There is another battle between the Institute for Justice and a government agency over milk – something that is becoming more common. Government (state and federal) is heavily involved in the milk industry and I have written about the government’s war against raw milk before.
But this latest story doesn’t involve raw milk. It is pasteurized milk. This is a government war over words.
Mary Lou Wesselhoeft, owner of Ocheesee Creamery, received an order two years ago from the Florida Department of Agriculture and Consumer Services. As you can guess, this department is not so much in the business of “consumer services”. The order stated that Wesselhoeft had to stop selling pasteurized skim milk or stop calling it pasteurized skim milk.
The problem here is that the product that was being sold is pasteurized skim milk, just as it was being labeled. But the government of Florida says that you can only call it skim milk if it is artificially injected with Vitamin A. But the Ocheesee Creamery does not want to inject anything in its skim milk and it wants to tell consumers what it is selling.
In other words, the Florida government is encouraging the false labeling of products. Since Wesselhoeft doesn’t want to inject anything into her skim milk and she doesn’t want to mislead consumers as to what she is selling (pasteurized skim milk), she decided to stop selling her milk.
Again, this is the Florida Department of Agriculture and Consumer Services causing this. They are helping consumers by either misleading them or shutting down products that are sought.
The Institute for Justice (IJ) has a National Food Freedom Initiative and has taken up Ocheesee Creamery’s case. They are filing a lawsuit, arguing that this violates the First Amendment.
The First Amendment vs. Bad Law
I think it is great that we have organizations such as the Institute for Justice that takes up these fights and they should be applauded for it. Most small business owners don’t have the means to take up these fights in court on their own.
The IJ is basing its main arguments that this is a violation of First Amendment rights, but that really isn’t the case here. Perhaps the IJ believes that this is the best argument to use in front of a judge in court and is therefore pursuing this avenue as a first resort.
The First Amendment says that Congress shall make no law… In this case, Congress isn’t making the law. It is a state law or regulation. It has almost nothing to do with Congress. I don’t believe the 14th Amendment or anything else overrides everything the Constitution says, unless we are talking about natural law.
It is better that this is a state law/ regulation and that it isn’t coming out of Washington DC. But there are still a lot of bad laws and regulations at the state and local levels. This happens to be one of them and it should be fought.
This could be considered a free speech issue, but it isn’t Congress imposing it. It is state government. But just as easily, we could say this is a property rights issue. It is an issue of voluntary association. It is an issue of oppressive regulations.
Ironically, most people believe in some government regulation for businesses. One of the most common arguments is that we need consumer protection. You will also hear that we need government to protect us from false advertising or misleading labels.
But in this case, it is the government that is mandating false advertising and misleading labels. This small business wants to label and sell its pasteurized skim milk as “pasteurized skim milk”. The Florida government wants her to mislead consumers and call it something that it isn’t.
The best form of regulation is the regulation that naturally occurs in a voluntary free market. Businesses that mislead consumers in a free market will not usually last long.
As we can see, government regulation does not usually protect consumers. It often does the opposite. In this case, it is just harming consumers by misleading them and by taking away products that they want to buy.