I guess I've spent too much time looking at Clover Stornetta milk cartons in the supermarket because I thought that the whole rBST labeling issue had been resolved in a sane and sensible manner. Not so, I found out during the Robert Kenner blogger interview, thanks to Dan Bolton of Natural Food Network.

Milk (and other dairy product) labeling lives in an Orwellian world where Big Brother, in the form of both federal and state governments, insists that truth is misleading. Truthful product claims are suppressed at pain of fines or even criminal prosecution.

At the heart of the matter are so-called “absence claims,” i.e., claims that dairy products do not contain rBST or that the milk from which they produced comes from cows not treated with rBST. There are legitimate concerns about absence claims because it's virtually impossible to prove a negative. That is, absence of evidence is not evidence of absence. (If you don't understand this concept, read The Black Swan, which clarified it for me.)

However, pushed by milk producers who use rBST, their suppliers and various sock puppets, the feds, states and their various regulatory agencies have moved regulation of absence claims beyond the realm of addressing legitimate concerns, into the dark and dangerous territory of suppressing truthful product labeling. Over the past 18 months, there have been suppression attempts regarding rBST in at least six states. Also, the FDA has for years suppressed and continues to suppress truthful labeling regarding rBST in non-organic dairy products. (USDA certified organic regulations prevent the FDA from extending their tyranny to organic products, although several states have tried.)

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Pennsylvania released revised standards for milk labeling on January 17, 2008. These standards say, "If the product is represented as, or intended to be represented to consumers as, containing or produced from milk from cows not treated with rBST," the label must state, "'From cows not treated with rBST. No significant difference has been shown between milk derived from rBST-treated and non-rBST-treated cows' or a substantial equivalent." Labeling for USDA certified organic milk is not required to include the "No significant difference..." statement.

Utah proposed rules for dairy product labeling on February 1, 2008. The document says, "A person may not: (a) manufacture, sell, deliver, hold, or offer for sale a food, milk or dairy product with a false or misleading label or labeling, or (b) disseminate a false advertisement about a food, milk or dairy product." A exemption is offered, stating, "[A] label, labeling or advertisement that may otherwise be false or misleading may be used if the label, labeling or advertisement includes a statement that the label, labeling or advertisement does not suggest there is a difference between the quality, safety, wholesomeness, or composition of the food, milk or dairy product and another similar food, milk or dairy product offered for sale." No exemption is offered for organic dairy products.

In Missouri, a bill introduced into the state house on February 27, 2008 would prohibit rBST labeling, stating, "A food shall be deemed to be misbranded...[f]or all dairy products...[i]f the label contains the following production statement: 'this milk is from cows not supplemented with rBST', or a substantially equivalent claim; or...[i]f the label makes any claims regarding the composition of milk, as opposed to the manner in which milk is produced, such as 'No Hormone', 'Hormone Free', 'rBST Free', 'rbST Free', and 'bST Free'." An exemption is offered for organic dairy products.

An Indiana House bill introduced on January 15, 2008 attempted to ban dairy product labeling with a "(a) compositional claim that cannot be confirmed through laboratory analysis; or (b) compositional or production-related claim that is supported solely by sworn statements, affidavits, or testimonials." No vote was taken on the Indiana House floor and this effort appears to be dead.

The Kansas state legislature passed a bill stating, "Each milk, milk product or dairy product label that contains a production claim stating that: 'This milk is from cows not supplemented with rBST,' or a substantially equivalent statement regarding hormones, shall be deemed misleading unless both of the following conditions are met: (1) The owner or operator of each dairy manufacturing plant...verifies that the claim is accurate and has in its possession a milk producer’s affidavit that the milk is from cows not supplemented with rBST and any other written records deemed necessary by the dairy manufacturing plant owner or operator to support the claim, and these documents are made readily available to the department of agriculture for inspection. [and] (2) The label panel contains...the following qualifying statement: 'The FDA has determined that no significant difference has been shown between milk derived from rBST-supplemented and non-rBST-supplemented cows', or a substantially equivalent statement regarding hormones." On April 23, 2009, then-Kansas Governor Kathleen Sebelius vetoed the legislation. Perhaps significantly for this issue, Sebelius is now the U.S. Secretary of Health and Human Services, the Executive Branch Department that oversees the FDA.

The hottest current battle appears to be in Ohio, where the state adopted, on an emergency basis no less, a rule stating, "A dairy label which claim[s] that 'this milk is from cows not supplemented with rbST' ...may be considered misleading...unless...[t]he label contains, in the same label panel, in exactly the same font, style, case, and color and at least half the size (but no smaller than seven point font) as the foregoing representation, the following contiguous additional statement (or a substantially equivalent statement): 'The FDA has determined that no significant difference has been shown between milk derived from rbST-supplemented and non-rbST-supplemented cows.'" Additionally, claims such as "rBST Free" are prohibited. No exception for organic products is offered. The Organic Trade Association (OTA) has sued Ohio's Director of Agriculture in federal court, challenging the Ohio regulation. The OTA is currently appealing a lower court decision denying an injunction to stay the Ohio regulations to the Sixth Circuit.

The root of the issue, however, begins at the federal level, with the FDA. Without action here, fixing problems at the state level will not fully resolve the situation. On February 10, 1994, shortly after rBST was approved for bovine use, the FDA issued dairy product labeling guidance that said,  "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... Instead, the concept would better be formulated as 'from cows not treated with rbST' or in other similar ways. However, even such a statement...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...FDA believes such misleading implications could best be avoided by the use of accompanying information...[such as] 'No significant difference has been shown between milk derived from rbST-treated and non-rbST-treated cows,'...

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I know this'll hack off some readers but I gotta agree with the FDA and states about statements along the lines of "does not contain rBST. They shouldn't be used on milk packaging. If the statement is absolute, it's potentially false because, as previously stated, absence of evidence is not evidence of absence. If it's meant to be relative to the limits of current testing technology, the same statement could truthfully be used to label milk from cows that have been treated with rBST, which makes the label useless.

But when states and the FDA attempt to suppress or force disclaimers on production claims that are both true and verifiable such as, "This milk is from cows not treated with rBST," it's poppycock, pure poppycock, 99 44/100% pure poppycock, poppycock so freakin' pure it floats. [I cribbed this from some long-ago politician, I have no idea who.]

Since I'm not a lawyer (although I sometimes play one on the Web), I'm not even going to address the First Amendment issues or (in cases of state regulation) the commerce clause issues or (when state regulations make no exception for organic products) the Organic Food Production Act issues. I'm just going to talk about what's right.

What the states and the feds are reacting to, of course, is lobbying efforts by conventional dairy producers, hormone manufacturers and their sock puppets. In doing so, they're letting down the voters (all of whom happen to be consumers (assuming, of course, that dead people don't vote, perhaps a dubious assumption but I'll set that aside for another time and place)). It is regulators' duty to stand up against this pressure and to defend truthful, production-related rBST labeling for at least four reasons:

1 ) With very few exceptions (e.g., national security, trade secrets, sealed court records), telling the truth should be an absolute defense against government coercion. This principle is a fundamental tenet of American liberty, dating to the John Peter Zenger trial during our colonial period. Further, government has an affirmative responsibility to protect those who tell the truth from coercion by private parties. With regard to milk labeling, the federal and various state governments have failed the people on both counts. And they failed on an issue that is even more clear-cut, as the Zenger trial considered making truthful statements about other people while the milk labeling controversy addressing make truthful statements about YOUR OWN FREAKIN' PRODUCTS!!!  Statements such as, "This milk is from cows not treated with rBST," are verifiably true. Period.

2) As noted previously, absence of evidence is not evidence of absence. Just because no rBST can be detected in milk from rBST-treated cows using current technology does not mean that it's not there. It also doesn't mean that future tests won't be able to detect it. Consumers have a right to know about milk production techniques so that they can make their own, informed decisions, taking into account this concept.

3) The issue is about more than the milk itself. Consumers may have ethical or aesthetic reasons for avoiding milk from cows treated with rBST. They may believe that cows treated with rBST suffer adverse effects. They may wish to avoid support manufacturers of rBST because of their actions in other markets. The reason doesn't actually matter. The point is that consumers are entitled to the information.

4) According to some schools of economics, efficient markets require perfect information. A duty of government is to increase market efficiency. Therefore, it is incumbent upon government to encourage, not suppress, truthful information even if such information is deemed to be detrimental to certain producers competing in the market. Those producers are equally free to inject their own, truthful information into the market discussion.

And, don't give me this crap about confusing the consumer because production-related rBST "statements may imply that milk from untreated cows is safer or of higher quality than milk from treated cows," and requiring accompanying disclaimers. It's not the duty of dairies that don't use rBST to pimp products of dairies that do. If milk producers who use rBST think that truthful production-related rBST absence claims hurt their business, it's up to them to get up off of their lazy asses and engage in the market discussion with consumers. Hiding behind regulators' skirts may be convenient for them but it's also profoundly anti-market. I mean, seriously, if we take this disclaimer thing to its (il)logical conclusion, when Audi informs prospective customers that their 3.2 liter TT Roadster can go from 0-60 in 5.6 seconds, Audi will be forced to add a disclaimer stating that the BMW Z4 can hit 60 mph from a standing start in less than 5 seconds.

In a perhaps positive development for defenders of truthful milk labeling, Monsanto sold its rBST business to Eli Lilly in August, 2008. It remains to be seen if Lilly will be as aggressive in pushing for dairy labeling regulation as was Monsanto.

Personally, I couldn't give a rat's behind if the milk I drink comes from cows treated with rBST. When I go to the grocery store for milk, I care about fat content, pull date and price. Period.

But, I care deeply about free markets and the information flow required to keep markets free. Restrictions on truthful, production-related rBST claims have no place in a society that believes in free speech and free markets.