First Amendment: Skim Milk Labeling Leads Maryland Dairy to Sue FDA

A Maryland dairy farm with its own milk bottling business is suing the U.S. Food and Drug Administration over the labeling of skim milk and if it violates the First Amendment. ( Institute for Justice )

A Maryland dairy farm with its own milk bottling business is suing the U.S. Food and Drug Administration over the labeling of skim milk and if it violates the First Amendment.

A lawsuit was filed by the non-profit group the Institute for Justice with Randy and Karen Sowers, owners of South Mountain Creamery near Frederick, Maryland, on April 5 against the FDA.

At issue is South Mountain Creamery’s labeling of skim milk. The dairy milks 550 cows and bottles milk on-farm selling to about 5,000 customers. South Mountain Creamery is attempting to sell pasteurized, all-natural skim milk in Pennsylvania. However, the FDA wants the milk to be labeled as “imitation skim milk” or “imitation milk product” because it does not contain added vitamins.

The Sowers and Institute for Justice believe this is a government overreach and violation of the First Amendment.

“The government does not have the power to change the meaning of words or ignore common sense,” says Justin Pearson, a senior attorney with the Institute for Justice, which represents South Mountain Creamery in court. “The FDA is creating confusion where there was none whatsoever. People know what skim milk means, but they have no idea what ‘imitation milk product’ means. Pure, all-natural skim milk is not an ‘imitation’ of anything.”

Officials from the Pennsylvania Department of Agriculture agreed with the Sowers’ definition of skim milk. Unfortunately, because the milk is crossing state lines it must follow FDA regulations and would need to be labeled as an “imitation” to be sold legally.

“I just want to sell the purest, most natural skim milk possible without being forced to confuse my customers,” Randy Sowers says. “I’ve already fought the federal government before, when the IRS stole my money using civil forfeiture. Now I’m ready to fight back against the federal government again for my right to honestly market my milk.”

Sowers had $60,000 seized by the Internal Revenue Service (IRS) in February 2012 for a violation of structuring laws. The money was eventually returned to Sowers after another court case that the Institute for Justice participated in.

This is also the second “imitation skim milk” case the Institute for Justice has offered legal counsel for a dairy farm in the past few years. Last year, Florida dairy farmer Mary Lou Wesselhoeft, owner of Ocheesee Creamery, won her lawsuit against the Florida Department of Agriculture and Consumer Services when the state would not allow her to label an all-natural skim milk as “skim milk.”

Wesselhoeft was awarded $437,000 to cover the legal fees for her attorneys and can now legally market her all-natural, pasteurized skim milk in the state again.

The Institute for Justice believes the recent win in Florida and other free speech challenges made against the FDA should place a precedent for what should result in a win for South Mountain Creamery and the Sowers family.

“The federal government should be in the business of protecting public health and safety, not forcing hardworking entrepreneurs to lie about their products,” says Institute for Justice attorney Anya Bidwell. “Pasteurized, all-natural skim is safe to drink and legal to sell. It’s time for the FDA to stop fighting common sense and allow farmers to market pure skim milk honestly to their customers.”

A video of the lawsuit being announced by the Institute for Justice and the Sowers can be watched below:


IJ announces a new federal lawsuit against the FDA.

Posted by Institute for Justice on Thursday, April 5, 2018

A second explainer video was shared by the Institute for Justice on Facebook:

FDA: Milk is not Milk

The gov't doesn't have the power to change the dictionary, but that's precisely what the FDA is attempting to do to keep American farms from selling wholesome, all-American skim milk.

Posted by Institute for Justice on Saturday, April 7, 2018