11th Circuit: First Amendment Allows Non-Grade A Skim Milk to Be Labeled Skim Milk, Despite Florida Law

11th Circuit: First Amendment Allows Non-Grade A Skim Milk to Be Labeled Skim Milk, Despite Florida Law

The U.S. Court of Appeals for the Eleventh Circuit has held that the First Amendment allows a dairy to sell skim milk – labeled as such – without adding vitamin A as required by Florida law. Skimming cream from the top of milk – creating skim milk – removes almost all of the vitamin A because vitamin A is fat-soluble and therefore is removed with the cream. Florida law prohibits the sale of milk that is not “Grade A” – which requires an additive to restore vitamin A levels. A small creamery specializing in all-natural milk refused to add anything to its milk. Florida said that the creamery couldn’t sell non-Grade A milk; absent use of the additive, it either had to label its skim milk “imitation milk” or stop selling the milk. Reversing the district court, the Eleventh Circuit held that because the creamery’s milk was, indeed, skim milk, calling the product skim milk was not misleading. Although Florida could ban non-Grade A milk, the court added, it had not sought to do so, allowing such milk to be sold as “imitation milk.” Thus, the issue was not one of regulation of speech relating to unlawful conduct, but simply regulation of speech. [3/23/17]

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