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Small dairy farmer seeks First Amendment protection from state regulators

By   /   February 1, 2017  /   News  /   No Comments

Five years ago, the Florida Department of Agriculture turned its regulatory power on a small third-generation dairy farm in the Panhandle’s Calhoun County, population 14,462.

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FIRST AMENDMENT: Mary Lou Wesselhoeft, owner of the Ocheesee Creamery, was told by state regulators that she must inject additives into her all-natural skim milk or call it “imitation milk.”

The Ocheesee Creamery, as it’s known, was caught being a little too honest.

Mary Lou Wesselhoeft, owner, was selling all-natural pasteurized skim milk – whole milk with the cream skimmed off – and labeling it exactly what it was: skim milk.

But in a strange twist with First Amendment implications, the state said Wesselhoeft was misrepresenting her product. After a decade without complaints or confusion, newly enforced regulations required artificially injected additives — something Ocheese Creamery had never done and wasn’t about to start doing.

As a result, the department issued an ultimatum: either stop selling skim milk or label it “imitation milk.”

Wesselhoeft, whose website header includes the Bible verse, “The hills shall flow with milk, Joel 3:18,” opted to stop selling her locally popular item rather than comply with a condition she believes is dishonest.

But not without a fight.

In March 2016, the U.S. District Court for the Northern District of Florida ruled in favor of the Department of Agriculture.

The First Amendment’s protection of free speech extends to commercial speech, the court said, adding that while Wesselhoeft’s label is literally true, the department has the authority to establish a “standard of identity.”

On Jan. 24, the Institute for Justice, a public interest law firm, argued her case before the U.S. Court of Appeals for the Eleventh Circuit Court in Jacksonville. The firm has represented Wesselhoeft since 2014.

“The state has turned the dictionary on its head,” managing attorney Justin Pearson told Watchdog.org.

“The state admits that Ocheesee Creamery skim milk consists entirely of pure all-natural skim milk. But because it doesn’t add any other ingredients, the state has ordered the dairy not call it what it is. That violates the First Amendment,” Pearson said.

According to the department, skim milk can only legally bear the name “skim milk” in Florida if it contains the same amount of vitamin A as whole milk. If it doesn’t, vitamin A must be artificially added.

That puts Wesselhoeft in a bind.

Ocheesee Creamery’s milk is separated so the cream rises to the top. But because vitamin A is fat soluble, it’s largely removed when the cream is skimmed.

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OCHEESEE CREAMERY: The Calhoun County dairy farm west of Tallahassee produces all-natural milk items from grass-fed cows.

“The thing that’s different about our creamery is that it’s pasteurized, not homogenized, and our milk goes in glass bottles and is all-natural,” Wesselhoeft said in a video produced by the Institute for Justice.

Commercial milk is typically homogenized – a mechanical process that breaks down fat globules from the cream and suspends them, along with vitamin A, throughout the milk.

The dairy’s all-natural products are produced from grazing grass-fed cows. Many of its customers frequent the small business precisely because its products don’t contain additives.

“Many older people enjoy our items because it reminds them of their growing-up days when milk in glass bottles was the norm,” the dairy’s website says.

The three-employee farm also includes a storefront where guests can watch how the family operation bottles its milk.

According to the lawsuit, department regulators routinely tested and approved the farm’s skim milk prior to October 2012, when the state issued a stop-sale order and demanded that Wesselhoeft refrain from listing any nutrient or health claims on its labels.

But not because it’s unsafe.

The state doesn’t dispute that the creamery’s skim milk is safe to drink without the full amount of vitamin A, explained Pearson. The state also agrees that the creamery’s skim milk is legal to sell without any additives, he said. It just won’t allow them to call it “skim milk.”

Institute for Justice

TRADITION: The small third-generation farm has three employees, and includes a storefront where guests can watch how milk is bottled.

In 2013, Wesselhoeft proposed alternative labels, including “Pasteurized Skim Milk: No Vitamin A Added,” “Pasteurized Skim Milk: No Lost Vitamin A Replaced,” and “Pasteurized Skim Milk: Most Vitamin A Removed by Skimming Cream from Milk.”

The suggestions were denied.

“If we would have ignored the Department of Agriculture, they could’ve come and pulled our permit and shut us down completely, and we could not have sold any of our products anywhere,” Wesselhoeft said.

According to the lawsuit, in addition to canceling permits and issuing fines, “selling pasteurized skim milk without complying with Florida’s labeling laws could result in incarceration for the Creamery’s owners.”

The farm has managed to continue operating, but not without losing money. It sells dairy items containing cream, but since the left-over skim milk cannot be sold, it’s discarded.

“Every day we can’t sell it, it hurts our livelihood and we lose customers. We cannot continue on. It hurts us in a big way,” Wesselhoeft said. 

The Agriculture Department refuses to back-off its labeling prohibition despite the lack of public safety concerns. Court documents show the state’s interest is in “establishing a standard of identity and nutritional standards for milk” for the purpose of interstate commerce.

Ocheesee Creamery sells its products exclusively within the state of Florida.

Pearson said that amicus briefs were filed by large farm organizations, including the International Dairy Foods Association, on behalf of the state government’s position.

“It’s clear that giant international dairy farmers don’t like the idea that small, authentic creameries could offer alternative choices. I don’t think that’s a coincidence,” he told Watchdog.org.

The Eleventh Circuit is expected to decide the case before summer. The lawsuit doesn’t seek monetary damages, only the ability to call the product skim milk.

“We think the judges understood what we were saying,” Pearson said.

For Wesselhoeft, the challenge is a simple matter of right and wrong. “We should win this case because we want to tell the truth,” she said. “Someone has to stand up.”

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William Patrick is Watchdog.org’s Florida reporter. His work has been featured by Fox News, the Drudge Report, and Townhall.com, as well as other national news and opinion websites. He’s also been cited and reposted by numerous state news organizations, including Florida Trend, Sunshine State News and the Miami Herald, and is a member of Investigative Reporters and Editors and the Florida Press Association. William’s work has impacted discussions on education, privacy, criminal justice reform, and government and corporate accountability. Prior to joining Watchdog, William worked for the James Madison Institute in Tallahassee, Fla. There, he launched a legislative news website covering state economic issues. After leaving New York City in 2010, William worked for the Florida Attorney General’s Office where he assisted state attorneys general in prosecuting Medicaid Fraud. William graduated magna cum laude from Hunter College, City University of New York. He lives in Tallahassee with his wife and three young children.