Milk does a body good, but will so-called imitation skim milk really stand up in court? That’s the question before a judge in federal court following a lawsuit by the Institute for Justice on behalf of South Mountain Creamery.
The lawsuit stems from a complaint by the creamery to sell its all-natural skim milk across state lines without the required federal label that states that it is “imitation skim milk,” rather than the natural skim milk product it is actually selling.
The Maryland-based creamery uses a natural pasteurizing process to skim the fat off of the milk to make it skim milk. While this removes vitamins A and D that are traditionally found in whole milk, the creamery believes their all-natural product is just as healthy.
The FDA requires skim milk sold nationwide to add both vitamin A and D, which is removed during the pasteurizing process, back into the product to hold the skim milk label. All other skim milk products without the synthetic vitamins are to be labeled as “imitation” dairy products.
“The federal regulations are absurd,” Justin Pearson, managing attorney for the Institute of Justice and lead attorney on the case, told Watchdog.og. “The government doesn’t have the power to change the dictionary. The creamery’s customers know what skim milk means, but the government is creating confusion where none existed.”
Because South Mountain Creamery does not use the additive vitamins in its pasteurizing process, it is by law unable to call its product skim milk and can only sell it with the label “imitation skim milk” on the bottles.
Creamery owner Randy Sowers told Watchdog.org this causes confusion for its consumers.
“I don’t think consumers know what to think because you can call almond milk 'milk' and use the name 'milk.' That’s misleading to consumers," Sowers said. “That’s why we’re doing this. Consumers have a right to know.”
As expands its operations, it is looking to other states to sell its all-natural dairy products, including Pennsylvania. While the state does allow for the natural skim milk to be sold without the “imitation skim milk” label, South Mountain Creamery is being held to the federal law that requires the description because it sells into multiple states beyond just Pennsylvania.
The Institute for Justice filed the lawsuit on behalf of Sowers and South Maintain Creamery, citing that it is a violation of the creamery’s and farmers' First Amendment rights to tell the truth to consumers.
“Words mean what the public understands them to mean,” Pearson said. “Words don’t mean what the government wishes they meant.”
“If anything, the word 'imitation' is extremely misleading,” he said. “Not only is the government banning South Mountain Creamery from telling the truth, but they’re forcing the creamery to use a label that is misleading customers.”
According to Sowers, adding the vitamin A and D to the skim milk may not be as beneficial as the FDA thinks it is. While adding vitamin A and D into skim milk replaces the nutrients lost during the pasteurizing process and keeps the milk on par with whole milk’s nutritional value, it may cause other health issues.
“Over the last 17 years, people have been finding out they are lactose intolerant,” Sowers said. “But, a lot of people drink our milk products and don’t have a problem. Are they actually allergic to the milk or are they allergic to the vitamin A and D or whatever carrier they’re using to put in the milk?"
Sowers thinks the former and continues to fight to sell his all-natural skim milk to consumers as an alternative to the vitamin A and D enriched skim milk that floods shelves.
The National Milk Federation sees the value of adding these vitamins to skim on a consistent basis.
“We support the enforcement of existing standards of identity for dairy foods, and labeling regulations that promote consistent nutritional content, including vitamin levels,” Chris Galen, senior vice president of communications at the National Milk Federation, told Watchdog.org. “We don’t want to see those standards watered down.”
This is not Sowers first fight with the federal government as he came under their scrutiny in 2012 for structuring concerns. The farmer that is paid in cash in for several transactions had $60,000 seized by the Internal Revenue Service for what it sensed was illegal business activities.
While Sowers has had a portion of the money returned, he continues to battle the government to see the full amount restored to his bank account.
The new skim milk fight for Sowers and South Mountain Creamery is one that will affect farmers all over the country. With the help of Institute for Justice, Sowers hopes the “imitation” requirements will be changed.
“This could have a huge impact on farmers nationwide because we are actually suing the FDA,” Pearson said. “We think we have a very strong argument. Consumers know what skim milk means. They have no idea what imitation skim milk means.”