[August]

The Savages!

Constitution be damned, the FDA is moving ahead to ban almond milk

by Justin Pearson

August 18, 2022 01:54 PM



Governing a country as large as the United States is hard. Sometimes, government officials make mistakes. But that is no excuse for doing something they know is wrong. The FDA knows it is unconstitutional to ban terms such as “coconut milk,” “almond milk,” and “oat milk.” But because large and powerful groups have asked for the ban, the FDA is planning to impose it anyway.

The FDA knows the ban would violate the First Amendment because of Mary Lou Wesselhoeft, a Florida dairy farmer who refused to inject anything artificial into her farm’s dairy products. She sold pasteurized whole milk and cream, along with the skim milk that was left over from skimming the cream.
The problem for Mary Lou was that Florida had copied an FDA requirement that skim milk without artificial vitamin additives could not be called "skim milk." Instead, because the product only consisted of pure skim milk, it was required to be called “imitation skim milk” or “imitation milk product.” Rather than mislabel her skim milk and comply with the government’s demand that she lie to her customers, Mary Lou literally poured her skim milk down the drain.
Mary Lou launched a First Amendment lawsuit challenging this ridiculous regulation in 2014. Florida argued that it could ban Mary Lou’s label because her pure skim milk had a different vitamin content than skim milk with artificial additives. A federal appellate court disagreed. In 2017, the court ruled in Mary Lou’s favor and explained that nutritional concerns could not justify a ban on speech. At best, the government could demand a content-neutral requirement for more information, with a nutritional fact panel being the best-known example. Mary Lou had always been willing to provide this additional information.

The FDA knows all about this ruling. In fact, when a subsequent lawsuit challenged the federal regulation that Florida had copied, the FDA’s director of food safety filed a sworn declaration in federal court explaining that because of the ruling in Mary Lou’s case, the FDA would no longer enforce this regulation. The FDA also posted a letter on its website telling states around the nation that they were no longer required to enforce the unconstitutional regulation either.
But then came the international dairy conglomerates. They are making the exact same argument that the federal appellate court rejected — that because of differences in nutritional content, the government can ban plain language that reasonable consumers generally understand.
Here, the banned terms are labels such as “coconut milk,” “almond milk,” and “cashew milk,” which the dairy cartel disingenuously says might confuse consumers. In fact, multiple courts have already explained that these types of bans are just as unconstitutional as the ban in Mary Lou’s case. The FDA undoubtedly knows about these court rulings too.
Yet despite knowing that the ban will violate the First Amendment, the FDA cannot bring itself to say no to the dairy industry’s powerful special interest groups. So, according to several reports, the FDA is moving ahead with its plans to ban these terms that people understand perfectly well.

Worse, this ban already technically exists, even if it has never been enforced. The FDA’s regulations already say that only cow’s milk can be called "milk." Indeed, even goat milk does not qualify as "milk." But because no reasonable consumer actually thinks that coconut milk comes from a cow, this regulation has never been enforced. Nonetheless, in the coming weeks, the Office of Management and Budget could give the green light to the FDA’s new draft guidance on enforcing this previously unused, ridiculous clause buried deep in the regulatory code.
Despite knowing these bans will be challenged in court and that the FDA will lose, regulatory officials seem bent on wasting millions of taxpayer dollars defending an unconstitutional law to satisfy corporate interests, rather than allow consumers simply to read the labels and make the choice that is right for them. When those powerful groups come calling, the FDA’s desire to do the right thing goes down the drain, just like Mary Lou’s pure skim milk once did.
Justin Pearson is a senior attorney at the nonprofit Institute for Justice, where he was the first attorney in U.S. history to win a First Amendment challenge against a food standard of identity. He has written extensively on this topic, including in the Georgetown Journal of Law and Public Policy.