Regulatory Necessity? Got Milk?


A "lawyer's stock in trade is words." That is an adaptation of an Abraham Lincoln quote that "a lawyers' time and advice are his stock in trade." I like the "words" quote better, but I struggle to find from whence it came. I suspect that I saw that printed somewhere in the past, but have been unable to attribute it. It is also possible that I have contrived that quote by mis-remembering the Lincoln quote. The mind plays tricks as we age.

And lawyers do like to parse words. Perhaps the most famous example is the explanation of William Jefferson Clinton that "It depends on what the meaning of the word 'is' is." Mitch Glazier said that "There either is or is not," waxing eloquently, but apparently ignoring the President's subtle or hyper-subtle distinction on the vast (apparently) array of potential meanings for "is." 

The power of words and the burden of regulation recently returned to mind when I read of a couple in trouble for selling preserved produce. Fox News reported that two retired Texans began preserving vegetables using a process called "pickling." Eating Well says "you can pickle pretty much any veggie, not just cucumbers: tomatillos, carrots, okra, beets, peppers, turnips, avocado." In fairness, they had me right up to that "avocado" comment.  

But, the Texas Department of State Health Services told these retirees that they had to stop. Now there is litigation as the couple sues the state over its' "definition of a pickle." See, Texas "defines a pickle as 'a cucumber preserved in vinegar, brine, or similar solution, and excluding all other pickled vegetables.” So, anyone can "sell homemade pickles" in Texas, but "to sell anything else pickled, a seller must become a licensed food manufacturer." Perhaps here it depends more on what the meaning of the word "pickle" is.  

The regulation is said to have evolved from various instances of food poisoning, leading to the state precluding home-canners from selling any food except "home baked goods and pickles of the cucumber variety." So, the couple has abandoned pickling vegetables and has taken up the hobby of litigation instead.  

There was a similar recent story in Florida, that revolved around milk. The Tampa Bay Times reported that Florida regulators insisted that a local dairy label its' "skim milk as imitation." The liquid in question came from mammals, and was obviously milk as most would understand it, but Florida "defines skim milk as having Vitamin A." And, this dairy elected to market the natural mammalian output without adding Vitamin A. Thus, the product, straight from the mammals, did not fit the state's definition of "skim milk."  

Depends on what the definition of "milk" is? Well, the dairy did not acquiesce in the state's definition of "skim milk" and filed a lawsuit. According to the Times, the courts sided with the dairy, and Florida is now on the hook for "nearly $437,000 to cover the fees of attorneys who sued." The court concluded that labeling this mammalian output "milk" is not deceptive: “The State was unable to show that forbidding the creamery from using the term ‘skim milk’ was reasonable,” according to the Eleventh Circuit Court of Appeals (the federal appeals court responsible for the region that includes Florida). 

More recently, the USA Today reported that federal officials have raised a similar concern regarding other milk. Not milk that comes from mammals, but from nuts (those who want to may digress at this point and discuss how it is both possible and sometimes probable that some mammals may also be "nuts," but I will not venture there). 

USA Today reports that last summer, FDA Commissioner Scott Gotlieb discussed that there are "hundreds of federal “standards of identity” spelling out how foods with various names need to be manufactured." He suggested that those who manufacture drinks from beans and nuts, and label the product as "milk" might soon "need to consider alternative language." It seems that the federal government "plans to start enforcing a federal standard that defines “milk” as coming from the “milking of one or more healthy cows.” Some will see that as broader than the now litigated Florida definition, but perhaps it is as specific. Apparently, the produce of goats is not "milk?" 

The agency reportedly anticipates being sued. The Commissioner has acknowledged that "dictionary definitions are broader and say milk comes from a lactating animal or a nut." That may bring solace to the Almond Milk crowd or even the Coconut Milk crowd. But, does the dictionary provide any solace to the soy bean fans? According to Encyclopedia Britannica (a series of publications printed with ink on paper that was then bound into what we old folks called "books"), a soy bean is a seed. Seemingly, such a seed would perhaps not be seen as either a mammal or a nut?  

Another point perhaps worth noting is the broad use of "animal" in the dictionary definition. While that seemingly expands the population of potential contributors, it is generally accepted that the only animals to lactate are mammals. But, I digress.  

Since 1967, the Fair Packaging and Labeling Act has required that products: be labeled to disclose net contents, identity of commodity, and name and place of business of the product's manufacturer, packer, or distributor.

Thus, in this next iteration of litigation, it appears to be a focus upon the "identity" requirement. And, where will the lines be drawn? As noted above the product of seeds may be excluded from a label "milk" as seeds may not meet the plain dictionary definition of "animal or nut." The analysis extends to almonds, cashews, macadamias, and even pumpkin (which again, are felt to more likely be seeds). Nut milk is created by soaking, blending or crushing, and straining. Then there is coconut "milk" which is produced by pressing or even steeping the pulp of a coconut.  Does it matter if cooking is involved? Though there is debate as to whether a coconut is a fruit, nut or seed, there are those who assert that it is all three.  

Just for our personal interest, imagine how hard it might become to answer the "got milk?" question that became so popular a few years back.

In the end, the government certainly has every reason to protect consumers from being mislead. It makes sense that products should not be mislabeled or misleading. But, does it make sense for government to regulate definitions that are inconsistent with dictionary definitions? Is government micro-management needed in the determination of whether soy beans are a nut, a seed, or a fruit? Is there room for common sense in government legislation and regulation? Is there a rational basis to support that home preservation of cucumbers is somehow safer than of carrots? 

As workers' compensation regulators, perhaps we are all well-reminded that regulation serves a purpose and over-regulation may only create confusion and litigation. The National Conversation identified that a major criticism of workers' compensation is the patchwork of regulations that results from having state-based systems, and thus at least the potential for inconsistency in requirements, definitions, and documentation. Regulators might do well to consider both the benefits of consistency and the detriments of litigation. 


David Langham is the Florida Deputy Chief Judge of Compensation Claims. He blogs weekly regarding system issues, regulations and decisions. He has published many articles and delivered more than 1,000 professional speeches.



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    About The Author

    • Judge David Langham

      David Langham is the Deputy Chief Judge of Compensation Claims for the Florida Office of Judges of Compensation Claims at the Division of Administrative Hearings. He has been involved in workers’ compensation for over 25 years as an attorney, an adjudicator, and administrator. He has delivered hundreds of professional lectures, published numerous articles on workers’ compensation in a variety of publications, and is a frequent blogger on Florida Workers’ Compensation Adjudication. David is a founding director of the National Association of Workers’ Compensation Judiciary and the Professional Mediation Institute, and is involved in the Southern Association of Workers’ Compensation Administrators (SAWCA) and the International Association of Industrial Accident Boards and Commissions (IAIABC). He is a vocal advocate of leveraging technology and modernizing the dispute resolution processes of workers’ compensation.

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