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Ohio will withdraw dairy labeling rule

Thursday, November 03rd, 2011

ODA agrees to rescind rule that prohibits "hormone free" claims on dairy products

The Ohio Department of Agriculture (ODA) has agreed to withdraw the controversial dairy labeling rule that restricts the use of "hormone free" language on dairy labels.  The agreement by ODA is in settlement of a federal lawsuit initiated against the state of Ohio over three years ago by the International Dairy Foods Association  and Organic Trade Association.  A federal appeals court ruled in favor of the associations in 2010, agreeing that Ohio's dairy product labeling rule violated milk producers' constitutional rights to conduct truthful commercial speech.  After the win on appeal, the associations filed a claim seeking reimbursement from Ohio for the $1.3 million in legal fees required to challenge the rule.  Apparently, the associations have agreed to drop that claim in exchange for Ohio's withdrawal of the rule.  The ODA has not yet issued a formal statement on the settlement or officially rescinded the rule.

A retraction of the rule by ODA will impact labeling practices in the dairy industry in several ways.  The current rule prohibits milk composition claims such as “No Hormones”, “Hormone Free”, “rbST Free”, “rbGH Free” or “No Artificial Hormones" but allows statements that the dairy product derives from cows who did not receive artificial hormones.    Absent the rule,  companies will be able to make "hormone free" milk composition claims without the risk of an ODA enforcement action.   Also, a company will not be required to state that the FDA has not confirmed a difference between "hormone free" products and other dairy products where the company permissibly states that the milk is from cows not receiving artificial hormones.  Additionally, withdrawing the rule removes provisions requiring those who claim that a dairy product is "hormone free" to be prepared to verify the claim via producer signed affidavits, farm weight tickets and plant audit trails.

The Ohio dairy product labeling rule is contained in Ohio Admininstrative Code § 901:11-8-01.  For an explanation of the court of appeals decision on Ohio's dairy labeling rule, see our earlier post.  

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