A Maryland dairy farmer has reached an agreement with the Food and Drug Administration on the labeling of his skim milk.
Through a lawsuit, Randy Sowers of Middletown received sworn statements that the agency would not require him to label his skim milk, which he does not fortify with vitamins, as an “imitation” product.
Federal regulations apply that term to nutritionally inferior variants of a food, but Sowers thought “imitation” would be a confusing term for a product that contained cow’s milk and nothing else.
Adding vitamins is simple, but Sowers told Lancaster Farming in 2018 that he believed milk did not need additives to be healthful.
Sowers, of South Mountain Creamery, planned to expand sales into Pennsylvania, which would bring federal interstate commerce laws to bear.
Concerned that proceeding with the wrong labeling could bring him fines or jail time, he sued the FDA in federal court two years ago.
Sowers was represented by the nonprofit Institute for Justice, which said the agency had long insisted on the “imitation” designation for non-fortified skim.
But from the beginning of the lawsuit, the agency said it would not require such language and offered Sowers several alternative labels, such as “Skim milk, 0% DV vitamins A&D.”
The wording was designed to fit on a bottle cap because Sowers sells milk in reusable glass bottles.
The FDA said it could not identify any instances when it had taken misbranding enforcement action related to additive-free skim milk.
Susan Mayne, the FDA’s top food labeling official, reaffirmed in an April 2019 court filing that Sowers only needed to identify the absence of vitamins A and D on the label, and she said that rule would also apply to other farms that wanted to sell non-fortified skim.
On the strength of those assurances, the U.S. District Court for the Middle District of Pennsylvania dismissed Sowers’ case against the FDA in February.
Sowers too was satisfied and ended his lawsuit last month. The sworn testimony afforded him greater protection than the letter the FDA had sent him at the outset of the lawsuit.
Still, the suit was dismissed without prejudice, meaning Sowers could revisit the issue in the future if the FDA changes course.
In an April 22 letter to Sowers, the agency said it has no plans to change its position, but even if it did, businesses would get an opportunity to comply with the new rules before facing enforcement.
The Institute for Justice had previously won a legal challenge to a skim milk labeling rule in Florida, and the FDA said it considered that case when responding to Sowers’ case.