Ocheesee Creamery LLC v. Adam H. Putnam
851 F.3d 1228
11th Cir.2017Background
- Ocheesee Creamery produced and sold all‑natural skim milk (byproduct of skimming cream) in Florida without adding vitamin A, which is fat‑soluble and removed during skimming.
- Florida’s regulatory scheme (adopting the Grade A PMO) requires replacement of vitamins A and D in reduced‑fat/nonfat dairy to qualify as Grade “A”; only Grade A milk may be sold at retail, but imitation‑milk permits are available for some non‑Grade A products.
- In 2012 the State issued stop‑sale orders for the Creamery’s unfortified skim milk; the State later offered to allow retail sale under an imitation‑milk permit if the product was labeled without using the words “skim milk.”
- Creamery sued, claiming the State’s prohibition on calling its product “skim milk” violated the First Amendment; district court granted summary judgment to the State, finding the term inherently misleading and upholding the restriction under Central Hudson.
- Eleventh Circuit reviewed de novo, held the term “skim milk” as used by the Creamery is not inherently misleading, and found the State failed to meet its burden under Central Hudson (particularly the fit/overbreadth prong), vacating and remanding.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether restriction is regulation of unlawful conduct (thus unprotected) | Creamery: sale of its unfortified skim milk is lawful (imitation‑milk permit available); speech is targeted, not conduct | State: non‑Grade A milk without vitamin A replacement cannot be sold as skim milk; banning term regulates speech incidental to unlawful sales | Held: Speech, not conduct; because imitation permit is available, restriction is subject to Central Hudson scrutiny |
| Whether term “skim milk” is inherently misleading (threshold) | Creamery: “skim milk” is an objective, verifiable description (milk with cream skimmed off); consumers understand the term; not inherently misleading | State: Under its regulatory definition, skim milk implies vitamin replenishment; consumers expect same vitamin content as whole milk | Held: Not inherently misleading; state must produce evidence that its definitional meaning is the adopted public meaning, which it did not do |
| Whether the restriction satisfies Central Hudson intermediate scrutiny (fit/not more extensive than necessary) | Creamery: less‑restrictive alternatives exist (disclaimers, additional disclosure) that would prevent deception without banning the term | State: Has substantial interest (preventing deception, nutritional standards); banning term advances that interest | Held: Although interest is substantial, State failed to show its ban was not more extensive than necessary; no evidence on the required fit prong; restriction invalid as applied |
| Remedy / outcome | Creamery: seeks as‑applied relief permitting truthful use of “skim milk” with disclosures | State: defended labeling requirement and alternative labeling proposals | Held: Vacated district court judgment for State; remanded for further proceedings consistent with opinion |
Key Cases Cited
- Central Hudson Gas & Electric Corp. v. Public Service Comm'n, 447 U.S. 557 (1980) (establishes threshold + three‑prong test for commercial speech regulation)
- Virginia State Bd. of Pharmacy v. Virginia Consumer Council, 425 U.S. 748 (1976) (commercial speech entitled to First Amendment protection)
- Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626 (1985) (states may require disclosures to prevent deception)
- Peel v. Att’y Registration & Disciplinary Comm’n, 496 U.S. 91 (1990) (truthful factual statements are not inherently misleading absent evidence of deception)
- Edenfield v. Fane, 507 U.S. 761 (1993) (government bears burden to justify restrictions on commercial speech)
- Ibanez v. Florida Dep’t of Bus. & Prof’l Regulation, 512 U.S. 136 (1994) (truthful professional credentials not misleading)
- Abramson v. Gonzalez, 949 F.2d 1567 (11th Cir. 1992) (state licensing definitions do not automatically render truthful descriptions misleading)
- Mason v. Florida Bar, 208 F.3d 952 (11th Cir. 2000) (commercial speech standard and protections)
- Borgner v. Brooks, 284 F.3d 1204 (11th Cir. 2002) (inherently misleading commercial speech may be regulated)