July 1, 2008
By Vicky Uhland
Two trade associations filed a lawsuit Monday against the state of Ohio challenging its new rule that restricts how dairy products that don't contain artificial growth hormones can be labeled.
The Organic Trade Association and the International Dairy Foods Association charge that the Ohio regulations interfere with their members' First Amendment rights to communicate truthful information to Ohioans. Both groups take umbrage with Ohio's rule that dictates not only the words manufacturers can use to communicate that their products are hormone-free, but also the placement and size of the language.
Ohio's new rule, which went into effect May 22, with a 120-day implementation period, states that dairy labels that make claims like "this milk is from cows not supplemented with" rbST or rbGH growth hormones "may be considered misleading" unless:
The manufacturer can supply documents such as producer affidavits, farm weight tickets and plant audit trails to support the claim.
"The label contains, in the same label panel, in exactly the same font, style, case, size and color" as the hormone-free claim, a statement like "The [Food and Drug Administration] has determined that no significant difference has been shown between milk derived from rbST-supplemented and non-rbST-supplemented cows." Other states allow the manufacturer to decide where to place the disclaimer and how big it should be.
In addition, the state ruled that claims such as "no hormones," "hormone-free," "rbST-free" and "rbGH-free" are "false and misleading. [The Ohio Department of Agriculture] will not permit such statements on any dairy product labels."
"After months of input from consumers and industry stakeholders, this rule was developed to give guidance to the dairy industry to prevent mislabeled products," Ohio Agriculture Director Robert Boggs said in a statement. "Our No. 1 goal is to provide consumers with safe and healthy foods, and to offer clear and consistent information about the food consumers purchase."
In a statement, the OTA said the U.S. Department of Agriculture organic standards prohibit growth hormones and Ohio has "essentially chosen not to recognize the federal Organic Foods Production Act." The Ohio rule also violates the U.S. Constitution's sole authority to regulate interstate commerce by controlling dairy products produced outside of Ohio that are shipped into the state and Ohio products that are shipped out of the state, the OTA said.
The IDFA noted that because the Ohio rule "goes well beyond the labeling guidance offered by the FDA and is significantly different than most other states," dairy companies would have to create special labels just for Ohio.
Ben & Jerry's, a South Burlington, Vt.-based ice cream manufacturer that is supporting the lawsuit, estimates that it would cost more than $250,000 to change its labels in Ohio. In addition, spokesman Rob Michalak said that the company would need to overhaul its distribution system to ensure Ohio received products with special labels.
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