OTA, IDFA Challenge Ohio Over Dairy Labeling

COLUMBUS, Ohio—The Organic Trade Association (OTA) and International Dairy Foods Association (IDFA) filed a lawsuit in the U.S. District Court, Southern District of Ohio, against Ohio’s Department of Agriculture, challenging the legality of an “emergency” rule prohibiting labeling that identifies whether cows were treated with recombinant bovine somatotrophin (rBST), a synthetic growth hormone. Under the federal National Organic Program (NOP), organic farmers are prohibited from using such hormones or other genetically modified organisms (GMOs); in its lawsuit, OTA contends by prohibiting labeling dairy products as coming from cows not treated with synthetic growth hormones, the state is out of compliance with federal standards.

Ohio’s governor, Ted Strickland, issued an Executive Order in February 2008 allowing implementation and enforcement of Administrative Rule 901:11-8-01, covering changes to dairy labeling. In issuing the order, Strickland noted FDA has not found any difference between dairy products from cows treated with rBST and those not treated, and by touting such a difference in production, consumers are possibly being misled.

The regulation officially went into effect May 22, 2008, with a 120-day implementation period. It considers dairy products to be misbranded if they contain a false or misleading statement, and a comparative rBST statement can be considered misleading unless:

(1) The labeling entity has verified that the claim is accurate, and proper documents, including, but not limited to, producer signed affidavits, farm weight tickets and plant audit trails, to support the claim, are made readily available to [Ohio Department of Agriculture] for inspection; and

(2) The label contains, in the same label panel, in exactly the same font, style, case, size and color as the foregoing representation, the following contiguous additional statement (or a substantially equivalent statement): “The FDA has determined that no significant difference has been shown between milk derived from rbST-supplemented and non-rbST-supplemented cows.”

In the June 30 filing, OTA and IDFA argued the rule violates several tenets including First Amendment free speech rights, overreaches the already substantial federal regulation of the organic industry, and violates the U.S. Constitution’s Commerce Clause, which provides Congress sole authority to regulate interstate commerce, by regulating dairy products outside of Ohio shipped into the state and the labeling of those produced within Ohio for export.

Caren Wilcox, OTA’s executive director, said the association believes consumers and organic farmers and processors should have open communication regarding organic products. “Any restrictions on our members’ right to communicate details of federally regulated organic production practices, such as the non-use of added growth hormones and especially those derived from genetic engineering, or the use of pesticides and antibiotics, will hurt organic farmers, producers and processors,” she said. “More importantly, the regulations will restrict the rights of consumers to truthful information about the milk produced by organic dairies.”

OTA noted while the executive order was issued in February, the association did participate in two sets of hearings on the topic, and provided white paper advisement to Ohio's Joint Committee on Agency Rule Review. According to Holly Givens, OTA's public affairs advisor, OTA’s board of directors and its Dairy Labeling Task Force recommended legal action "only after it became clear that there was no other way to protect consumers’ rights to truthful information about the organic products they choose and to protect OTA members’ rights to provide truthful and non-misleading information to consumers."

IDFA and OTA are seeking an immediate injunction until the legality of the Ohio regulation can be determined. Peggy Armstrong, communications director for IDFA, added, “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.” In addition, several IDFA members filed declarations of support of the lawsuit, including large players such as Ben & Jerry’s and Tillamook, and smaller producers for whom compliance costs could be prohibitively costly. In his declaration, Steve Schmid, president of Smith Dairy in Orrville, Ohio, said 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.