Milk hormone labelling law enjoined by appellate court

VERMONT–“Consumer interest” is not a sufficiently substantial government interest to justify limitations of commercial speech, a panel of the U.S. Court of Appeals in New York (2nd Cir.) ruled in early August.

The 2-1 decision preliminarily enjoined Vermont from enforcing a statute requiring dairy manufacturers to disclose on the label milk products made from cows given a synthetic growth hormone called “recombinant Bovine Somatotropin.” The appellate court reversed a federal District Court ruling.

Vermont adopted the statute in April 1994 despite a 1993 decision by the federal Food and Drug Administration to approve the use of rBST and not require labels identifying the hormone in dairy products. The FDA found that milk products taken from cows receiving the hormone were not distinguishable from goods that were not exposed to the hormone.

In response to the Vermont statute, six dairy organizations filed suit against the state, saying the new law violated the First Amendment. A federal District Court in Vermont ruled in favor of the state, denying the preliminary injunction and upholding the statute’s constitutionality.

The appellate court held that the labeling law violated the dairy producers’ right not to speak, which applies not just to political speech but to commercial speech as well.

Although the court was aware of Vermont consumers’ desires to know which products contained the hormone, that was an insufficient interest to justify restricting commercial speech. Health or safety issues of more “substantial government concern” would be necessary to justify the restriction, the judges said.

The dissenting judge found Vermont’s interests, included the hormone’s effects on the health of humans and cows, concerns about keeping small dairy farms in business and fears of manipulating nature through biotechnology, sufficient to justify the regulation. In addition, the majority disregarded the policy underlying commercial speech protection under the First Amendment, which is to “favor the flow of accurate, relevant information,” the judge argued. Because it encourages the disclosure of truthful information, the statute does not violate the First Amendment, according to the judge. (International Dairy Foods v. Amestoy; Plantiff’s Counsel: Steven Rosenbaum, Washington, D.C.)