The Sixth Circuit Court of Appeals has determined that parts of an Ohio law regulating the use of labeling on dairy products from cows not treated with growth hormones violate the First Amendment. Int’l Dairy Foods Ass’n v. Boggs, Nos. 09-3515/3526 (6th Cir., decided September 30, 2010). The court also upheld other provisions and remanded parts of the rule relating to antibiotics and pesticides for further proceedings. Thus, the court overturned, in part, a district court determination that upheld most of the rule’s provisions.  

The Ohio Director of Agriculture adopted a rule in May 2008 that (i) prohibited dairy producers from claiming their milk was hormone free (a composition claim) and (ii) placed stringent restrictions on the use of the claim “this milk is from cows not supplemented with rbST [recombinant bovine somatotropin or recombinant bovine growth hormone (rbGH)]” (a production claim). Among other matters, the latter require verification, and contiguous labeling in a defined font, style, case, color, and size stating “The FDA has determined that no significant difference has been shown between milk derived” from hormonesupplemented and non-hormone-supplemented cows. Food and Drug Administration (FDA) guidelines do not allow the use of “rbGH-free” or “rbST-free” labeling and call for the use of an asterisk where production claims are made with the additional information, “[n]o significant difference has been shown between milk derived from rbST-treated and non-rbST-treated cows.”  

Organizations representing both conventional and organic dairy producers filed challenges to the rule, and the district court upheld the rule on all but one of the claims. The court granted the state partial summary judgment as to the rule’s restrictions on production claims due to an undeveloped factual record on whether the requirements were unduly burdensome as applied to small containers. The dairy producers filed an interlocutory appeal, limited to their First Amendment and Commerce Clause claims.  

Citing evidence in the record which showed that the milk of treated and nontreated cows actually does differ in composition, the appeals court concluded that “composition claims like ‘rbST free’ are not inherently misleading.” Because the state failed to prove that Ohio consumers have been misled by dairyproduct labeling and that the rule was more extensive than necessary to serve the state’s interest, the court determined that the state could not ban composition claims, but could require a disclaimer to inform consumers that rbST has yet to be detected in conventional milk.  

As to the production-claim restrictions, the court found no error in the district court’s determination that a disclosure requirement is reasonably related to the state’s interest in thwarting the risk of consumer confusion, but found no rational basis for the contiguity requirement. According to the court, the use of an asterisk with the disclaimer information located elsewhere on the product packaging would suffice. The court was not persuaded that the rule violated Commerce Clause precepts, finding any burdens or benefits placed equally on in-state and out-of-state producers.  

Because the record was insufficiently developed on whether the rule appropriately banned composition claims related to antibiotics and pesticides, the court remanded that part of the case to the district court for additional proceedings. The court noted that the state failed to present any evidence on the testing procedures used to detect antibiotics and pesticides. “If the State’s testing can detect these substances and prevent any amount of them from being present in conventional milk, then [the claims antibiotic- and pesticide-free] would be inherently misleading because they falsely imply that conventional milk contains antibiotics and pesticides when in fact the State tests to ensure that it does not.” The court thus concluded that the state failed to show it was entitled to summary judgment on this part of the producers’ challenge to the rule.