Eleventh Circuit Does Not Skim Over First Amendment Concerns In Labeling Milk

Be careful not to skim over potential First Amendment challenges to commercial speech regulations in labeling cases. By 'whey' of example, the Eleventh Circuit recently found that the actions of the Florida Commissioner of Agriculture and the Chief of the Florida Bureau of Dairy Industry violated Ocheesee Creamery LLC's First Amendment rights related to the labeling of its products. Ocheesee Creamery LLC v. Putnam, 851 F.3d 1228 (11th Cir. 2017).

Ocheesee Creamery is a dairy company that produces milk and other dairy products. One such product is an all-natural, additive-free 100% skim milk, which Ocheesee Creamery labels as "skim milk" on the product packaging.

Florida law restricts the sale of milk and other milk products not classified as "Grade A" products. A "Grade A" designation requires that any vitamin A that is lost or removed from a product during the skimming process be replaced. Because Ocheesee's product did not qualify for this Grade A designation,