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International Dairy Foods Assoc. fights against ODA’s labeling law

By JANE HOUIN
Ohio Correspondent

COLUMBUS, Ohio — Last week, the International Dairy Foods Assoc. (IDFA) filed suit against the State of Ohio challenging its new regulations on the labeling of dairy products from cows that haven’t been treated with artificial growth hormones.

IFDA’s suit claims the Ohio rule interferes with the First Amendment right of its members to communicate truthful information to Ohioans and with interstate commerce. The complaint is the result of a controversial dairy product labeling regulation that went into effect on May 22 with a 120-day implementation period.

IDFA members are manufacturers of dairy products, including milk, cheese and ice cream. They want to be able to tell consumers which products come from cows that have not been treated with the artificial growth hormone, commonly referred to as rbGH or rbST. IDFA’s lawsuit said Ohio’s rule - which dictates not only the words, but the font, style, case, color and even size of the language that must be used on labels - poses unconstitutional restrictions.

“The practical effect of the Ohio rule silences manufacturers of dairy products and prevents Ohioans from knowing whether artificial growth hormones have been used in dairy products,” said Peggy Armstrong, IDFA communications director. Armstrong said Ohio’s labeling regulation is so cumbersome, especially for national and regional dairy manufacturers, that many will be forced to simply drop information about artificial growth hormones on packages altogether.

“Ohio consumers are entitled to accurate and complete information when making decisions about the food products they buy,” Boggs said. “We thoughtfully reviewed all of the comments we received about the proposed rule. We believe that we have developed the proper balance between assuring that consumers receive the information they need and deserve, while imposing the least possible burden on product processors necessary to protect consumer interests.”

The original ruling was designed to provide guidelines for the language permitted on milk and milk product labeling as well as to establish a verification process for marketing organizations and labeling entities.

“After months of input from consumers and industry stakeholders this rule was developed to give guidance to the dairy industry to prevent mislabeled products,” Boggs said of the original rule. “Our No. 1 goal is to provide consumers with safe and healthy foods, and to offer clear and consistent information about the food consumers purchase. Ohio’s dairy labels will offer consumers information about how their food is
produced.”

IDFA: Ohio rule goes too far

IDFA said Ohio’s 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.

Many manufacturers, like Steve Schmid of Smith Dairy in Orrville, Ohio, are opposed to the ruling because of the implications for their businesses. In a declaration to the State of Ohio, Schmid said complying with Ohio’s rule by the September compliance date would cost his company more than $6,250 per label and an additional $32,000 in current inventory would become obsolete.

But Ohio manufacturer’s aren’t the only ones affected. The ruling affects national companies as well. William Luth of cheese processor Tillamook said the Ohio regulation prevents Tillamook from selling nationally-branded products in Ohio unless the company changes all of its existing labels. Luth said the company cannot absorb these costs and may be forced to drop the “no use of rbST” claims on its labels, something consumers have repeatedly asked for.

Similarly, a Ben & Jerry’s representative said the cost to change its labels would exceed $250,000, yet that is not the main reason the company filed a similar declaration against the State of Ohio. Rob Michalak said compliance with the Ohio rule would require them to overhaul the company’s entire distribution system to ensure Ohio received products with special labels, creating significant new and ongoing costs and putting the company at a competition disadvantage to those who only distribute in Ohio.

The Ohio regulation is more prescriptive than most other states in that Ohio requires that the disclaimer language suggested by the FDA be placed on a package immediately following a claim that the milk is from cows not treated with artificial growth hormones.
Other states allow the processor or manufacturer to decide where to place the disclaimer.

The new Ohio regulation also specify the disclaimer must read, “The Food and Drug Administration says there’s no significant difference between milk produced by cows given the artificial growth hormone and cows that aren’t.”

“While some would have preferred that we not include the requirement that rbST production claims also carry with them information about the FDA determination, we believe that it would be misleading to give consumers only one of two critically interconnected pieces of information,” Boggs said.

The regulations also dictate that the font, style, case and color be the same for the disclaimer as the claim itself and include typeface size restrictions. Other states do not mandate such stringent requirements.

“Requiring the use of one label in Ohio when another is used in virtually every other part of the country imposes undue burden and costs on dairy product companies and this comes at a time when the state and national economies are under stress,” Armstrong said. The legal action by IDFA asks for an immediate injunction.
“A growing number of consumers are asking for information about whether the dairy products they purchase are made with milk from cows not treated with artificial growth hormones,” Armstrong said. “Under Ohio’s excessive rule, Ohioans will be left in the dark, which is exactly what proponents of this law are hoping to achieve.”

Few use artificial hormones
According to a recent USDA report, only 15 percent of dairy farmers use artificial growth hormones representing less than 18 percent of cows. In fact, consumer preferences have changed and there is a growing demand for dairy products made from milk produced from cows not treated with artificial growth hormones.

In a survey reported by Consumer Reports National Research Center last year, 76 percent of respondents said they were very concerned or somewhat concerned with dairy cows given artificial growth hormones and 88 percent agreed that milk from cows not treated with artificial growth hormone should be labeled as such. Responding to this interest, a number of national and regional retailers and manufacturers are providing dairy products only made with milk from cows not treated with artificial growth hormones.

7/10/2008