11th Cir. holds “skim milk” label protected by 1st Amendment

Originally published by Andre Hanson (US).

In a case with potentially significant ramifications for regulatory oversight of the labeling and advertising of foods and pharmaceuticals, the Eleventh Circuit held the First Amendment precluded the Florida Department of Agriculture’s Bureau of Dairy Industry (the “Florida Bureau”) from prohibiting a dairy company’s use of the phrase “skim milk” to describe its “all-natural” milk product. Ocheesee Creamery LLC v. Putnam, Case No. 16-12049, 2017 WL 1046104 (11th Cir. Mar. 20, 2017).

 

Read our full Client Alert discussing this important decision, here.

The case reflects a recent trend of increased scrutiny by the federal courts over FDA regulation of commercial speech that begin with the Second Circuit’s decision in Caronia (discussed here) and continued in cases brought by Amarin Pharma (discussed here) and Pacira Pharmaceuticals. With another Circuit Court ruling in a similar vein, the time may have come for companies marketing food and pharmaceuticals to more aggressive defend their First Amendment rights.

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