Commercial Speech, Privacy, Data Protection and Retention
Ernst August von Hannover v. Germany
On Appeal Contracts Expression
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The U.S. District Court for the Northern District of Florida rejected a challenge to Florida’s skim milk labeling law brought by the Owner of Ocheesee Creamery, Mary Lou Wesselhoeft. She was denied permission to label her milk as “skim milk,” because she refused to add artificial vitamin A to her milk product, per the requirements of Florida’s nutritional guidelines for skim milk. The Court held that the State of Florida had a substantial interest in establishing a standard of identity and nutritional standard for milk and that labeling guidelines advanced that interest.
DACS did not dispute that the pure skim milk was legal to sell and safe to drink, and consisted entirely of the ingredient skim milk. However, it stressed that skim milk cannot be labeled as skim milk unless vitamin A supplements were added to it, per the requirements of Section 341 of the Federal Food, Drug, and Cosmetics Act mandating that skim milk had to have the same nutritional value as unfortified whole milk.
Wesselhoeft refused to inject anything into her all-natural skim milk and DACS banned her from using the words “skim milk” and ordered her to label it “imitation milk product” instead. She suggested other labels but DACS rejected them. Wesselhoeft decided to stop selling skim milk rather than mislead her customers and brought a First Amendment challenge to the requirement that a product sold as “skim milk” contain the same vitamins as whole milk.
Wesselhoeft argued that she had the right to use the label “skim milk” under the First Amendment protections of commercial speech because although the product did not meet the required standard of identity since it was vitamin-deficient, it was still nonfat milk that was wholesome, not harmful, and thus did not mislead anyone.
United States District Judge Robert Hinkle wrote the decision. He noted the Federal Food, Drug, and Cosmetic Act that passed in 1938 established a “reasonable definition and standard of identity” as well as a “reasonable standard of quality” for any food. [p. 2] This case concerned “reasonable definition and standard of identity.” According to section 341 of the Act, skim milk had to have the same nutritional value as unfortified whole milk. This federal standard applies only to skim milk in interstate commerce but the State of Florida adopted the same requirement for milk sold intrastate.
The Court pointed out that First Amendment protections extended to commercial speech and that the Supreme Court has explained that the government may freely regulate commercial speech if it concerns unlawful or misleading activity. Restrictions on commercial speech are valid only if: “(1) the asserted governmental interest in restricting the speech is substantial; (2) the challenged restriction directly advances the asserted governmental interest; and (3) the restriction is not more extensive than is necessary to serve that interest.”[p. 4] This is known as the Central Hudson test.
The Court held that as a general matter the Federal and State statutes adopting standards of identity and nutrition for foods, including for skim milk, easily pass muster under Central Hudson. A state can recognize and deliberately create a standard meaning for a term used to describe a food product. It was held that even if it would not mislead consumers to use the label ‘skim milk’, the governments interest in establishing a standard of identity and nutritional standard for milk is substantial, the restriction advances that interest, and is not more extensive than is necessary to serve that interest.
The Court therefore entered summary judgment for the defendants.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The decision contracts expression. The court reiterated that although the label of “skim milk” would not mislead consumers, since the milk in question was skim milk, the State had a substantial interest in creating a standard for skim milk.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
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