the standard of identity and nutritional standards for skim milk, these sources show how well the standard of identity and nutritional standard have worked: consumers take for granted the nutritional value of skim milk without even knowing that the vitamins have been restored.”