There is another battle between the Institute for Justice
and a government agency over milk – something that is becoming more common. Government (state and federal) is
heavily involved in the milk industry and I have written about the government’s
war against raw milk before.
But this latest story doesn’t involve raw milk. It is pasteurized milk. This is a government war over words.
Mary Lou Wesselhoeft, owner of Ocheesee Creamery, received
an order two years ago from the Florida Department of Agriculture and Consumer
Services. As you can guess, this
department is not so much in the business of “consumer services”. The order stated that Wesselhoeft had
to stop selling pasteurized skim milk or stop calling it pasteurized skim milk.
The problem here is that the product that was being sold is
pasteurized skim milk, just as it was being labeled. But the government of Florida says that you can only call it
skim milk if it is artificially injected with Vitamin A. But the Ocheesee Creamery does not want
to inject anything in its skim milk and it wants to tell consumers what it is
In other words, the Florida government is encouraging the
false labeling of products. Since
Wesselhoeft doesn’t want to inject anything into her skim milk and she doesn’t
want to mislead consumers as to what she is selling (pasteurized skim milk),
she decided to stop selling her milk.
Again, this is the Florida Department of Agriculture and
Consumer Services causing this.
They are helping consumers by either misleading them or shutting down
products that are sought.
The Institute for Justice (IJ) has a National Food Freedom
Initiative and has taken up Ocheesee Creamery’s case. They are filing a lawsuit, arguing that this violates the
The First Amendment
vs. Bad Law
I think it is great that we have organizations such as the
Institute for Justice that takes up these fights and they should be applauded
for it. Most small business owners
don’t have the means to take up these fights in court on their own.
The IJ is basing its main arguments that this is a violation
of First Amendment rights, but that really isn’t the case here. Perhaps the IJ believes that this is
the best argument to use in front of a judge in court and is therefore pursuing
this avenue as a first resort.
The First Amendment says that Congress shall make no
law… In this case, Congress isn’t
making the law. It is a state law
or regulation. It has almost
nothing to do with Congress. I
don’t believe the 14th Amendment or anything else overrides
everything the Constitution says, unless we are talking about natural law.
It is better that this is a state law/ regulation and that
it isn’t coming out of Washington DC.
But there are still a lot of bad laws and regulations at the state and
local levels. This happens to be
one of them and it should be fought.
This could be considered a free speech issue, but it isn’t
Congress imposing it. It is state
government. But just as easily, we
could say this is a property rights issue. It is an issue of voluntary association. It is an issue of oppressive
Ironically, most people believe in some government
regulation for businesses. One of
the most common arguments is that we need consumer protection. You will also hear that we need
government to protect us from false advertising or misleading labels.
But in this case, it is the government that is mandating
false advertising and misleading labels.
This small business wants to label and sell its pasteurized skim milk as
“pasteurized skim milk”. The
Florida government wants her to mislead consumers and call it something that it
The best form of regulation is the regulation that naturally
occurs in a voluntary free market.
Businesses that mislead consumers in a free market will not usually last
As we can see, government regulation does not usually
protect consumers. It often does
the opposite. In this case, it is
just harming consumers by misleading them and by taking away products that they
want to buy.