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INTERNATIONAL DAIRY FOODS ASS'N v. BOGGS
622 F.3d 628 (2010)
United States Court of Appeals, Sixth Circuit.
Argued: June 10, 2010.
Prophylactic bans on commercial speech are evaluated under a four-part analysis first set forth in Central Hudson Gas & Electric Corp. v. Public Service Commission, 447 U.S. 557, 100 S.Ct. 2343, 65 L.Ed.2d 341 (1980). Pursuant to that analysis, a court first determines whether the speech concerns unlawful activity or is misleading. Id. at 566, 100 S.Ct. 2343. If a court finds in the affirmative on either prong, the speech is not entitled to First Amendment protection, and the analysis ends. Id. But if the court finds that the speech is entitled to First Amendment protection, it then makes three additional inquiries: (1) whether the asserted governmental interest is substantial, (2) whether the regulation directly advances that interest, and (3) whether the regulation is more extensive than necessary to serve the asserted interest. Id. 1. Whether the Processors' composition claims are inherently misleading The district court in the present case concluded that the composition claims were misleading and therefore not entitled to any First Amendment protection. "Misleading advertising may be prohibited entirely," including where the speech is "inherently likely to deceive or where the record indicates that a particular form or method of advertising has in fact been deceptive." In re R.M.J., 455 U.S. at 202-03, 102 S.Ct. 929. Where speech is only potentially misleading, however, the Central Hudson framework applies. Id. at 203, 102 S.Ct. 929. Under these circumstances, "the preferred remedy is more disclosure, rather than less." Bates v. State Bar of Ariz., 433 U.S. 350, 374-75, 97 S.Ct. 2691, 53 L.Ed.2d 810 (1977) (striking down a ban on price advertising for "routine" legal services in part because "it seems peculiar to deny the consumer, on the ground that the information is incomplete, at least some of the relevant information needed to reach an informed decision"). The district court held that the composition claims were inherently misleading because "they imply a compositional difference between those products that are produced with rb[ST] and those that are not," in contravention of the FDA's finding that there is no measurable compositional difference between the two. This conclusion is belied by the record, however, which shows that, contrary to the district court's assertion, a compositional difference does exist between milk from untreated cows and conventional milk ("conventional milk," as used throughout this opinion, refers to milk from cows treated with rbST). As detailed by the amici parties seeking to strike down the Rule, the use of rbST in milk production has been shown to elevate the levels of insulin-like growth factor 1 (IGF-1), a naturally-occurring hormone that in high levels is linked to several types of cancers, among other things. The amici also point to certain studies indicating that rbST use induces an unnatural period of milk production during a cow's "negative energy phase." According to these studies, milk produced during this
stage is considered to be low quality due to its increased fat content and its decreased level of proteins. The amici further note that milk from treated cows contains higher somatic cell counts, which makes the milk turn sour more quickly and is another indicator of poor milk quality. This evidence precludes us from agreeing with the district court's conclusion that there is no compositional difference between the two types of milk. In addition, and more salient to the regulation of composition claims like "rbST free," the failure to discover rbST in conventional milk is not necessarily because the artificial hormone is absent in such milk, but rather because scientists have been unable to perfect a test to detect it. As recognized by the State's brief in the district court, "given existing technology, it is currently impossible to test milk to determine whether the hormones present are natural hormones or recombinant hormones (such as rbST)." The State further conceded this point at oral argument, acknowledging that conventional milk "could" contain rbST, but that no test has been able to verify if this is in fact the case. This uncertainty is also implicit in the FDA's 1994 Guidance. There, the agency stated that "there [i]s no significant difference between milk from treated and untreated cows" because "[t]here is currently no way to differentiate analytically between naturally occurring bST and [r]bST in milk." 59 Fed.Reg. 6279, 6280 (emphasis added). The FDA thus appears to have left room for the fact that some compositional difference between the two types of milk may exist, leaving open the possibility that one day a method might exist to detect whether rbST is in fact present in conventional milk. Taken collectively, this evidence points to two distinct types of milk. On the one hand is milk from cows never given rbST, which in turn cannot produce milk that has rbST as a matter of fact. The composition claim "rbST free" is therefore demonstrably true as applied to this milk. On the other hand, milk from cows treated with rbST might contain the artificial hormone, although there is currently no way to determine whether that is the case. But even if rbST is not present in conventional milk, there is still evidence that it contains increased levels of IGF-1 and might be compositionally of a lesser quality. A compositional difference thus exists between the two types of milk, although the extent of this difference—namely whether conventional milk does in fact contain rbST—is still very much an open question. As such, the composition claim "rbST free" at best informs consumers of a meaningful distinction between conventional and other types of milk and at worst potentially misleads them into believing that a compositionally distinct milk adversely affects their health. Under these circumstances, we conclude that composition claims like "rbST free" are not inherently misleading. We must therefore apply the remaining three Central Hudson factors to assess the constitutionality of the Rule's prophylactic ban on the composition claims "rbST free" and "artificial hormone free."
* The Honorable Amul R. Thapar, United States District Judge for the Eastern District of Kentucky, sitting by designation.
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