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Director Robert Boggs said he expected ODA's rule to be challenged.

The Ohio Department of Agriculture (ODA) is on the receiving end of two separate lawsuits from organizations claiming that its recently enacted dairy labeling rule violates constitutional rights.

The Organic Trade Association (OTA) and the International Dairy Foods Association (IDFA) both filed legal action Monday against the rule preventing false or misleading labels on dairy products.

Both organizations claim the Ohio rule interferes with First Right Amendments to communicate truthful information to Ohioans and interstate commerce.

Under ODA’s rule:

• A label promoting that milk came from cows not given the synthetic hormone rbST (also known as rbGH) must include a contiguous disclaimer explaining there is no significant difference between it and milk from cows treated with rbST. Processing plant audit trails, farm weight tickets and producer affidavits can be used to verify the claim.

• Labeling is allowed to say that cows were not given antibiotics, or similar production claims, as long as they are verifiable.

Statements not allowed include:

• Hormone-free – This claim is false as all milk contains hormones.

• rbST-Free – This claim cannot be proven, because no test can detect rbST.

• Antibiotic-free, Pesticide-free – These claims are misleading as these substances are illegal in all dairy products.

According to the IDFA lawsuit :

“The Ohio rule goes well beyond the labeling guidance offered by the Food and Drug Administration (FDA) and is significantly different than most other states. As a result, dairy companies will have to create special labels just for Ohio or do away with labeling that provides information about the use of artificial growth hormones. The net effect, IDFA says, is the Ohio law for many of its members is unworkable, costly and impedes commercial free speech and interstate commerce.”

The legal action by IDFA asks for an immediate injunction.

OTA's lawsuit said the Ohio rule violates the U.S. Constitution in three distinct ways:

“First, the Ohio rule violates the OTA members’ free speech rights.Second, the Organic Foods Production Act already provides substantial regulation of the organic products industry and preempts enforcement of the Ohio rule with respect to labeling protocols followed by organic dairy farmers. The USDA’s National Organic Program already has clear labeling requirements for certified organic labels.Third, The Ohio rule violates the Commerce Clause of the U.S. Constitution which gives Congress sole authority to regulate interstate commerce. Ohio has violated that prohibition 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.”

Ohio Dairy Producers Denounce IDFA Lawsuit

The Ohio Dairy Producers Association, representing hundreds of Ohio dairy farmers, has commended ODA and State Legislators for creating the benchmark regulation in dairy labeling.

ODPA said it is disappointed in the International Dairy Foods Association for filing the lawsuit challenging Ohio's dairy labeling regulation. “We believe Ohio's dairy labeling rule helps secure the consumer's right to complete, honest, and up-front information regarding the foods they eat. ODPA applauds the state of Ohio for protecting consumer interests with responsible labeling regulation, and for being progressive with dairy labeling that should be adopted nationwide,” the association said in a release Tuesday.

OFBF policy supports rule

The Ohio Farm Bureau Federation supports ODA’s rule because it falls into line with Farm Bureau policy set by members in 2007 stating all food labeling claims should be science-based, while false and misleading labels, promotional materials or other advertising for food products should not be used.

ODA Director Rober Boggs said in February he expected the department would be sued regarding the ruling. “We would aggressively resist the lawsuit,” he told farmers at that time.

Read more about the lawsuits brought against ODA in the future issues of Buckeye Farm News.