Judges strike, uphold aspects of dairy labeling regulations
By Greg Cima
Posted Nov. 18, 2010
In a mixed ruling on Ohio's dairy product labels, an appellate court determined that dairy producers should be allowed to separate claims regarding rBST use from disclaimers about FDA determinations, similar to this label on a milk carton purchased in Illinois. Information identifying the producer has been removed from this photo.
In striking down some Ohio rules on dairy product labeling, an appellate court cited arguments that cows treated with recombinant bovine somatotropin may produce lower-quality milk.
On Sept. 30, a three-judge panel of the U.S. Court of Appeals for the Sixth Circuit ruled that dairy producers who choose not to use recombinant bovine somatotropin in production can claim on their product labels that the products are "rBST free." In their decision, the judges upheld state rules requiring the producers to include a disclaimer indicating that the Food and Drug Administration has found no substantial differences between milk produced by cows treated with rBST and those not treated. However, they overturned a rule barring producers from separating the rBST-free claim from the disclaimer on the packaging. The judges also upheld rules about the disclaimer font size, color, case, and style.
The International Dairy Foods Association and Organic Trade Association had initially filed separate suits that challenged some of Ohio's restrictions on claims and disclaimer requirements as unconstitutional restrictions on their speech. The cases were consolidated by a district court, and the appellate court heard the appeal on the joint case after a district court judgment in favor of the state.
In May 2008, the Ohio Department of Agriculture had implemented rules prohibiting some content-related statements, such as "rBST free," from being used on milk product labels. Department officials were concerned that such statements could mislead consumers, because in their opinion such statements falsely implied a compositional difference. However, producers were allowed to note on their labels whether their products were produced by cows not supplemented with rBST, provided that they also added a disclaimer that the FDA had not found a compositional difference between milk produced by cows treated with rBST and those not treated.
Allies disagree on rBST effects
In examining the validity of the department's rules, the appellate court judges considered an amicus brief jointly filed by seven nonprofit organizations: the Center for Environmental Health, Center for Food Safety, Food and Water Watch, Institute for Responsible Technology, Ohio Ecological Food and Farm Association, Oregon Chapter of Physicians for Social Responsibility, and Organic Consumers Association. The Center for Food Safety is not connected with the FDA's Center for Food Safety and Applied Nutrition.
The judges took into account the brief's claims that rBST could lead to production of milk with increased hormone concentrations, increased fat and decreased protein contents, and higher somatic cell counts. And the court noted that milk producers who use rBST in production cannot detect the synthetic hormone through current testing methods and prove the substance is absent from their cows' milk. The substance is identical to naturally occurring BST on a molecular level.
The judges' opinion contradicts determinations by the FDA. In February 1994, FDA officials published an rBST and product labeling guidance document that indicates all milk contains the hormone BST, and use of the term "rBST free" could falsely imply a compositional difference between milk from treated and untreated cows. They determined that, by asserting that rBST was not used during production and failing to provide further explanation, producers can falsely imply milk from untreated cows is safer or of higher quality.
The court opinion also contradicts public statements by the International Dairy Foods Association. Peggy Armstrong, a spokeswoman for the IDFA, said that, because the case is still in litigation, she could not comment on the court's opinion. But she said the IDFA has always followed the FDA guidance indicating there is no significant difference between milk from cows treated with rBST and milk from cows not treated with rBST.
The IDFA's website also states that scientific examination has shown no significant difference in hormone concentrations in organic versus conventionally produced milk.
Yet the IDFA has praised the court's ruling as a victory for producers and consumers, the latter of whom have expressed increased interest in dairy products made from cows that have not been treated with hormones such as rBST.
"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," Clay Hough, the IDFA senior group vice president, said in a press release.
Information from the OTA states that "the verdict is still out" on human health risks associated with rBST but lists concerns similar to those in the amicus brief. It also states that rBST use is associated with mastitis, reduced pregnancy rates, and lameness in cows.
Laura Batcha, a spokeswoman for the OTA, also praised the court ruling, which she said "upholds consumers' rights to receive truthful information about organic production practices on the labels of their milk and other dairy products" as well as preserves rights of organic farmers and processors to provide truthful information.
"Without this positive ruling for the organic sector, OTA member producers would have had to change their labels," Batcha said.
Ohio Department of Agriculture officials released a statement that they were pleased that the court upheld some aspects of the rule, "including the requirement that labels stating that milk has been produced without the use of rBST be accompanied by a disclaimer to prevent misleading Ohio consumers." Spokeswoman Megumi Robinson said in late October that the department had decided not to pursue a rehearing from the appellate court, but either side could appeal the ruling to the U.S. Supreme Court within 90 days of the judgment.
"At this time, the department cannot comment further as to whether it may seek to pursue such an appeal," she said.
Some matters will return to the district court for further proceedings, where the court will deal with evidence regarding the need for disclaimer language on small dairy containers and state rules against some antimicrobial- and pesticide-related composition claims, Robinson said.