Why the First Amendment Protects a New England Dairy's Right to Use a Milk Label Proclaiming Its Product To Be Growth-Hormone-Free

By D. MARK JACKSON

Thursday, Aug. 14, 2003

On July 3, the multinational chemical company Monsanto sued a small Maine dairy. In response to consumer concern, Oakhurst Dairy had placed a label on its milk stating, "Our Farmers' Pledge: No Artificial Growth Hormones." Monsanto, however, contends that this label is hurting its business.

Monsanto makes Posilac, the leading recombinant bovine growth hormone (rbGH). Posilac is used in about one third of the U.S.'s nine million dairy cows. Monsanto markets its product as boosting a cow's milk production by as much as fifteen percent and claims that its growth hormone is safe.

In its suit, Monsanto has brought claims of unfair competition, unfair business practices, and interference with advantageous business relationships. Monsanto contends that its relationship with dairy producers who use growth hormones has been damaged by Oakhurst's labels - which, according to Monsanto, mislead customers into thinking that something is wrong with milk produced with hormones.

Some New England farmers believe Monsanto has filed the suit to intimidate those who, responding to changing consumer preferences, choose not to use its hormones. Fortunately, however, any attempt at intimidation that might be occurring, is probably doomed: The courts are likely to rule that the First Amendment protects Oakhurst's right to advertise truthfully.

The Monsanto suit should concern anyone who believes in free speech, consumer choice, or the free market - which is pretty much everyone. Oakhurst has filed a motion to dismiss the case. The federal court should quickly grant it.

The Monsanto Suit Undermines First Amendment Rights

Under the law, milk producers have a right not to disclose whether they use growth hormones. For example, the Second Circuit Court of Appeals, in one such case, struck down, as a First Amendment violation, a Vermont Law requiring them to do so. It concluded that the law, under the standards applicable to a government regulation of commercial speech, could not stand.

The Second Circuit reasoned that since science had not proven that artificial growth hormones were dangerous, Vermont's law was not based on a "substantial government interest" of promoting health and safety. Instead, it was grounded on the less important basis of "consumer interest" and "the public's 'right to know.'" These interests, the Second Circuit held, were not enough to overcome the milk producers' free speech rights.

But what about the separate question - raised by Monsanto v. Oakhurst - whether milk producers have a right to disclose whether they use growth hormones, if they so choose?

To begin, the First Amendment protects truthful statements. And Oakhurst's statement is truthful: Its milk is hormone-free. And there is a strong argument to be made that, as new and controversial ingredients enter our food supply, the right to make truthful statements must include the freedom to advertise what ingredients a product does not contain.

In court, that should probably be the end of the matter: Oakhurst told the truth, and had the right to do so. But Monsanto contends that Oakhurst's statement, while technically true, is misleading - implying that something is wrong with milk that is not hormone-free.

Oakhurst counters, however, that it is agnostic: It "does not take a position that milk from cows supplemented with [artificial growth hormones] is either safe or unsafe for human consumption."

Monsanto may try to draw support from the fact that there is a relevant federal regulation. But, in fact, the presence of the regulation tends to undermine its case against Oakhurst.

The regulation recommends, but does not require, that labels stating that milk is produced without hormones should also include a "contextual statement" to the effect that "no significant difference has been shown between milk derived from [hormone]-treated and non-[hormone] treated cows."

Obviously, Oakhurst is in compliance with this regulation; it chose not to take the government's recommendation, and the government chose not to make that recommendation mandatory. Oakhurst can argue that compliance is sufficient, and, indeed, that the federal regulation preempts any contrary state law that would make labeling not just recommended, but mandatory.

For all these reasons, the suit against Oakhurst should be dismissed.

Artificial Growth Hormones, while FDA-Approved, Raise Safety Concerns

To understand the backdrop for Monsanto v. Oakhurst, and its larger significance, it is necessary to review a bit of recent history.

In 1993, the FDA approved the use of Monsanto's artificial growth hormone, determining that "milk and meat from . . . treated cows is safe" for human consumption. The National Dairy Council, an industry group, similarly states that Monsanto's product has been "repeatedly proven safe."

Since the inception of growth hormones, however, critics have warned that milk from treated cows is chemically and nutritionally different from natural milk and might cause cancer in humans and premature puberty in children. While not yet proven, these concerns nevertheless are legitimate: The Consumer Policy Institute/Consumers Union has recently analyzed the available studies and concluded that that the milk "from treated cows differs from milk derived from untreated control cows" and that "[u]nanswered questions do exist about certain safety issues associated with milk" from treated cows.

Most importantly, long-term research has yet to be done. Based on these concerns, Monsanto's artificial growth hormone is banned throughout the industrialized world, with the exception of the U.S., Mexico, and Brazil.

Food Safety and the Precautionary Principle

When consumers lack access to long-term studies on a new product - as is the case with milk from hormone-treated cows - they are left with two responses. The first is to use the product, considering it presumptively safe because the dangers remain theoretical and unproven. The second response is to refrain from using the product, considering it presumptively dangerous because its long-term safety is also theoretical and unproven.

This second response invokes the so-called precautionary principle, according to which precautionary measures should be taken when new technology places human health at risk, even if cause-and-effect relationships are not yet established. The principle calls on the proponents of new technology to prove that the new technology is safe - rather than calling on skeptics to prove that is unsafe.

Faced with new bioengineered food, some consumers may wish to be cautious about what they eat, even if the food has not been shown to cause any health problems. These consumers simply wish to wait until more is known scientifically. In order to make this informed choice, consumers must have the opportunity to know which foods are free from new high-tech ingredients.

Why Government Approval, As History Shows, Is No Safety Guarantee

Given government and industry's poor record of protecting consumers from unsafe products, exercising the precautionary principle is a reasonable personal choice. Apparently safe products have been proven - over time, and upon further scientific study - to be exceedingly dangerous.

The classic example is asbestos, the "magic" heat resistant component once used in countless products. The long latency period of the lung diseases that resulted from asbestos exposure hid the true dangers of the product from generations of consumers and workers.

Another example is the drug diethylstilbestrol (DES), once thought to be safe and effective for preventing miscarriages. DES came into use in 1947. It was not banned until 1971, after it had been shown to cause severe birth defects in the granddaughters of the mothers who originally ingested the drug.

Part of the explanation for these tragic cases, is that products can be approved for consumer use long before the long-term health effects are known.

Another part of the explanation is that certain risks are not apparent until a product is used by the wider public. A 1990 study by Congress' General Accounting Office (GAO) found that, even after approval of a prescription drug, "many additional risks may surface once the general population is exposed to the drug."

Indeed, the GAO found that of 198 drugs approved by the FDA between 1976 and 1985 for which information was available, over half had "serious" post-approval risks. "Serious" risks were those that led to hospitalization, severe or permanent disability, or death.

In sum, it's plain that the FDA approves products with potential long-term dangers, and with unknown risks for the wider public. In light of this fact, consumers have a strong interest in knowing what exactly it is that they are buying.

Under the First Amendment, the government may not be able to require labels on products unless specific dangers are proven. Conversely, however, under the First Amendment, producers must be able to tell the truth about their own products even when dangers are not yet proven, but only suspected.

The Oakhurst Case Will Not Be the Last Challenge by the Biotech Industry

As concern about biotech foods grows, will there be more cases like Monsanto's? Almost certainly.

McDonald's recently announced that it will begin to use beef from cattle raised without antibiotics. Given the rising consumer concerns about antibiotics in the food supply, McDonald's will certainly wish to publicize its new policy.

Similarly, U.S. producers of genetically modified foods have been fighting a bitter dispute with the European Union. After heavy pressure from the Bush administration, including a suit filed with the World Trade Organization, the European Parliament recently ended a ban on such foods, with the requirement that the foods be labeled.

At stake in these labeling cases, is the fundamental free speech interest in allowing the truth to be told. Agribusiness firms like Monsanto will continue heavy-handed efforts to stop labeling by small businesses, as lucrative markets are undermined by consumer skepticism. These efforts must be resisted. Only by protecting free speech rights can courts allow consumers to make their own choices in this increasingly complex world.


D. Mark Jackson is a lawyer with the U.S. Department of Labor in San Francisco. The opinions expressed in this article are those of the author, not of the U.S. Government. Mr. Jackson may be reached at dmjacks@hotmail.com.

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