ORGANIC TRADE ASSOCIATION FIGHTS
OHIO’S DAIRY LABELING ACTION
Files suit to protect integrity of organic standards
& consumers’ Constitutional right to product information
UPDATE: On September 17, OTA deposed Ohio Department of Agriculture leaders.
On August 26, OTA presented a stance at an Indiana Meeting.
On July 30, OTA launched a legal defense fund.
On July 28, OTA filed a motion for summary judgement.
On June 30, 2008, the Organic Trade Association (OTA) filed a complaint against Ohio’s Director of Agriculture, Robert J. Boggs. This action was brought to protect the rights of consumers to receive truthful information about organic production practices on the labels of their milk and other dairy products in Ohio, and to protect the rights of organic dairy farmers and processors to communicate truthfully with consumers regarding federally regulated organic production practices.
In order to qualify for the organic label, organic farmers already are prohibited from using synthetic growth hormones such as recombinant Bovine Growth Hormone (rBST or rBGH) on their livestock. The statements organic dairy farmers make about non-use of synthetic growth hormones refer to mandated production and handling obligations. Congress enacted the Organic Foods Production Act to establish national standards for marketing of all organic products.
The new Ohio regulation improperly dictates organic dairy labels by excessively limiting the ability of manufacturers to provide truthful and non-misleading information to consumers, and thus infringes their First Amendment Right of free speech.
The Ohio regulation also violates the Commerce Clause of the U.S. Constitution–also known as the Interstate Commerce Clause–which gives Congress sole authority to regulate interstate commerce. States are prohibited from enacting regulations that directly regulate or discriminate against interstate commerce. The Ohio regulation has a direct impact on interstate commerce by regulating dairy products outside of Ohio that are shipped into the state and controlling the labeling of dairy products in Ohio that are shipped outside of the state.
The Ohio Governor's emergency regulation improperly violates the US Constitution in three fundamental ways:
1) The regulation stifles free speech by unduly regulating the language processors may use on their packages;
2) The regulation unduly restricts the flow of products in interstate commerce;
3) The regulation interferes with and is preempted by a longstanding federal organic law.
Ohio’s regulation prevents consumers in Ohio from receiving truthful information about the federally regulated farming and processing practices required by the Organic Foods Production Act for the production of certified organic milk and other organic dairy products. Any label by an organic producer that suggests that no artificial growth hormones are added is inherently truthful based on the organic industry’s careful adherence to the national standards governing the marketing of organic products.
Any restrictions on a person's ability to communicate details of these federally regulated organic production practices, such as the non-use of added growth hormones especially those derived from genetic engineering, pesticides and antibiotics, will hurt numerous organic farmers, producers and processors, and only help one entity – the seller of the rBST product – Monsanto. More importantly, the regulation will restrict the rights of consumers to provide truthful information about the milk produced by organic dairies.
OTA believes that the availability of milk and other dairy products without added growth hormones, and produced without the use of antibiotics, has helped staunch the decline in per capita milk consumption, and that it fulfills an important consumer demand.
In a time of unprecedented commodity pressures on milk producers, implementing regulations which impose significant cost and complexity on dairy producers suggests that the state is unaware of the economic hardships faced by domestic producers of milk.
Unfortunately, Ohio is not the only state erroneously attempting to regulate the labeling of dairy products placed in interstate shipment. OTA is concerned that, with many different states considering different labeling regulations with conflicting provisions, a confusing patchwork of rules could develop, making it costly, inefficient or even impossible to sell organic dairy products from one state to retailers and U.S. consumers in other states.
OTA recognizes the need for uniformity and consistency between states and regions relative to organic production and labeling. Ohio’s regulation will do exactly the opposite if allowed to go forward. It will create a series of confusing restrictions on truthful organic product labels. This could eventually lead to fewer choices for consumers in Ohio.
Effective federal guidance on dairy product labels involving milk from cows treated with synthetic growth hormones was established in 1994. For almost 15 years, the dairy industry operated under this well-settled labeling guidance. Despite this well-settled guidance, Ohio adopted, on an “emergency” basis, a new regulation concerning the labeling of dairy products produced without synthetic growth hormones. Under this regulation, if a dairy product sold in Ohio claims to be ‘from cows not supplemented with artificial growth hormones’ but does not include the claim ‘no significant difference has been shown between milk derived from rbST-supplemented and non-rbST supplemented cows,' then the product is misbranded, false, and misleading to consumers. Specifically, Ohio's regulation:
- Prohibits labels that communicate production practices required by law under the Organic Foods Production Act (OFPA) of 1990.
- Prohibits labels that are either expressly permitted in a number of states or not prohibited in other states.
- Dictates not only the words, but also the form, size, location and even color of the language that must be used on dairy product labels.
- Requires that dairy processors that are alleged to have violated those provisions are subjected to a range of penalties, including criminal prosecution.
OTA seeks to invalidate the new Ohio regulation and prevent the state of Ohio from restricting OTA members’ rights to inform consumers of accurate information regarding federally regulated organic production practices. The Organic Foods Production Act of 1990 already provides substantial regulation of the organic products industry and thus preempts enforcement of the dairy-labeling rule of the Ohio Department of Agriculture. By this lawsuit, the OTA also seeks to prevent the state of Ohio from further denying OTA members’ fundamental rights (including the First Amendment right of free speech) under the United States Constitution. This lawsuit is being filed simultaneously with a similar one by the International Dairy Foods Association.