Florida Loses Years-Long Battle to Relabel Skim Milk ‘Imitation Milk’

A fight over supplementation of vitamin A makes it to the federal court of appeals.

Those who don’t consider fat-free milk to be “real” milk may sympathize with Florida: The Sunshine State just lost $437,000 in a battle to rename a dairy’s skim milk “imitation milk.”

Back in 2011, the state Department of Agriculture claimed a small, family-run creamery was being deceptive when it labeled its skim milk “skim milk.” Not because it didn’t contain milk, but because it refused to add vitamin A.

Under state and federal law, the Department of Agriculture argued, skim milk must contain the same nutritional value as whole milk in order to be labeled “milk.” Because vitamin A is contained in milk fat, skim milk—whose milk fat has been removed—needs vitamin A to be added back in.

Most large commercial dairies add vitamin A just before packaging. A note on the Organic Valley co-op’s website reads: “We are required by law to add vitamin A to all of our skim/fat free/nonfat milk, lowfat milk and reduced-fat milk. This is because vitamin A is ‘fat soluble,’ so you lose vitamin A content when you reduce fat in fluid milk.”

However, the dairy in the Florida case, Ocheesee Creamery, 50 miles west of Tallahassee, Fla., refused to supplement its skim milk, claiming it didn’t want to add ingredients to a natural product. (“We’re stepping back in time,” reads its website.) Instead of complying with the state Department of Agriculture’s labeling request, it poured thousands of gallons of skim milk down the drain.

In November 2014, Ocheesee owner Mary Lou Wesselhoeft, represented by the nonprofit Institute for Justice, filed a free-speech lawsuit against Florida’s Department of Agriculture and Agriculture Commissioner Adam Putnam, claiming her creamery was censored in not being able to call its milk “skim.”

“All Mary Lou wants to do is sell skim milk that contains literally one ingredient — pasteurized skim milk — and label it as pasteurized skim milk,” Institute for Justice lawyer Justin Pearson said in a release.

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