U.S. Eleventh Circuit - The FindLaw 11th Circuit Court of Appeals Opinion Summaries Blog

State Violated Dairy's Free Speech Right to Advertise 'Skim Milk'

Mooooove over, Florida oranges. All-natural skim milk is about to be a little more famous in the Sunshine State.

A federal appeals court has ruled that a Florida dairy producer has a free speech right to advertise its natural "skim milk," even though the state prohibited the description. The U.S. Eleventh Circuit Court of Appeals said the advertisement was truthful and entitled to First Amendment protection.

"The State was unable to show that forbidding the OCheesee Creamery from using the term 'skim milk' was reasonable," the court said.

Not a Milk Product

The creamery, which sells all-natural dairy items, produces a natural skim milk that loses Vitamin A in the process of skimming off the fat. The state prohibits the sale of milk without the vitamin, and told the company to replace the vitamin or label its milk a "milk product."

But the dairy declined, and sued on free speech grounds. A trial judge granted a summary judgment for the state, saying that it was misleading to call the milk product "skim milk" because it lacked the required vitamin.

However, the appeals court said the dairy's description was not misleading. It was a truthful use of the term "skim milk,' and the state's actions violated the company's commerical speech.

"The Creamery prides itself on selling only all-natural, additive-free products, and therefore refuses to replace the lost vitamin A in its skim milk," the court said. "Its product contains no ingredients other than skim milk."

Mary Lou Takes the Cheese

Mary Lou Wesselhoe, owner of the OCheesee Creamery, had sold the skim milk and other cheese products for nearly three years when the state issued stop-sale orders. They said she had to replace the Vitamin A, or stop selling the milk. The Institute for Justice sued the state on her behalf.

"All Mary Lou wants to do is sell skim milk that contains literally one ingredient -- pasteurized skim milk -- and label it as pasteurized skim milk," lawyer Justin Pearson said in a press release. "This decision is a total vindication for OCheesee Creamery and a complete rejection of the Florida Department of Agriculture's suppression of speech."

After the Associated Press picked up the story, news of the ruling spread faster than Cheese Whiz.

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