The First Amendment Rises to the Top: State Cannot Prohibit Dairy from Describing its Skim Milk as “Skim Milk.”

The Creamery is a dairy farm in rural Florida which sells all-natural dairy items, including skim milk produced in the usual way: cream rises and is skimmed off, and the result is skim milk.  The Creamery does not replace the (fat soluble) Vitamin A lost in skimming.  But Florida law prohibits the sale of milk which is not “Grade A”—which requires, among other things, that Vitamin A depleted by the skimming process be replaced.  Accordingly, Florida told the Creamery it had to either stop selling its non-Grade A skim milk or obtain an imitation milk permit.  The Creamery didn’t want to call its product “imitation milk,” so it suggested that the product be labeled as “skim milk” with additional language indicating that the skimmed Vitamin A had not been replaced.  Florida insisted that the phrase “skim milk” not be used, on the theory that the phrase was misleading because the product at issue did not have the same vitamin content as whole milk.  Ultimately the Creamery sued the state, alleging that Florida’s prohibiting the Creamery from truthfully describing its product as “skim milk” violated the First Amendment.  The district court granted Florida’s motion for summary judgment, but the Eleventh Circuit disagreed and vacated the judgment. Ocheesee Creamery LLC v. Putnam, 2017 WL 1046104 (11th Cir. Mar. 20, 2017).

Judge Black, joined by Judge Rosenbaum and by Judge David Bryan Sentelle, visiting from the Court of Appeals for the D.C. Circuit, noted that since the Supreme Court’s decision in Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748 (1976), some commercial speech has been entitled to First Amendment protection under the “intermediate scrutiny” standard.  Challenges to restrictions on commercial speech are evaluated under the framework set forth in Central Hudson Gas & Electric Corp. v. Public Service Commission, 447 U.S. 557 (1980).  The threshold question is whether the commercial speech at issue is entitled to First Amendment protection at all—if the speech concerns unlawful activity or is false or inherently misleading, the answer is no.  If commercial speech is entitled to protection, a reviewing court considers “whether the asserted governmental interest is substantial” and “whether the regulation directly advances the governmental interest asserted, and whether it is not more extensive than is necessary to serve that interest.”  At all points, the burden is on the government to show that the evidence supports its restriction of speech.

As to the threshold question, the Eleventh Circuit found that the commercial speech at issue was entitled to First Amendment protection. The product was not illegal—Florida was willing for it to be sold as “imitation milk”—and it was not inherently misleading to call milk which had been skimmed “skim milk.”  The court rejected Florida’s argument that it was necessarily misleading to call something “skim milk” if it did not meet a state’s definition of “skim milk” (which according to Florida had to include replenished Vitamin A):  “Calling the Creamery’s product ‘skim milk’ is merely a statement of objective fact.”

Turning to the rest of the Central Hudson analysis, the parties agreed that Florida has a substantial interest in combating deception and in establishing nutritional standards for milk, and the Eleventh Circuit assumed (without deciding) that was true.  Even so, the state’s refusal to allow the Creamery to call its product “skim milk” was “clearly more extensive than necessary to achieve [the state’s] goals”:  “The record makes clear that numerous less burdensome alternatives existed and were discussed by the State and the Creamery during negotiations that would have involved additional disclosure without banning the term ‘skim milk.’”  Though the state was not required to employ the least restrictive means available to meet its legitimate objective, the state’s refusal to allow the Creamery’s product to be described as “skim milk” “was clearly more extensive than necessary to serve its interest in preventing deception and ensuring adequate nutritional standards.”

Posted by Valerie Sanders.

 

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