92 F.3d 67 (2nd Cir. 1996), 876, International Dairy Foods Ass'n v. Amestoy

Docket Nº:876, Docket 95-7819.
Citation:92 F.3d 67
Party Name:INTERNATIONAL DAIRY FOODS ASSOCIATION; Milk Industry Foundation (MIF); International Ice Cream Association; National Cheese Institute; Grocery Manufacturers of America, Inc. and National Food Processors Association, Plaintiffs-Appellants, v. Jeffrey L. AMESTOY, as Attorney General of the State of Vermont and Leon C. Graves, Commissioner of Agricult
Case Date:August 08, 1996
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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92 F.3d 67 (2nd Cir. 1996)


Foundation (MIF); International Ice Cream Association;

National Cheese Institute; Grocery Manufacturers of

America, Inc. and National Food Processors Association,



Jeffrey L. AMESTOY, as Attorney General of the State of

Vermont and Leon C. Graves, Commissioner of

Agriculture, Food and Markets of the

State of Vermont, Defendants-Appellees.

No. 876, Docket 95-7819.

United States Court of Appeals, Second Circuit

August 8, 1996

Argued Nov. 2, 1995.

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[Copyrighted Material Omitted]

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Steven J. Rosenbaum, Covington & Burling, Washington, DC (Sarah E. Taylor, Jonathan R. Galst, Covington & Burling, Washington, DC, on the brief), for plaintiffs-appellants.

Eileen I. Elliott, Assistant Attorney General, Montpelier, Vermont (David M. Rocchio, Assistant Attorney General, Montpelier, Vermont, on the brief), for defendants-appellees.

Before ALTIMARI, McLAUGHLIN and LEVAL, Circuit Judges.

ALTIMARI, Circuit Judge:

Plaintiffs-appellants International Dairy Foods Association, Milk Industry Foundation (MIF), International Ice Cream Association, National Cheese Institute, Grocery Manufacturers of America, Inc. and National Food Processors Association (collectively "appellants" or "dairy 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 identify products which were, or might have been, derived from dairy cows treated with a synthetic growth hormone used to increase milk production. The dairy manufacturers alleged that the statute violated the United States Constitution's First Amendment and Commerce Clause.

Because we find that the district court abused its discretion in failing to grant preliminary injunctive relief to the dairy manufacturers on First Amendment grounds, we reverse and remand.


The factual background to this case is capably described in the district court's opinion, see 898 F.Supp. 246 (D.Vt.1995). We therefore summarize only those facts necessary to an understanding of our disposition.

In 1993, the federal Food and Drug Administration ("FDA") approved the use of recombinant Bovine Somatotropin ("rBST") (also known as recombinant Bovine Growth Hormone ("rGBH")), a synthetic growth hormone that increases milk production by cows. It is undisputed that the dairy products derived from herds treated with rBST are indistinguishable from products derived from untreated herds; consequently, the FDA declined to require the labeling of products derived from cows receiving the supplemental hormone.

In April 1994, defendant-appellee the State of Vermont ("Vermont") enacted a statute requiring that "[i]f 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." Vt. Stat. Ann. tit. 6, § 2754(c). The State of Vermont's Commissioner of Agriculture ("Commissioner") subsequently promulgated regulations giving those dairy manufacturers who use rBST four labeling options, among them

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the posting of a sign to the following effect in any store selling dairy products:

rBST Information




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)

Adopted Rules (rBST Notification and Labeling Regulations Relating to Milk and Milk Products) of Vermont Dep't of Agriculture, Food and Markets, § 3.1b ("Vt.Regs."). Failure to comply with the statute and companion regulations subjects manufacturers to civil, see Vt. Stat. Ann. tit. 9, ch. 63 (Consumer Fraud Act), § 2451 et seq. [Add. to Blue Br. 12-13], as well as criminal, see Vt. Stat. Ann. tit. 6, ch. 151 (Supervision, Inspection and Licensing of Dairy Operations), § 2671 et seq., penalties.

Appellants filed suit in April 1994, asserting that the statute was unconstitutional. In June 1995, the dairy manufacturers moved for preliminary injunctive relief, seeking to enjoin enforcement of the statute. The dairy manufacturers alleged that the Vermont statute (1) infringed their protected rights under the First Amendment to the Constitution and (2) violated the Constitution's Commerce Clause, U.S. Const., Art. 1, § 8. Following an extensive hearing, the United States District Court for the District of Vermont (Murtha, C.J.), denied appellants' motion. See 898 F.Supp. at 254. The dairy manufacturers now appeal.

Because we find that the dairy manufacturers are entitled to an injunction on First Amendment grounds, we do not reach their claims made pursuant to the Commerce Clause.


Generally, preliminary injunctive relief is appropriate when the movant shows "(a) irreparable harm and (b) either (1) likelihood of success on the merits or (2) sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly toward the party requesting the preliminary relief." Jackson Dairy, Inc. v. H.P. Hood & Sons, Inc., 596 F.2d 70, 72 (2d Cir.1979) (per curiam); see also Union Carbide Agr. Prods. Co. v. Costle, 632 F.2d 1014, 1017 (2d Cir.1980) ("Before a preliminary injunction will be granted in this Circuit, it must pass one of two tests. Both require a showing of irreparable harm."), cert. denied, 450 U.S. 996, 101 S.Ct. 1698, 68 L.Ed.2d 196 (1981). However, because the injunction at issue stays "government action taken in the public interest pursuant to a statutory ... scheme," this Court has determined that the movant must satisfy the more rigorous "likelihood of success prong." Able v. United States, 44 F.3d 128, 131-32 (2d Cir.1995); see Plaza Health Laboratories, Inc. v. Perales, 878 F.2d 577, 580 (2d Cir.1989).

We review the district court's denial of a preliminary injunction for an abuse of discretion, see Coca-Cola Co. v. Tropicana Prods., Inc., 690 F.2d 312, 315 (2d Cir.1982), and will reverse the district court only if it relied on clearly erroneous findings of fact, misapprehended the law, or erred in formulating the injunction, see Blum v. Schlegel, 18 F.3d 1005, 1010 (2d Cir.1994).

1. Irreparable Harm

Focusing principally on the economic impact of the labeling regulation, the district court found that appellants had not demonstrated irreparable harm to any right protected

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by the First Amendment. We disagree.

Irreparable harm is "injury for which a monetary award cannot be adequate compensation." See Jackson Dairy, Inc., 596 F.2d at 72. It is established that "[t]he loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury." Elrod v. Burns, 427 U.S. 347, 373, 96 S.Ct. 2673, 2690, 49 L.Ed.2d 547 (1976); see Paulsen v. County of Nassau, 925 F.2d 65, 68 (2d Cir.1991) ("[s]ince prohibitions on leafletting and dissemination of religious views contravene core First Amendment values" irreparable harm necessarily established); Deeper Life Christian Fellowship, Inc. v. Board of Ed., 852 F.2d 676, 679 (2d Cir.1988) (depriving church of location for religious services for substantial period of time constituted irreparable harm). Because the statute at issue requires appellants to make an involuntary statement whenever they offer their products for sale, we find that the statute causes the dairy manufacturers irreparable harm.

Quoting Hohe v. Casey, 868 F.2d 69, 72-73 (3d Cir.), cert. denied, 493 U.S. 848, 110 S.Ct. 144, 107 L.Ed.2d 102 (1989), the district court rejected this claim, stating that:

"the assertion of First Amendment rights does not automatically require a finding of irreparable injury, thus entitling a plaintiff to a preliminary injunction if he shows a likelihood of success on the merits." 868 F.2d at 72-73.

Ordinarily, it is the purposeful suppression of speech which constitutes irreparable harm. Compliance with the Vermont Labeling Law does not prohibit the plaintiffs from disseminating a message. Instead, it requires the plaintiffs to truthfully disclose the method used in producing their product. Under these circumstances, the Court does not find that the plaintiffs' assertion of a First Amendment violation leads ineluctably to the conclusion that they will suffer irreparable harm.

898 F.Supp. at 251-52 (citations omitted).

We conclude, however, that the manufacturers have carried their burden of establishing irreparable harm. The wrong done by the labeling law to the dairy manufacturers' constitutional right not to speak is a serious one that was not given proper weight by the district court. See Wooley v. Maynard, 430 U.S. 705, 714, 97 S.Ct. 1428, 1435, 51 L.Ed.2d 752 (1977) ("We begin with the proposition that the right of freedom of thought protected by the First Amendment against state action includes both the right to speak freely and the right to refrain from speaking at all."); West Virginia State Bd. of Ed. v. Barnette, 319 U.S. 624, 633, 63 S.Ct. 1178, 1183, 87 L.Ed. 1628 (1943) ("involuntary affirmation could be commanded only on even more immediate and urgent grounds than silence"); see also Harper & Row, Publishers, Inc. v. Nation Enter., 471 U.S. 539, 559, 105 S.Ct. 2218, 2230, 85 L.Ed.2d 588 (1985) (recognizing, along with freedom...

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