International Dairy Foods Ass'n v. Amestoy, Civ. No. 2:94CV119.

Citation898 F. Supp. 246
Decision Date09 August 1995
Docket NumberCiv. No. 2:94CV119.
CourtUnited States District Courts. 2nd Circuit. District of Vermont
PartiesINTERNATIONAL DAIRY FOODS ASSOCIATION, et al. v. Jeffrey L. AMESTOY, et al.

Geoffrey W. Crawford, Burlington, VT and Steven J. Rosenbaum, Washington, DC, for plaintiffs.

Attorney Julie S. Brill, Vermont Attorney General's Office, Montpelier, VT, for defendants.

RULING ON RENEWED MOTION FOR PRELIMINARY INJUNCTION (paper 29)

MURTHA, Chief Judge.

I. Introduction

Vermont's Labeling Law, 6 V.S.A. § 2754 provides, inter alia, that "if rBST a recombinant bovine growth hormone has been used in the production of milk or a milk product for retail sale in this state, the retail milk or milk product shall be labeled as such." By bringing this suit, the plaintiffs seek to have this Court declare that 6 V.S.A. § 2754 is unconstitutional in that it violates the First Amendment, the Supremacy Clause and the Commerce Clause of the United States Constitution, in violation of their civil rights under 42 U.S.C. § 1983. See Complaint (paper 1) at para. 2.

Relying solely upon the alleged violation of the First Amendment and Commerce Clause of the United States Constitution, the plaintiffs have moved for a preliminary injunction which would prohibit the defendants from attempting to enforce 6 V.S.A. § 2754 and any rules and regulations promulgated thereunder. See Renewed Motion for Preliminary Injunction (paper 29) at 2.1 For the reasons set forth below, the Renewed Motion for a Preliminary Injunction is DENIED.

II. Background
A.

The record before the Court includes testimony presented at the hearing conducted on July 31 and August 1, 1995, as well as a vast amount of evidence presented in the form of affidavits and exhibits. Upon review of the present record and the testimony presented, the Court makes the following findings. See Fed.R.Civ.P. 65(a)(2) ("Any evidence received upon an application for a preliminary injunction which would be admissible upon the trial on the merits becomes part of the record on the trial and need not be repeated upon the trial.")

The plaintiffs, International Dairy Foods Association, Milk Industry Foundation, International Ice Cream Association, National Cheese Institute, Grocery Manufacturers of America, Inc. and the National Food Processors Association, are trade associations whose members process, manufacture, market and distribute dairy products in Vermont.

The defendants, Vermont Attorney General Jeffrey L. Amestoy and Vermont Commissioner of Agriculture, Food and Markets Leon Graves, are responsible for administration and enforcement of 6 V.S.A. § 2754.

Bovine somatotropin (hereinafter "BST") is a naturally occurring hormone in dairy cows. BST is a metabolic hormone that is released from the pituitary gland and which influences the amount of milk produced.

Recombinant bovine somatotropin ("rBST") is a version of BST produced in laboratories through recombinant DNA technology. rBST is injected into the bloodstream of a cow to supplement the amount of BST naturally produced. It stimulates lactation and boosts milk production in treated cows by increasing the efficiency with which supplemented cows convert feed into milk.

Before any animal drug can be distributed for commercial use in the United States, the drug sponsor must receive approval from the Food and Drug Administration (hereinafter "FDA"). See 21 U.S.C. § 360b. After extensive study, the FDA concluded that rBST has no appreciable effect on the composition of milk produced by treated cows, and that there are no human safety or health concerns associated with food products derived from cows treated with rBST. Moreover, rBST is orally inactive in cows and is biologically inactive in humans. Accordingly, there appears to be widespread agreement that the use of rBST presents no increased health risk to consumers.

In fact, because there are no BST receptors in the mammary glands which facilitate the transfer of BST from the blood into milk, only trace levels of BST appear in milk, whether or not animals are administered rBST. Therefore, no difference in the level of BST produced by treated or untreated cows can be detected using current technology.

On November 5, 1993, the FDA approved the commercial use of rBST by farmers. In addition, the FDA determined that it would not mandate the labeling of food products derived from cows injected with rBST. Nevertheless, recognizing consumer interest in having information about rBST, the FDA determined that it would permit voluntary labeling of what may eventually prove to be a smaller number of products derived from untreated cows.

In describing "Appropriate Labeling Statements," the FDA interim guidelines explain:

Because of the presence of natural bST in milk, no milk is "bST-free," and a "bST-free" labeling statement would be false. Also, FDA is concerned that the term "rbST free" may imply a compositional difference between milk from treated and untreated cows rather than a difference in the way the milk is produced. Instead, the concept would better be formulated as "from cows not treated with rbST" or in some other similar ways. However, even such a statement, which asserts that rbST has not been used in the production of the subject milk, has the potential to be misunderstood by consumers. Without proper context, such statements could be misleading. Such unqualified statements may imply that milk from untreated cows is safer or of higher quality than milk from treated cows. Such an implication would be false and misleading.
FDA believes such misleading implications could best be avoided by the use of accompanying information that puts the statement in proper context. Proper context could be achieved in a number of different ways. For example, accompanying the statement "from cows not treated with rbST" with the statement that "No significant difference has been shown between milk derived from rbST-treated and non-rbST-treated cows" would put the claim in proper context.

59 Fed.Reg. at 6280.

The defendants assert that the FDA approved the use of rBST, even though the Agency recognized a slight increase in the incidence of mastitis in injected cows. In addition, the defendants have demonstrated the existence of consumer concern about the use of rBST. However, the defendants admit that "consumers cannot distinguish rBST-derived milk from traditionally-produced milk" because "there is no sensory difference between the two products." Defendants' Proposed Findings of Fact (paper 63) at para. 67. Moreover, they admit that "milk from cows injected with rBST does not taste better or stay fresher longer; it is neither more nutritious nor, under current market conditions, less expensive." Id. at para. 68.

On April 13, 1994, Vermont Governor Howard Dean signed into law 6 V.S.A. § 2754. Section 2754 requires the labeling of milk and milk products offered for retail sale in Vermont and made with milk from cows treated with rBST. In pertinent part, § 2754(c) provides: "If rBST has been used in the production of milk or a milk product for retail sale in this state, the retail milk or milk product shall be labeled as such."

The State does not claim that health or safety concerns prompted the passage of the Vermont Labeling Law. Instead, it bases its justification for mandatory labeling not otherwise required by the FDA on strong consumer interest and the public's "right to know" whether a particular dairy product contains milk produced by cows given rBST.

Section 2754(d) authorizes Vermont's Commissioner of Agriculture to adopt rules to implement the labeling law. On June 14, 1995, the Commissioner of Agriculture filed implementation rules. The labeling requirement takes effect on September 12, 1995, with certain disclosure requirements effective on August 12, 1995. The law is currently due to sunset on June 30, 1997, so that the legislature can reexamine and evaluate the labeling scheme.

The rules allow for shelf-labeling of milk derived from rBST-treated cows through the use of blue shelf labels, blue stickers, or explanatory signs placed in retail establishments. It is anticipated that larger supermarkets will use a combination of shelf labels and blue stickers. The shelf labels are transparent blue overlays designed to snap into place over the existing unit price information. The blue stickers are round blue dots which may be placed directly on items that are physically difficult to locate or are sold in the deli department. These labels and sticker contain no text; however, they refer to a sign which the State will provide at no cost to retailers.

The sign, which will be placed at each appropriate dairy or freezer case, explains:

rBST INFORMATION
THE PRODUCTS IN THIS CASE THAT CONTAIN OR MAY CONTAIN MILK FROM rBST-TREATED COWS EITHER (1) STATE ON THE PACKAGE THAT rBST HAS BEEN OR MAY HAVE BEEN USED, OR (2) ARE IDENTIFIED BY A BLUE SHELF LABEL LIKE THIS

sample label

OR (3) A BLUE STICKER ON THE PACKAGE LIKE THIS.

sample dot

The United States Food and Drug Administration has determined that there is no significant difference between milk from treated and untreated cows. It is the law of Vermont that products made from the milk of rBST-treated cows be labeled to help consumers make informed shopping decisions. (6 V.S.A. Section 2754) emphasis in original.

Plaintiff's Exhibit 9.

Thus, while tracking some of the FDA's suggested language, the Vermont label is actually the converse of the labeling suggested by the FDA in its interim guidelines: It provides notification that a product is derived from a rBST-treated cow. The State anticipates that most smaller retailers, convenience stores and gifts shops which sell few dairy products will use explanatory signs. These signs contain the same language as the "rBST INFORMATION" signs, except that they provide space to list products.

Therefore, Vermont's labeling law does not require any manufacturer to change any...

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4 cases
  • International Dairy Foods Ass'n v. Amestoy
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
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    ...manufacturers") appeal from a decision of the district court (Murtha, C.J.), denying their motion for a preliminary injunction. 898 F.Supp. 246 (D.Vt.1995). The dairy manufacturers challenged the constitutionality of Vt. Stat. Ann. tit. 6, § 2754(c) which requires dairy manufacturers to ide......
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