A federal court in Florida ruled against a small creamery earlier this week preventing them from labeling their skimmed milk product “skim milk.”

Per court documents, the Florida Department of Agriculture and Consumer Services (DACS) informed the Ocheesee Creamery in October 2012 that they could not sell pasteurized skim milk labeled as “pasteurized skim milk” unless the creamery injected a vitamin A additive into its pasteurized skim milk. The creamery skimmed cream from its whole milk, sold the cream and also sold the leftover nonfat milk, without restoring vitamins A and D. It then labeled the product “skim milk.”

Notably, whole milk includes both water soluble vitamins and fat soluble vitamins. As a fat soluble vitamin, vitamin A is located in the cream of the milk and skimming cream removes most of the vitamin A from the milk. Thus, in order for skim milk to have the same amount of vitamin A as whole milk, vitamin A must be artificially replaced in the skim milk with an additive.

Ocheesee refused to inject anything into its skim milk and the defendant, DACS, issued a stop-sale order claiming the creamery violated “the standard of identity for skim milk.” In filing its lawsuit, Ocheesee argued it had a right to label its vitamin-deficient nonfat milk as “skim milk” under the First Amendment, despite not meeting the standard of identity for skim milk established at both federal and state levels.

The court, acknowledging that commercial speech enjoys protection under the First Amendment, cited Central Hudson Gas & Electric Corp. v. Public Service Commission of N.Y., 447 U.S. 557, 563–66 (1980). Under Central Hudson, “a restriction on commercial speech is 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.”

Applying the Central Hudson factors, the Florida court determined that “the governmental interest in establishing a standard of identity and nutritional standards for milk is substantial.” The court further concluded that “a standard of identity works only if products that do not meet the standard cannot appropriate the identity.” In even bolder language, the court deemed the creamery’s argument “a frontal assault on the Federal Food, Drug, and Cosmetic Act and its state counterparts, whose validity was established long ago.”

The Institute for Justice is suing on behalf of the creamery and plans to appeal the decision.

A copy of the creamery’s original complaint may be viewed here.

The order granting summary judgment for the defendants is available here.