A dairy labeling regulation implemented by the Ohio Department of Agriculture (O.D.A.) that requires verification before approval and stipulates specific labeling language for certain claims is being challenged in court by the International Dairy Foods Association (I.D.F.A.) and the Organic Trade Association (O.T.A.).
The labeling rule, which was established on May 22 and set to take effect 120 days later, in September, requires label claims promoting the milk from cows not given the synthetic hormone rBST (also referred to as rBGH) must also include a disclaimer explaining rBST is safe. The rule goes even further by stipulating the size and font of the accompanying disclaimer must be identical to that of the initial claim.Since there is no test to detect rBST in milk, Ohio officials place the burden of verification on those applying for the label.
The rule also bans the use of claims such as "no hormones," "hormone free," "rBST free," and "no artificial hormones," because O.D.A. officials consider them to be false and misleading. In addition, claims that indicate the absence of compounds not allowed by the Food and Drug Administration to be present in any dairy products, such as antibiotics or pesticides, also are considered false and misleading under the rule.
In its lawsuit, the I.D.F.A. said the Ohio rule interferes with the First Amendment rights of its members to communicate truthful information to Ohioans and with interstate commerce.
"The practical effect of the Ohio rule silences manufacturers of dairy products and prevents Ohioans from knowing whether artificial growth hormones have been used in dairy products," said Peggy Armstrong, communications director for the I.D.F.A.
According to the I.D.F.A. lawsuit, the Ohio rule goes beyond the labeling guidance offered by the Food and Drug Administration. As a result, dairy processors will have to create special labels just for Ohio or do away with labeling that provides information about the use of artificial growth hormones.
Ben & Jerry’s, South Burlington, Vt., a subsidiary of Unilever, and a company that labels its products as rBGH-free, is supporting the I.D.F.A. in its effort to overturn the O.D.A.’s rule.
"Ohio’s new rule doesn’t do a thing for consumers to improve upon guidelines that the F.D.A. has had in place since 1994," said Rob Michalak, Ben & Jerry’s social mission director. "Ohio is trying to fix something that is not broken. In fact, this new rule is essentially breaking something that has been working successfully for consumers for well over a decade."
Mr. Michalak added that the cost to change Ben & Jerry’s packaging just for Ohio would easily reach six figures. He said the operational complexity to segregate Ohio-specific packaging in a national distribution system would also be prohibitive.
The O.T.A. also is challenging the Ohio rule as unconstitutional for three reasons: First, like the I.D.F.A., the group said the rule violates freedom of speech. Second, the state labeling rules cannot supersede labeling rules within the federal National Organic Program. Third, the O.T.A. argues that the Ohio rule violates the Commerce Clause of the Constitution, which gives Congress the authority to regulate interstate commerce.
On July 1, Judge James L. Graham of the Ohio federal district court held a status conference with representatives of the I.D.F.A. and the O.T.A. The two lawsuits were consolidated under Judge Graham’s jurisdiction and the I.D.F.A. requested a delay in the implementation of the labeling rule until the suits are resolved.
Clay Hough, senior group vice-president and general counsel, said the I.D.F.A. did try to work with Ohio agriculture officials throughout the regulatory process, but was unable to reach a compromise acceptable to both sides.
"I.D.F.A. does not take this step lightly but feels that the commencement of litigation is the next necessary step in a process to resolve this important dispute not only in Ohio, but throughout the country," he said.
This article can also be found in the digital edition of Dairy Business News, July 22, 2008, starting on Page 10. Click