For three years, Mary Lou Wesselhoeft, a 61-year-old Florida Panhandle dairy farmer, had been selling milk at nearby farmers markets and health food stores in an effort to keep her dairy farm afloat. The last thing she was trying to do was to dupe customers who went out of their way to score a cold bottle of her Ocheesee Creamery pasteurized skim milk.
But Florida authorities saw it differently.
Because Wesselhoeft doesn't add vitamins back in once the fat is removed, officials say her skim milk is considered an "imitation milk product" and in 2012 insisted that she begin labeling it "Non-Grade 'A' Milk Product, Natural Milk Vitamins Removed" — wording Wesselhoeft is dead set against adding.
"They want it to be called imitation milk, but it isn't," she says. "We just want to be able to tell the truth about our milk. We never claimed there was vitamin A in there," Wesselhoeft says.
She's still skimming her milk — the fat and vitamins that go with it are used to make butter, ice cream and whole milk products she sells. But, with the exception of a small amount that she is allowed to use in yogurt, she's been forced to dump hundreds of gallons of her skim milk ever since. Unfortunately, it looks like the dumping will have to continue.*
Last week, a federal judge ruled that state officials are perfectly within their rights to require added vitamins as part of nutritional standards for milk. Indeed, the Food, Drug & Cosmetic Act, implemented by the FDA, has developed standards of identity for hundreds of foods besides skim milk. For example, that's why jars labeled "jam" are made from whole fruit, while "jelly" is made from fruit juice.
As we're seeing in the ongoing fight over GMO labeling, or in arguments being made against marketing terms like "all natural," there's a lot riding on the precise words companies use to sell Americans food.
For Wesselhoeft and her attorney, Justin Pearson at the Institute for Justice, a libertarian public interest law firm, the fight over Ocheesee Creamery's skim milk isn't just a labeling issue. They're framing it as First Amendment challenge and are now planning to appeal last week's ruling.
"Nowhere in the Constitution does it give the government the right to dictate what Americans can buy or eat. That's why this is a First Amendment argument. No governor or president has the authority to say you cannot buy milk without vitamins," says Wesselhoeft.
Part of the heel-digging stems from the dairy being allowed to sell its skim milk for several years without challenge.
"They were selling the milk for three years with the state's knowledge and the state inspecting it every month," says Pearson. "Then, out of the blue, after three years with no complaints or confusion, the state realized it didn't meet the definition of skim milk and told Mary Lou she would have to inject vitamin A into the skim milk or call it something else."
Wesselhoeft says it was a new commissioner and a change in dairy inspectors that prompted the state's actions. Officials from the Florida Department of Agriculture did not answer questions on staffing changes, saying only, "We are pleased with the judge's ruling, as this case has always been about ensuring that consumers are aware of the nutritional value of the products they purchase and feed to their families."
Pearson says Wesselhoeft tried to resolve the issue, approaching officials with a number of labeling alternatives for her skim milk. All were denied.
"They said she could change the label as long as she doesn't call it skim. ... Mary Lou would have to call it imitation skim milk. It violates her principles," he says.
Susan Schneider, director of the postgraduate degree program in agricultural and food law at the University of Arkansas, says the judge's ruling was correct. Under federal and Florida state law, skim milk must have the nutrients added back in, or it runs contrary to long-established milk labeling laws, industry practices, and consumer expectations.
"It cannot be nutritionally inferior and still be called milk," Schneider told us via email. "Here the dairy wishes to sell a product with the nutrients stripped out, promoting it as a natural product to consumers who have always assumed that skim milk had all the same nutrients, without the fat."
In some ways, the case has parallels to claims that Hampton Creek's Just Mayo was misleading consumers because it was made without eggs. Pearson notes that those charges were led by the egg industry, which saw Just Mayo as a threat. But in this case, he says, none of Wesselhoeft's customers complained that her skim milk lacked the vitamins found in Ocheesee's whole milk products. Schneider says the difference is that Hampton Creek didn't try to challenge the requirement that its product be nutritionally equivalent.
"We are now only beginning to appreciate the links between diet and health. There are compelling arguments to protect the nutritional integrity of the foods we eat," she says. "If a manufacturer takes nutrients out of food through processing and still wants to use the common name of the food, the nutrients have to go back in so that the nutritional value of the food is preserved."
Her advice for milk drinkers?
"If you drink milk and are seeking natural 'real food', just drink whole milk, organic preferred."
After all, in recent years research has suggested that whole milk may actually be better for waistlines anyway.
* Wesselhoeft's lawyer says his client can't donate her skim milk to food pantries or shelters — she'd have to get the label approved first.
Clare Leschin-Hoar is a journalist based in San Diego who covers food policy and sustainability issues.