May 14, 2017 by Chris

Florida Creamery Wins First Amendment Challenge in the 11th Circuit

The Eleventh Circuit, with D.C. Circuit Senior Judge Sentelle sitting by designation, ruled in favor of Ocheesee Creamery against Florida regulators on First Amendment grounds. The case centered on Florida’s refusal to allow the Creamery to call their all-natural product “skim milk.”

Florida regulators initially demanded that the Creamery’s all-natural skim milk left over from cream production must use the label “imitation milk product” or “Non-Grade ‘A’ Milk Product, Natural Milk Vitamins Removed” so long as the Creamery refused to add vitamin A. The Creamery, in turn, “insisted that the State’s proposed label was misleading because the product was in fact skim milk,” and submitted multiple labels using the “skim milk” designation. Florida responded with the a counter-proposal substituting “milk product” for “skim milk,” which the Creamery rejected before filing suit in the U.S. District Court for the Northern District of Florida.

Invoking the three prong test for commercial speech under the First Amendment, and a healthy dose of common sense, the Eleventh Circuit held that the Creamery’s “skim milk” label deserves intermediate scrutiny under the Central Hudson test and the government failed to demonstrate that their remedy was “not more extensive than is necessary to serve [its] interest.” The Court concluded:

Nevertheless, the State was unable to show that forbidding the Creamery from using the term “skim milk” was reasonable, and not more extensive than necessary to serve its interest. It “disregard[s] far less restrictive and more precise means”—for example, allowing skim milk to be called what it is and merely requiring a disclosure that it lacks vitamin A. Fox, 492 U.S. at 479, 109 S. Ct. at 3034 (quotation omitted). The State’s mandate was clearly more extensive than necessary to serve its interest in preventing deception and ensuring adequate nutritional standards.

Chalk one up for the First Amendment.

Update: The National Law Review has a great summary of the case here.