A Florida federal court has denied the state’s motion to dismiss a First Amendment lawsuit challenging regulations that require products labeled as “skim milk” to contain the same amount of vitamin A as whole milk. Ocheesee Creamery, LLC v. Putnam, No. 14-621 (U.S. Dist. Ct., N.D. Fla., Tallahassee Div., order entered February 7, 2015). Because the process of skimming cream from milk removes much of the vitamin A content, the regulation requires skim milk to contain added vitamin A to bear the “skim milk” label; otherwise, it must be labeled as “imitation milk product.”
Ocheesee Creamery’s November 2014 complaint claimed that by refusing to allow the company to sell its pasteurized skim milk with a “skim milk” label unless it added vitamin A—which the creamery views as tainting its “all-natural” products—Florida is censoring its use of the phrase “skim milk.” In its motion to dismiss, the state argued that the creamery had no standing and failed to join an essential party; because the Florida restriction echoes a similar federal law, the state asserted, the Department of Health and Human Services should have been a party to the suit.
The court disagreed on both arguments, finding that the federal restriction applies only to milk in interstate commerce, but the creamery sells its products only within Florida; thus, only Florida law applies. “While the constitutionality of the Florida laws and similar federal laws likely reduces to the same question, here the Creamery seeks relief only from Florida labeling laws,” the court concluded. “The Department of Health and Human Services is not an indispensable party.”