A protester in Columbus in 2008.

Appeals court gives OK for ‘rbST free’ and other labels

Buckeye Farm News

The court essentially overturned the Ohio Department of Agriculture’s (ODA) ban on claims that imply there is a compositional difference in milk from cows that have been given rbST and those that  haven’t.

For years, the U. S. Food & Drug Administration has maintained that supplementing cows with rbST does not significantly affect the composition of milk. The court, however, essentially rejected FDA’s findings, said Chad Endsley, Ohio Farm Bureau’s director of agricultural law.

“We’re not sure how the appellate court reached this conclusion since the plaintiffs did not challenge or dispute the science behind the FDA findings, and therefore, no scientific evidence was presented to the trial court,” he said.

“Instead the appellate court relied upon studies cited by some of the organizations that filed amicus briefs in opposition to ODA’s rule, the credibility of which ODA had no opportunity to challenge.”

In rules developed in 2008, ODA had permitted labels that said milk was “from cows not supplemented with rbST.”

These labels had to be verifiable, follow specific formatting guidelines and include a disclaimer stating that “the FDA has determined that no significant difference has been shown between milk derived from rbST-supplemented and non-rbST-supplemented cows.”

The International Dairy Foods Association and the Organic Trade Association sued ODA, saying its rules violated free speech and a commerce clause.

The challenge to ODA’s dairy label rule was of concern to Ohio Farm Bureau members because state policy opposes the use of “false and misleading labels, promotional materials or other advertising for food products.”

“Absence labels” such as “rbST free” are a concern because they can confuse consumers into thinking that some products are safer than others even though there is no scientific evidence, said David White, Ohio Farm Bureau’s senior director of issues management.

“We are not advocating for or against rbST. We want producers to have the choice to use products that have been determined to be safe by the FDA, and we don’t want consumers to be confused,” he said.

ODA has decided not to ask the entire 6th Circuit Court, which has 16 judges, to rehear the case, and it has not said whether it will appeal to the U.S. Supreme Court.

Overall, the court upheld a majority of ODA’s rule, saying that:

  • The state can require a disclaimer for potentially misleading composition claims such as “rbST free.”
  • ODA could ban inherently misleading  composition claims, like “antibiotic free” and “pesticide free,” if it can demonstrate that these substances are never present in any milk.
  • ODA can require a disclaimer for production claims, such as “this milk is from cows not supplemented with rbST.”
  • ODA can enforce its label formatting requirements, but  cannot forbid the use of an asterisk linking the claim and disclaimer.
  • The Ohio rule does not violate a commerce clause.

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