Unsplash/Leon Ephraim
Ocheesee Creamery's free-speech victory.

Commentary

I write a lot about lawsuits. Partly that’s because they’re important, and the decisions of courts come to affect the rest of us in ways that aren’t always apparent at first. But mostly it’s because lawsuits are a kind of funhouse mirror that takes ordinary events and makes them strange. You look at something mundane and obvious, and suddenly it’s not obvious at all.

Something mundane like skim milk. We all know what skim milk is, right?

Or do we? This week, a long-awaited court decision (well, I’ve been waiting for it) reminded us once again that we dwell in a veil of illusion—or at least that regulation is hell.

Under Florida law, if you don’t add vitamin A to skim milk, it’s not a Grade A dairy product, and you’re not allowed to sell a non-Grade A dairy product in the state.

The simple answer is that skim milk is what’s left of whole milk after you let the cream rise to the top and you skim it off. That’s what the Ocheesee Creamery of rural Calhoun County, Florida, started selling in 2010: all-natural, nothing-added skim milk.

That may seem like a straightforward thing to do, but there’s a hitch. Virtually all the vitamin A in milk is contained in the cream. (Most vitamins are soluble in water. Vitamin A is soluble only in fat. Remove the fat, and you’ve removed the vitamin A.) What you buy in the supermarket as skim milk is almost universally skim milk fortified with enough vitamin A to make up for what was lost. Ocheesee, which doesn’t believe in additives, didn’t want to do that.

Under Florida law, if you don’t add vitamin A to skim milk, it’s not a Grade A dairy product, and you’re not allowed to sell a non-Grade A dairy product in the state. In 2012, Florida ordered Ocheesee to either meet the standard or stop selling the milk.

Ocheesee found a third alternative and applied for a permit under Florida’s imitation milk statute. OK, said the state, if you label it as “Non-Grade‘A’ Milk Product, Natural Milk Vitamins Removed.” (The state clearly is not run by marketing experts.) The creamery made multiple counteroffers, including “Pasteurized Skim Milk, No Lost Vitamin A Replaced,” “Non-Grade ‘A’ Skim Milk, Some Milk Vitamins Reduced by Skimming Cream From All-Natural Pasteurized Milk,” and even “The State Requires Us to Call This ‘Non-Grade “A” Milk Product, Natural Milk Vitamins Removed.’ It Is All-Natural Skim Milk With Some Natural Vitamins Removed by Skimming Cream From Milk.” That last one almost worked—but the state insisted in changing the “skim milk” in the last sentence to “milk product.”

It was false and misleading, because Florida had a legal definition of skim milk, and Ocheesee’s didn’t meet it.

You’ll notice that at this point, the fight changed from one focused on whether Ocheesee can sell its product at all to one over what to call it. That, Ocheesee reasoned, made it a free speech case, and it sued the state, arguing that its First Amendment rights had been violated. The district court granted summary judgment to the state, arguing that it was inherently misleading to call a product “skim milk” if it didn’t have the same vitamin content as whole milk, or to put it in other words, it’s confusing to call something “skim milk” if all it contains is, well skim milk. Ocheesee appealed.

Now, the First Amendment rights of companies engaged in what the courts call “commercial speech”—advertising and the like—are a funny thing. The concept of free speech didn’t even apply to commercial speech until 1975, when the Supreme Court struck down a Virginia law that prohibited pharmacies from advertising the prices they charged for prescription drugs. Even now, the states can regulate commercial speech, but there are rules.

Rule 1: The state can prevent companies from speech that concerns unlawful activities. The state can block you from advertising cocaine or airing a TV spot encouraging homicide. Rule 2: The state can block advertising that is false or inherently misleading. (A night of watching TV will amply demonstrate that while they can, they often don’t.)

Because it lacks the additives, you can’t sell it.

As far as Florida was concerned, Ocheesee failed both tests. It was engaged in unlawful activity because it was trying to sell less-than-Grade-A milk, contrary to state law. And it was false and misleading, because Florida had a legal definition of skim milk, and Ocheesee’s didn’t meet it.

Think of that: Here you have some perfectly good skim milk, sans additives. And because it lacks the additives, you can’t sell it. And because you can’t legally sell it–even if they decide to let you sell it–they have the power to tell you that you can’t call it what it is. Even though you could, if you could just agree on a label. Which you can’t, unless you’re willing to claim that your product is something other than milk, which it isn’t, because people might be confused if you called it what it is, because the state has defined something else as skim milk.

Legal reasoning. When you want your head to spin, it’s better than cheap bourbon.

You can define a lamb’s tail as a leg, but it’s still only got four legs. Naming a thing doesn’t change its nature.

In this case, the court apparently stayed sober. They pointed out that it wasn’t illegal to sell unfortified skim milk, since the state was willing to grant an imitation milk permit to do just that. And they made a commonsense observation about the confusion argument: “It is undoubtedly true that a state can propose a definition for a given term. However, it does not follow that once a state has done so, any use of the term inconsistent with the state’s preferred definition is inherently misleading.”

Or, to put in terms of a joke Abe Lincoln loved: You can define a lamb’s tail as a leg, but it’s still only got four legs. Naming a thing doesn’t change its nature.

That’s a lovely thought, but I wouldn’t count on its winning the day. There are a lot of definitions on the table in the food world: organic, healthy, natural, GMO…. Our tendency has been to believe that reality conforms itself to the legal definition, but as the Ocheesee case points out, that way lies absurdity—the veil of illusion.

Can I hear an “om”?

Patrick Clinton

Patrick Clinton is a long-time journalist and educator. He edited the Chicago Reader during the politically exciting years that surrounded the election of the city’s first black mayor, Harold Washington; University Business during the early days of for-profit universities and online instruction; and Pharmaceutical Executive during a period that saw the Vioxx scandal and the ascendancy of biotech. He has written and worked as a staff editor for a variety of publications, including Chicago, Men’s Journal, and Outside (for which he ran down the answer to everyone’s most burning question about porcupines). For seven years, he taught magazine writing and editing at Northwestern University's Medill School of Journalism.