'Milking' The 1st Amendment To Defend Food Label Claims

By Andre Timothy Hanson and Saul Howard Perloff, Norton Rose Fulbright US LLP (April 26, 2017, 5:22 PM EDT) -- In a case with potentially significant ramifications for food and drug labeling and advertising, the Eleventh Circuit held that the First Amendment precluded the Florida Department of Agriculture from prohibiting a dairy company's use of the phrase "skim milk" to describe its milk product. Ocheesee Creamery LLC v. Putnam, 851 F.3d 1228 (11th Cir. March 20, 2017).

The Ocheesee Creamery is a Florida dairy that sells all-natural dairy products, including milk from which all cream has been skimmed. Removing the cream, however, also removes all of the vitamin A (a fat-soluble vitamin). Under Florida law, milk cannot be sold as "milk"...

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