Breaking News: Court Overturns Ohio’s Attempt to Prevent Labeling of Hormone-Free MilkOctober 12, 2010
This landmark court decision reaches far beyond Ohio. It means that milk—and maybe other food too—can be clearer about its origins.
The organic milk industry has won a significant battle with the state of Ohio over consumers’ right to know what has been added to the milk their children drink. Or, more precisely, what hasn’t been added.
Last August we told you about a lawsuit filed by the Organic Trade Association. The suit came about because of some serious dirty dealings between the FDA, a major biotech manufacturer, and state governors.
The background details are fascinating but a little intricate. We offer them here for readers who are interested in an appalling case study of crony capitalism (the rest of you may wish to skip down past the bullets):
- The story begins with Michael R. Taylor. He worked for the FDA in the 1970s, then went into private practice representing Monsanto, the multinational agricultural biotechnology giant, where he established the firm’s “food and drug law” practice—specifically, the policy regarding Monsanto’s genetically engineered bovine growth hormone (rbGH/rbST, also commonly referred to as BGH, for short), injected into cows to increase milk supply.
- In 1991 he returned to the FDA for three years as Deputy Commissioner for Policy. During that time, the FDA approved the use of rbGH. Government scientists from Canada evaluated the FDA’s approval of rbGH and concluded that it was a dangerous façade. The drug was banned in Canada, as well as Europe, Japan, Australia and New Zealand, though it still lurks behind friendly “All Natural” labels of companies like Breyers Ice Cream.
- When the FDA okayed the use of rbGH, sales of organic milk began to climb, because organic rules prohibit the use of rbGH in milk production. Some brands of milk—both organic and conventional—were sold with notices that they were produced without the hormone. But factory farmers using the hormone opposed those notices, and Taylor wrote a white paper at the FDA—the “interim guidance” document from 1994—suggesting that if companies ever labeled their products as being rbGH-free, the Agency should require an asterisk leading to the following statement: “The FDA has determined that no significant difference has been shown between milk derived from rbST supplemented and non rbST supplemented cows”—despite the fact that Monsanto’s own studies and FDA scientists officially acknowledged differences in milk from the drugged cows! Monsanto used Taylor’s white paper as the basis to successfully sue dairies that labeled their products as “rbGH-free” or “artificial hormone free.”
- Taylor moved from the FDA to the USDA for two years in the mid-1990s, where he was Administrator of the Food Safety and Inspection Service. He then returned to Monsanto as a vice president. During this period, Monsanto tried unsuccessfully to convince the FDA and FTC to make it illegal for dairies to make rbGH-free claims. But Monsanto had a friend in Pennsylvania, a contact Taylor had forged during his USDA tenure: State Secretary of Agriculture Dennis Wolff. He unilaterally declared that labeling products rbGH-free was illegal, and that all such labels must be removed from shelves statewide. This would, of course, eliminate the label from all national brands, as they couldn’t afford to create separate packaging for just one state. Consumer demand forced a compromised position that now requires rbGH-free claims to also be accompanied by Taylor’s FDA disclaimer on the package.
- Ohio not only followed Pennsylvania’s lead on the packaging disclaimer, they went a step further. They declared that dairies must place that disclaimer on the same panel where rbGH-free claims are made, and even dictated the font size. This would force national brands to redesign their labels and would likely ultimately dissuade them from making rbGH-free claims at all.
- In 2007, a coalition of five organizations filed an “imminent health hazard” Citizen Petition with FDA, detailing the abnormalities in milk from cows injected with the growth hormone. The FDA never responded—never even acknowledged receipt of the petition. In January of this year, the same coalition re-filed the same Citizen Petition with the FDA, but this time the Commissioner dismissed it on alleged procedural grounds—something that had never been raised with any prior Citizen Petitions. Coincidentally, Taylor became the Deputy Commissioner for Foods at the FDA last July! (Special thanks to GMO investigator Jeffrey Smith, founder of the Institute for Responsible Technology, for helping us piece together the Taylor saga.)
In June 2008, the Organic Trade Association and the International Dairy Foods Association filed a lawsuit against Ohio over the labeling regulation, claiming that it stifles free speech, restricts the flow of products in interstate commerce, and is preempted by a longstanding federal organic law. They lost the suit, but filed an appeal—which they have now largely won!
A district appeals court (in a unanimous decision) has overturned Ohio’s effort to prevent the labeling of milk as being free from artificial hormones, ruling that there is indeed a “compositional difference” between milk from cows treated with growth hormone and untreated cows. The court will allow Ohio to require a disclaimer on the cartons of those dairies who proclaim to not use the drug, though this may fuel further litigation. But they told Ohio that they couldn’t require that the disclaimer be on the same panel of the package as the drug-free claim or the same font size.
This decision sets a tremendous precedent that could affect how other foods are labeled, and may have far-reaching consequences for other artificially enhanced or genetically engineered foods—perhaps including the genetically engineered salmon that is under consideration by the FDA. Finally, nearly seventeen years after the FDA issued its first labeling “guidance,” a deception engineered by a former Monsanto employee, the court has sided with the scientific evidence.