Some questions probably never need to be answered, and the universe of such questions might include the question: “what exactly is skim milk?” In a decision that sheds light on the current state of the commercial speech doctrine—and which may provide some helpful guidance for our local government readers—the Eleventh Circuit additionally provides some good analysis of low-fat dairy products.

Under Florida law, it is illegal to sell dairy products that are not “Grade A.” In order for a dairy product to be Grade A, vitamin A and D that is lost during the process of skimming milk must be replaced. A family-owned dairy, called Ocheesee Creamery (it’s not clear whether this trade name is an actual native name or takes inspiration from the sale of cheese products), sold skim milk for two years in which it did not add vitamin A and D. The state would allow the sale of such a product, but only if it was labeled as an “imitation milk product,” which was unacceptable to the creamery.  In 2012, the state issued an order to the creamery to stop the sale of its skim milk. The state and the creamery went back and forth for two years to find an alternative label for the creamery’s milk product, but failed to do so. The creamery filed suit against the state in 2014, claiming that the state’s failure to call the creamery’s product “skim milk” was a violation of the commercial speech doctrine under the First Amendment.

The district court granted summary judgment in favor of the state, finding that the Florida law did not violate the commercial speech doctrine. On appeal, the Eleventh Circuit reversed. The Eleventh Circuit applied the familiar Central Hudson test to determine whether the state law violated the First Amendment. At the outset of its analysis, the court reminds us that, even in commercial speech cases, the burden is on the government to prove that its restriction is supported by evidence.

The court first looked at whether the creamery’s speech was lawful. On this point, the state argued that the creamery’s product, because it was not skim milk as defined in state law, could not possibly be First Amendment-protected. In the state’s view, the product could not be advertised as skim milk because it was not legally skim milk. The court disagreed, because it characterized the speech itself as unlawful, while the activity that the creamery engaged in–the sale of a dairy product–was not itself illegal. The court went on to find that the speech in question was not false or misleading because the common understanding of “skim milk” is milk that has been skimmed, not necessarily milk that has been skimmed with replacement vitamin content.

Moving into intermediate scrutiny analysis, the court agreed that the state’s interests in combating deception and adhering to nutritional standards were substantial. The court did not conduct the tailoring analysis, however, because the court determined that the regulation went further than necessary to achieve the government’s objectives, and thus failed the fourth prong of the Central Hudson test. The Eleventh Circuit wrote, “[t]he record makes clear that numerous less burdensome alternatives existed and were discussed by the State and the Creamery during negotiations that would have involved additional disclosure without banning the term ‘skim milk.’” With fairly little analysis, the court acknowledged that Central Hudson review is not a least-restrictive means test, yet found that the state’s broad, selective definition of “skim milk” was unreasonable and therefore failed the fourth prong of the test.

The Eleventh Circuit’s decision in Ocheesee Creamery is instructive for local governments engaging in regulation of commercial speech. While the court acknowledges that Central Hudson review is not intended to be as searching as, say, strict scrutiny review, the court’s analysis of a regulation of commercial speech is hardly deferential and suggests that the fourth prong of Central Hudson—that a regulation go no further than necessary—may be more limiting as applied to government entities than some courts have treated it. At the same time, the court’s failure to engage in significant analysis of the government’s interests in the case suggests that, at least in the Eleventh Circuit, a continued “anything goes” approach to determining whether a governmental interest is substantial for purposes of intermediate scrutiny. The Eleventh Circuit’s analysis may be an extension of the McCullen approach to intermediate scrutiny, which appears to have more teeth in the tailoring analysis as compared to prior judicial treatment of commercial speech cases.

Ocheesee Creamery LLC v. Putnam, 851 F.3d 1228 (11th Cir. 2017).