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Gene Hugoson, Commissioner
Minnesota Department of Agriculture
625 Robert Street North
St. Paul, MN 55155
(651) 201-6219
Dear Commissioner Hugoson:
We are writing to seek your assistance and to notify your office regarding the growing use of misleading labeling and marketing practices by certain dairy packagers selling milk in Minnesota.
The Center for Global Food Issues is part of a coalition which has conducted research into the labeling, advertising and other marketing practices of various dairy packagers selling products for more than 5 years. We have recently completed in-store reviews of multiple outlets for eight major retail grocery chains in the Minneapolis, Minnesota market. We are currently reviewing producer, cooperative and processor surveys which suggest that production demands linked to illegal marketing practices are growing. These demands are creating unfair economic and other burdens for Minnesota dairy producers, processors and consumers. Producer survey results from several states, including Minnesota, also reveal producer concerns about the lack of systems and verifications in place to guarantee the sources of fluid milk for processing and thus truthfulness of certain production-related claims including organic.
Our in-store reviews, which included interviews with dairy case managers, reveal a range of practices which violate federal and state law, U.S. Food and Drug Administration guidelines and Minnesota State regulations regarding the labeling, advertising and marketing of foods – in particular fluid milk and other dairy products. Our particular concerns include:
- Milk labels, in-store displays, and other marketing materials which violate state and federal guidelines for making truthful and non-misleading claims in any particular;
- Lack of awareness of state and federal laws regarding truthful and non-misleading marketing of dairy products by retailers – in particular, dairy case managers; and,
- False or misleading information provided by both packagers of milk and retailers regarding dairy product health, nutrition and/or quality claims.
We want to emphasize our belief in commercial free speech and in consumers' rights to be fully informed about the products they purchase. The practices that concern us, however, mislead consumers, damage dairy-farm economics, distort markets and promote farming practices with potentially negative environmental consequences.
Our recent in-store reviews found over one dozen brands of fluid milk, yogurt, butter, ice cream and/or other dairy products with false or misleading labeling and marketing claims. In addition, our consumer interviews with dairy case managers found 82 percent provided incorrect or non-responsive information to inquiries regarding distinctions between dairy products making antibiotic-, hormone- or pesticide-absence claims. When asked what differences there were between milk marketed with absence claims and those without absence claims, many dairy case managers stated there were health, nutritional or quality differences. Only 12 percent of the store representatives interviewed had correct information to share with consumers about safety, nutrition and quality information regarding milk label and marketing claims made on products sold in their own stores.
Our review of 16 brands of fluid milk sold in the Minnesota market found that more than 67 percent contained labels with potentially false or misleading production claims which appear to violate federal and Minnesota laws. Other marketing, which includes in-store-promotions, consumer advertising and Web sites, of these products was found to also include false and misleading claims*. Milk marketed with false or misleading claims is selling for as little as $2.19 to as much as $3.99 per half-gallon; while milk without false or misleading production claims is selling for only $1.89 to $1.99 per half-gallon. Consumers in Minnesota are clearly paying significant premiums for milk based on claims which are not truthful or which are misleading.
These absence claims, which consumer research shows to be misleading , are now influencing dairy case managers who are providing false information to consumers about important health and nutrition issues. Hundreds of Minnesota consumers and dairy producers have joined with thousands across the country signing a petition urging grocers to support truthful and non-misleading marketing to their customers and encourage elected officials and regulators to enforce existing regulations to protect consumers and farmers. A copy of this petition and accompanying signatures is attached.
We would direct you to our complaints to federal regulators and other states (found at http://www.stoplabelinglies.com/) and add the following additional brands of fluid milk making potentially false and misleading absence claims for your investigation and action:
- Wild Oats Market brand
- Kirkland Organic brand
- Archer Farms brand
- Trader Joe’s brand
- Farmer’s All Natural Creamery brand
- Kemps Select brand
- 365 (Whole Foods Market) brand
- Horizon Organic brand
Labels from these brands, as sold in Minnesota stores, are attached. We believe that your review will clearly find these labels, marketing materials, and related advertising do not conform to FDA, FTC or USDA guidelines for making hormone, pesticide or antibiotic claims. Additional background materials on these and the other reported brands, including in-store displays, Web sites, advertising and other marketing materials are posted to http://www.stoplabelinglies.com/ . To view samples of in-store marketing, Web sites, advertising and other sources of false and/or misleading claims visit the gallery at http://www.stoplabelinglies.com/.
Federal and state regulations and associated guidelines regarding food labels, marketing and absence claims are clear. Federal Law: 21 CFR Part 101 – which Minnesota law has specifically adopted -- states that claims made on food labels must be “ complete, truthful, and not misleading….” Absence claims, specifically those referencing antibiotics, pesticides and hormones do not meet this standard and have been specifically addressed by federal guidelines. The U.S.D.A., Agricultural Marketing Service (AMS) guidelines [found in Docket No. 02-32806 Filed 12-27-02 and Docket No. LS-02-02] relating to antibiotic and hormone absence claims specifically states:
“’Antibiotic free’ marketing claims are not allowed…however, Labeling and Consumer Protection Staff (LCPS) will allow ‘no detectable antibiotic residue’ claims if the product is tested and the science-based test protocol is provided… Since all plants and animals produce hormones, a ‘hormone-free'’ plant or meat product is a misnomer and a ‘hormone-free’ marketing claim cannot be made.”
The U.S. FDA guidelines [Docket No. 94D-0025 as published in the Federal Register, Vol. 59, No. 28, February 10, 1994, page 6280] relating to milk from cows not supplemented with rbST, which specifically states:
“A food is misbranded if statements on its label or in its labeling are false or misleading in any particular… the presence and absence of information are relevant to whether labeling is misleading… Thus, certain labeling statements about the use of rbST may be misleading unless they are accompanied by other information… Because of the presence of natural bST in milk, no milk is "bST-free," and a "bST-free" labeling statement would be false. Also, FDA is concerned that the term "rbST free" may imply a compositional difference between milk from treated and untreated cows… the concept would better be formulated as "from cows not treated with rbST"… However, even such a statement, which asserts that rbST has not been used in the production of the subject milk, has the potential to be misunderstood by consumers. Without proper context, such statements could be misleading. Such unqualified statements may imply that milk from untreated cows is safer or of higher quality than milk from treated cows. Such an implication would be false and misleading… Proper context could be achieved… with the statement that "No significant difference has been shown between milk derived from rbST-treated and non-rbST-treated cows". States should evaluate any labeling statements about rbST in the context of the complete label and all labeling for the product, as well as any advertising for the product.” [Emphasis added]
The State of Minnesota has the responsibility for adopting and administering rules such as regulating the sale of misbranding of dairy products. Consumers and dairy producers are protected under Minnesota Public Law regarding Food Misbranding, which specifically states:
§ 31.123. Accurate representation:
Food shall be deemed to be misbranded:
(a) If its labeling is false or misleading in any particular, or if its labeling, whether on the commodity itself, its container or its package, fails to conform with the requirements of Laws 1974, chapter 84.
(f) If any word, statement, or other information required by or under authority of the
Minnesota Food Law to appear on the label or labeling is not prominently placed thereon with such conspicuousness (as compared with other words, statements, designs, or devices, in the labeling) and in such terms as to render it likely to be read and understood by the ordinary individual under customary conditions of purchase and use.
The U.S. Food and Drug Administration (FDA) has issued warning letters to dairy packagers which clearly state “no hormone” or “hormone free” claims – claims appearing on brands of milk sold in Minnesota – are false. Similar absence claims regarding pesticides and antibiotics are equally false or misleading. Our review of pricing in stores in Minnesota suggests that consumers are paying 10 to 110 percent premiums for dairy products carrying these claims – sometimes paying these premiums for brands of milk produced at the same plant as less-expensive store brands available in the same dairy case. Consumer and marketing research clearly shows that consumers would only pay more for the exact same milk if they were misled to believe these products were somehow different when they are not.
Other states, including New Jersey and Washington, have take action against dairy marketers engaging in practices which deceive consumers and harm dairy producers. Examples of these actions are found on our web site, and we have attached a copy of a Washington State enforcement letter for your additional guidance and background.
We request that you review all labeling, marketing practices and advertising of dairy products in Minnesota and take the appropriate actions to ensure compliance with both the federal and state laws and regulations to protect the consumers of Minnesota. Consumers in Minnesota are entitled to nothing less than your diligent efforts to ensure that they are not misled by the practices of a few dairy packagers. We would also request that you work with grocery retailers to educate dairy case managers to provide accurate, truthful and non-misleading information about milk marketing claims as related to safety, health, nutrition and quality. We will be contacting Minnesota grocery retailers with educational materials and ask for your support in encouraging Minnesota retailers to ensure dairy case managers have accurate information and that retailers not support any false or misleading marketing of dairy products in their stores.
Thank you for your diligence and timely response to our request. We would appreciate your acknowledgement and stated plans for review of our complaint within 14 days of receipt of this letter.
Sincerely,
Alex Avery, director of research and education Hudson Institute, Center for Global Food Issues on behalf of the Stop Labeling Lies Coalition
ENCLOSURES:
Compact Disk with:
- Dairy label examples
- In-store survey results
CC:
Carolyn Hudson, Director of Nutrition Public Relations
Midwest Dairy Association
2015 Rice Street
St. Paul, MN 55113
1-800-642-3895
Felicia Satchell, Staff Director
U.S. Food and Drug Administration
Center for Food Safety & Applied Nutrition
Office of Nutritional Products Labeling
5100 Paint Branch Parkway HFS-555
College Park, MD 27040
C. Steven Baker, Director
Midwest Region
Federal Trade Commission
55 East Monroe Street, Suite 1825
Chicago, IL 60603-5001
H. Paul Kyburz, Market Administrator
Federal Milk Market Administrator (Upper Midwest Region)
USDA - AMS - Dairy Programs
4570 W. 77th Street
Suite 210
Minneapolis, MN 55435-5037
952-831-5292
Ron Phillips, Vice President, Legislative and Public Affairs
Animal Health Institute
1325 G Street, NW Suite 700.
Washington, DC 20005
Telephone: 202-637-2440
Connie Tipton, CEO
International Dairy Foods Association
1250 H Street, NW, Suite 900
Washington, DC 20005
Telephone: (202) 737-4332
Randy McGinnis, Chief Operating Officer
Dairy Farmers of America, Central Area
10220 N. Ambassador Dr.
Kansas City, MO 64153
Phone: 816-801-6200
FAX: 816-801-6201 |
