There’s a battle growing in Florida, and milk — skim milk to be specific — is in the crosshairs of the state’s government.
It seems Ocheesee Creamery’s skim milk isn’t skim milk, at least according to the Florida Department of Agriculture and Consumer Services (FDACS). Ocheesee is so named after a local landmark, and their customers want local, natural products.
Due to old U.S. Food and Drug Administration (FDA) rules within the Pastuerized Milk Ordinance (PMO), skim milk needs to include added vitamin A to be called “skim milk.”
It’s a strange version of the government giveth (the right to skim your milk), and the government taketh away (the right to call your milk skim milk). That is, unless you add an artificial, but beneficial, supplement — Vitamin A.
The law made sense at one time; the government did not want U.S. citizens to go blind due to drinking low-fat dairy products, wherein the fat is skimmed off along with some of the Vitamin A.
But, according to Wesselhoeft’s lawyer, Justin Pearson, of the Institute for Justice, the case is result of a misguided Florida state law. Although the Vitamin A requirement is included in federal language, a small business exemption would allow states to not enforce the requirement at a plant of Ocheesee’s size. Florida does not have such an exemption.
A misleading label to correct a misleading law
For three years the creamery sold “Pasteurized Skim Milk” that was labeled as “Pasteurized Skim Milk.” You read that right, the creamery said they sold what they actually sold.
But after three years of no complaints or harm, the state of Florida decided she needed change the label on her pasteurized skim milk to:
- Stop calling it “Pastuerized Skim Milk” and instead
- Start calling it “Non-Grade A milk product, natural vitamins removed” and
- Additional restrictions on what she could talk about in terms of health information.
Pearson, reached by phone on Monday, deals with four types of cases; free speech, economic liberty, school choice, and property rights. He puts this in the category of free speech. Although he has dealt with many types of cases, this one is rare, as Pearson said he has “Never had the government force someone to mislead their own customers before.”
Ocheesee, understandably, wants to return to selling the milk with the original label. The third-generation Jersey farm, milking 130 cows, uses all their milk for a variety of bottled products. The farm is located in Florida's panhandle, west of Tallahassee.
Mary Lou, reached by phone on Monday, said she thinks that part of the issue is larger Florida dairy farmers see her as competition, and Ag Commissioner Adam Putnam heeds to their demands. Putnam is a former U.S. Congressman, was elected to Florida's House of Representatives at age 22 after graduating with an ag. degree from the University of Florida, and grew up as a fifth generation cattle rancher and citrus grower.
“He told me his hands were tied,” Wesselhoeft said. “But he’s a Commissioner elected by the people. We didn’t have a problem until he started in the Commissioner’s office.”
Wesselhoeft noted that her customers are buying the milk because it is all natural, and she did not want to add a synthetic version of anything to the product. There is no natural version of Vitamin A, and therefore Wesselhoeft chose not to add it back in. Worse, Wesselhoeft contends that adding Vitamin A is useless since it is fat-soluble and otherwise lives in a product with fat removed, so light deteriorates the fortified vitamins anyway.
“Check page 351 of the PMO. The FDA even admits that fortification in skim milk is useless after 24 hours if light gets into the container,” Wesselhoeft said.
I did check page 351 of the PMO [Click here for the 382 page PDF of the PMO], and found a few paragraphs under the subheading “Problems involved with fortification.” It explains that Vitamin A naturally ranges from 400 international units in winter to 1200 international units in the summer, and guides processors in how much to add back into the milk. Next, the PMO helps Wesselhoeft’s case — from a practical standpoint at least — against the state of Florida in a big way. This is from page 352:
“In fluid skim or low fat milk, added vitamin A deteriorates gradually during normal storage of the milk at 4.4°C (40°F) in the dark but is destroyed rapidly when the milk is exposed to sunlight in transparent glass bottles or translucent plastic containers. The photo destruction of added vitamin A is dependent on the intensity and wave-length of light and the milk source. The use of amber or brown glass bottles, pigmented plastic containers formulated with specific light barriers and colored paper cartons retard this destruction.“
Therefore, the glass bottles she is legally allowed to use do not protect the Vitamin A she would need to fortify and it breaks down quickly, losing any benefit. Of course, there is a cost to buy the Vitamin A, time to add it in, and storage for inventory.
Although the skim milk was just part of Ocheesee’s business, they lost two coffee house customers and also an offset for their cream and butter, the byproducts of skimming milk.
“We’ve lost a lot,” Wesselhoeft admitted.
But the real loser here is the Florida Department of Agriculture and Consumer Services, and the citizens of that great state, where skim milk has been made a scam.