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Ban on Milk Labeling Ruled Unconstitutional

By Dan Flynn and Suzanna Schreck

After more than two years of litigation, a federal court last week struck down an Ohio ban on labeling dairy products as "rbGH free," "rbST free," or "artificial hormone free" if produced by cows not treated with bovine growth hormone.  

In what could prove to be a landmark case, the Sixth U.S. Circuit Court of  Appeals court ruled that Ohio's absolute ban on hormone-free claims violated dairy processors' First Amendment rights and was "more extensive than necessary to serve the state's interest in preventing consumer deception."
Perhaps more notable, the court also ruled that rbST-treated milk is compositionally different, disagreeing with both the lower court's ruling and the U.S. Food and Drug Administration's finding that there is no significant difference between milk produced by cows treated with rbST and by those without.

As NPR reported Friday, the court cites three reasons milk produced by rbST-treated cows is different: Increased levels of the hormone IGF-1, a period of milk with lower nutritional quality during each lactation, and increased somatic cell counts (i.e. more pus in the milk).  The court further noted that higher somatic cell counts indicate milk is poor quality and will turn sour more quickly.
 
"This evidence precludes us from agreeing with the district court's conclusion that there is no compositional difference between the two types of milk," reads the opinion.

When it approved rbST, FDA ruled that milk from cows given the synthetic hormone is not significantly different than milk from cows not treated with the hormone and is safe for consumption.  The agency did not require labeling for products produced with rbST, which can increase milk production by as much as 10 percent.  In the years following approval, however, voluntary labeling for dairies opting out of using the hormone has gone mainstream.

In 2008, the Ohio Department of Agriculture instituted a state-wide ban on using any hormone-free claims on dairy products.  The International Dairy Foods Association (IDFA) filed suit in June of 2008 and the Organic Trade Association joined the case when IDFA filed its appeal.

"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 statement last week.

Consumers Union, a leading consumer advocacy organization that publishes Consumer Reports, called the decision "a big win for consumers."

"The U.S. is in the minority among industrialized nations to allow the use of artificial growth hormones to stimulate milk production in dairy herds," noted Consumers Union in a statement. "The practice is prohibited in Canada, Japan, Australia, New Zealand, and in the 27 countries of the European Union."

Food and Water Watch, the Ohio Ecological Food and Farming Association and the Ohio Environmental Council all praised the decision, noting that much of the milk produced in Ohio is sold across state lines.  "[T]his ruling is a victory for consumers in Ohio and throughout the U.S."

According to IDFA, it is unclear what steps the state of Ohio might take next: "State officials may appeal to the full Sixth Circuit for an En Banc, or all-judge, review or to the U.S. Supreme Court. Without an appeal, the case would return to the District Court for further proceedings consistent with the Appeals Court's decision. IDFA believes that settlement discussions between IDFA, OTA and state officials are also an option."  

Full post as published by Food Safety News on October 04, 2010 (boomark / email).