Dairy Farmer Sues FDA for the Right to Label His Skim Milk as "Skim Milk"

Maryland dairy farmers Randy and Karen Sowers are, with the help of the Institute for Justice (a non-profit libertarian-leaning law firm), suing the Food and Drug Administration for essentially doubling down on a very silly law.

The gist: South Mountain Creamery, the dairy producer owned by the Sowerses, want to sell milk without the addition of any synthetic chemicals. To do this, they would be forced to label their milk as “imitation” milk, which they view as both incorrect and unfair.

At the center of this debate is skim milk, which is milk from which all but trace amounts of milkfat have been removed. Skim milk is usually created by spinning milk in a centrifuge, which separates the milkfat from the liquid. But that milkfat also contains some valuable vitamins, most importantly vitamins A and D, and removing so much of it means that skim milk naturally contains very small amounts of those vitamins. This is not true of, say, one and two percent milk – those milks still contain some of that valuable milkfat.

The FDA’s goal with these regulations is to ensure that skim milk has the same nutrients as its fuller-fat counterparts. To encourage that, the organization mandates that any milk labeled “skim milk” must have those vitamins added back.

Where this gets weird is that South Mountain Creamery, which wishes to sell milk that has had it’s fat skimmed out but hasn’t had those vitamins added back in – an objectively less messed-with product, albeit less healthful one – cannot label its milk as “skim milk.” Instead, to convey that it does not have the same nutritional profile as other milks, the FDA requires that it have some additional label, something like “imitation skim milk product.”

“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,” said Justin Pearson, a lawyer with the Institute of Justice, in a press release. The Sowers family and the Institute of Justice are suing the FDA on free speech grounds, stating that the government attempting to change the definitions of common words and restrict their use.

What’s interesting here is that the FDA’s commitment to promoting ostensibly more nutritious milk is totally reasonable. But in that effort, should the FDA be allowed to force rigid, maybe even nonsensical definitions on farmers? And is there even a way to ensure that the consumer understands that most skim milk has a certain nutritional makeup, while milk like South Mountain Creamery’s may not?

It’s worth noting that this is not the first time this particular argument has been brought to court. The Institute for Justice was behind another, very similar lawsuit, one that was conducted in Florida back in 2016. That suit was successful, with the judge ruling that the government could not be permitted to force a dairy to lie – and that saying this type of no-nutrient-added skim milk is “imitation” is a lie.

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