Legal Commentary

Sixth Circuit Holds Ohio Can?t Prohibit ?rbST-Free? Labels

By Jonathan H. Adler

Last month, in International Dairy Foods Association v. Boggs, the U.S. Court of Appeals for the Sixth Circuit struck down Ohio?s regulations barring dairy processors from labeling milk as ?rbST-Free,? but upheld the agency?s ability to require disclaimers for some rbST-related product claims, subject to First Amendment constraints.   In the process the decision illustrated how environmental preferences, such as for ?organic? food, benefit from constitutional protection of commercial speech, including product labels.

Some milk producers administer recombinant bovine somatotropin (rbST, aka recombinant bovine growth hormone or rbGH) to their dairy cows to increase milk production.  Although there is (as yet) no scientific evidence that the use of rbST poses any health risk to humans, or even that rbST can be detected in milk from treated cows, some consumers prefer to purchase milk from untreated cows.  In response to this concern, some producers (including members of the Organic Trade Association) sought to label their milk products as ?rbST-free? or to otherwise indicate that their milk did not come from rbST-treated cows.

The Ohio Department of Agriculture, pursuant to an Executive Order by Governor Ted Strickland, adopted rules governing the such voluntary labeling of milk products.  Specifically, these rules barred the use of  ?rbST Free? or equivalent composition claims on milk labels.  In addition, the rules required that any production claims about milk, such as ?this milk is from cows not treated with rbST,? be accompanied with a prominent disclaimer noting that the FDA has determined that there is no significant difference between  milk from cows administered rbST and those that have not.  The rules were influenced by, and largely followed, a 1994 FDA guidance on milk labeling.

ODA defended its rules as reasonable measures to prevent false and misleading product claims about milk.  The Sixth Circuit disagreed.  Subjecting the rules to First Amendment scrutiny, albeit under the lesser protection afforded  commercial speech, the court concluded that ban on rbST-related composition claims was more extensive than necessary to serve the state?s interest in preventing false or misleading speech.  The court found there is  a sufficient difference in milk from rbST-treated and non-treated cows to reject ODA?s claim that an ?rbST free? label is inherently misleading, and held that any potential consumer confusion could be alleviated by accompanying the claim with anappropriate disclaimer.  The court also concluded that the mandatory disclaimer for production claims was reasonably related to the state?s interest in preventing false or misleading claims, but that some of the specific requirements (such as that the disclaimer appear in the same label panel) were more extensive than necessary.

The Sixth Circuit?s decision is entirely consistent with International Dairy Foods Association v. Amestoy, a 1996 Second Circuit opinion striking down Vermont?s mandatory labeling requirements for milk from cows that have been administered rbST.  Both cases affirm that product labels, while commercial speech, still receive First Amendment protection.  Consumers may or may nor prefer milk from cows that were administered rbST, and producers should be free to use their labels to identify their products as potentially desirable to consumers with particular preferences, but should not be forced to do so.  The government?s role is to ensure that whatever information is disclosed is truthful and not misleading, not to mandate disclosure of product characteristics important to some consumers but not others.

This decision also illustrates a point I made in my post about labeling genetically modified salmon (and in this paper on labeling nanotech products).  Just because a government agency does not mandate disclosure of a particular fact ? such as whether milk came from rbST-treated cows or a fish filet came from an AquaBounty salmon ? does not mean the information will not be disclosed.  In a competitive market, producers have every incentive to differentiate their products in accord with consumer preferences.  And insofar as some consumers prefer a particular type of milk or salmon, producers of products with the relevant characteristics will inform consumers of these facts.  So long as the failure to disclose a product characteristic will not cause harm to the uninformed consumer, the government should stay its hand.

Full post as published by The Volokh Conspiracy on October 12, 2010 (boomark / email).