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Court: Florida dairy's skim milk is skim milk, not imitation

By: BRENDAN FARRINGTON, Associated Press
March 20, 2017 Updated: March 20, 2017 at 6:01 pm
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TALLAHASSEE, Fla. (AP) — A small, all-natural diary isn't being deceptive when it calls it's skim milk "skim milk," a federal appeals court ruled Monday in a victory for the creamery that's fighting the state's demand to label the product "imitation" because vitamins aren't added to it.

The ruling overturns a decision last March when a federal judge sided with the Florida Department of Agriculture, which said the Ocheesee Creamery couldn't label it's skim milk "skim milk" because the state defines the product as skim milk with Vitamin A added. The state instead said if the creamery wanted to sell the product, it should label it as "imitation" skim milk.

But that didn't sit well with a dairy whose whole philosophy is to not add ingredients to natural products. So instead of complying, the creamery has dumped thousands of gallons of skim milk down the drain rather than label it as an imitation milk product.

"The State was unable to show that forbidding the Creamery from using the term 'skim milk' was reasonable," the three-judge, Jacksonville-based panel wrote in its ruling.

The court said the state disregarded far less restrictive and more precise ways of labeling the product, "for example, allowing skim milk to be called what it is and merely requiring a disclosure that it lacks vitamin A."

The Institute for Justice is representing Creamery owner Mary Lou Wesselhoeft in the lawsuit against the state.

"All Mary Lou wants to do is sell skim milk that contains literally one ingredient — pasteurized skim milk — and label it as pasteurized skim milk," said Institute for Justice lawyer Justin Pearson in a press release.

The creamery, located about 50 miles west of the state capital, has offered to add to its label that it doesn't add vitamins to the product, but the state hasn't accepted the compromise. It was selling between 100 and 300 gallons of skim milk a week for $5 a gallon before the dispute. The product made up about 25 percent of its profits.

The dictionary definition of skim milk is simply milk with the cream removed. But the Department of Agriculture says under state and federal law, skim milk can't be sold as skim milk unless vitamins in the milk fat are replaced so it has the same nutritional value as whole milk.

The department didn't immediately return phone calls and an email seeking comment.

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