2 July 2008

4 minute read

North America

In the lawsuit, IDFA says the Ohio rule interferes with the First Amendment right of its members to communicate truthful information to Ohioans and with interstate commerce.

The complaint is the result of a controversial dairy product labeling regulation that went into effect on May 22, 2008 with a 120-day implementation period. IDFA members are manufacturers of dairy products, including milk, cheese and ice cream. They want to be able to tell consumers which products come from cows that have not been treated with the artificial growth hormone, commonly referred to as rbGH or rbST. IDFA's lawsuit says that Ohio’s rule -- which dictates not only the words, but the font, style, case, color and even size of the language that must be used on labels -- poses unconstitutional restrictions.

“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 IDFA. Armstrong said Ohio’s labeling regulation is so cumbersome, especially for national and regional dairy manufacturers, that many will be forced to simply drop information about artificial growth hormones on packages altogether.

According to the IDFA lawsuit, the Ohio rule goes well beyond the labeling guidance offered by the Food and Drug Administration (FDA) and is significantly different than most other states. As a result, dairy companies will have to create special labels just for Ohio or do away with labeling that provides information about the use of artificial growth hormones. The net effect, IDFA says, is the Ohio law for many of its members is unworkable, costly and impedes commercial free speech and interstate commerce.

In a declaration to the State of Ohio, Steve Schmid, president of Smith Dairy in Orrville, Ohio, said that complying with Ohio’s rule by the September compliance date would cost his company more than $6,250 per label and an additional $32,000 in current inventory would become obsolete.

In a similar declaration, William Luth of cheese processor Tillamook said that the Ohio regulation prevents Tillamook from selling nationally-branded products in Ohio unless the company changes all of its existing labels. Luth said the company cannot absorb these costs and may be forced to drop the “no use of rbST” claims on its labels, something consumers have repeatedly asked for.

A Ben & Jerry’s representative said the cost to change its labels would exceed $250,000, yet that is not the main reason the company filed a similar declaration against the State of Ohio. Rob Michalak said that to comply with the Ohio rule, the company would need to overhaul its entire distribution system to ensure Ohio received products with special labels, creating significant new and ongoing costs and putting the company at a competition disadvantage to those who only distribute in Ohio.

The Ohio Constraints

The Ohio regulation is more prescriptive than most other states in that Ohio:

• Requires that the disclaimer language suggested by the FDA be placed on a package immediately following a claim that the milk is from cows not treated with artificial growth hormones. Other states allow the processor or manufacturer to decide where to place the disclaimer. (Disclaimer language: “The Food and Drug Administration says there's no significant difference between milk produced by cows given the artificial growth hormone and cows that aren't.”)
  
  
• Dictates the font, style, case and color be the same for the disclaimer as the claim itself and includes typeface size restrictions. Other states do not mandate such onerous requirements. “Requiring the use of one label in Ohio when another is used in virtually every other part of the country imposes undue burden and costs on dairy product companies and this comes at a time when the state and national economies are under stress,” Armstrong said. The legal action by IDFA asks for an immediate injunction.

Consumer Perspective on Artificial Growth Hormones

“A growing number of consumers are asking for information about whether the dairy products they purchase are made with milk from cows not treated with artificial growth hormones," Armstrong said. "Under Ohio’s excessive rule, Ohioans will be left in the dark, which is exactly what proponents of this law are hoping to achieve."

According to a recent report by the U.S. Department of Agriculture, only 15 percent of dairy farmers use artificial growth hormones representing less than 18 percent of cows. In fact, consumer preferences have changed and there is a growing demand for dairy products made from milk produced from cows not treated with artificial growth hormones. In a survey reported by Consumer Reports National Research Center last year, 76 percent of respondents said they were very concerned or somewhat concerned with dairy cows given artificial growth hormones and 88 percent agreed that milk from cows not treated with artificial growth hormone should be labeled as such. Responding to this interest, a number of national and regional retailers and manufacturers are providing dairy products only made with milk from cows not treated with artificial growth hormones.

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