March 11, 2008
Governor Ted Strickland
Governor’s Office
Riffe Center, 30th Flr.
77 South High St.
Columbus, OH 43215-6108
Dear Governor Strickland,
We, the undersigned consumers, dairy farmers, farm and agricultural organizations, public health, animal protection and environmental groups, food processors and retailers are writing to oppose an emergency rule on dairy labeling in Ohio that would restrict labels that refer to milk that comes from cows not treated with a synthetic bovine growth hormone (known as rbGH). We feel that the proposed rule is not sufficiently pro-consumer, restricts free speech rights of dairies and processors and interferes with the smooth functioning of free markets.
We object to a number of sections in this emergency rule.
We object to Section B(2), which requires an additional statement (“The FDA has determined that no significant difference has been shown between milk derived from rbST-treated and non-rbST-treated cows”) in the same font, style, case, size, color and location as the main label claim (e.g. “from cows not treated with rbGH”). First, the label claim is not necessary as the US Food and Drug Administration (FDA) has explicitly said that it is not required. In a July 27, 1994 letter to the New York Department of Agriculture and Markets, FDA stated “the bottom line is that a contextual statement is not required, that in many instances a statement like “from cows not treated with rbST” would not be misleading, and in no instance is the specific statement “No significant difference . . .” required by FDA.” (1)
Second, we know of no other government agency, state or federal that requires such a contextual statement to be in the same font, style, case, size and color as the main label claim. This constitutes undue interference with the exercise of free markets and is not necessary to inform the consumer. To have such a detailed requirement will interfere with interstate commerce since adjoining states may have different requirements. Pennsylvania has a different requirement vis-à-vis font size; Pennsylvania allows the contextual statement (also called a “disclaimer”) to be one-half the size of the main label claim. Thus, a label that is legal in Pennsylvania could be illegal in Ohio and could mean that that product would not be marketed in Ohio.
Third, a requirement that the font size be the same for the claim and the disclaimer is not necessary. Nutrition labels, which are very important to consumers and widely read, are generally in a smaller font size than label claims and often are located on the back or sides of the package.
Fourth, we urge you not to require the contextual statement because it can be misleading. FDA’s own publications have demonstrated that milk from cows treated with rbGH show statistically significant increases in the milk levels of the hormone insulinlike growth factor 1 (IGF-1) as well as somatic cell counts (indicative of subclinical mastitis and an indication of the quality of the milk) in cows that have been treated with rbGH. (2) A detailed analysis of all the somatic cell counts (SCCs) data clearly demonstrated statistically significant increases in SCCs in cows treated with rbGH compared to control cows. (3)
We also object to Section C, which states that all claims about the composition of milk are false and misleading. We agree that certain claims, e.g. “no hormones,” or “hormone-free” are misleading as all milk contains hormones. But it is not misleading to say milk from cows not treated with recombinant bovine growth hormone (rbGH) is “rbGH-free.” Since rbGH is not identical to the naturally produced bGH and is not found naturally in milk, milk from cows not treated with rbGH cannot contain rbGH and so, by definition is rbGH-free. Since claims such as “from cows not treated with rbGH” are permitted, claims such as “rbGH-free” or “rbST-free” should be allowed as well. Prohibiting farmers, dairies and processors from making the truthful label claim “rbGH-free” interferes with their free speech rights under the first Amendment.
Finally, we find it difficult to understand the rationale for declaring an emergency in this case. You have determined that “the failure to immediately adopt a rule . . . will negatively impact Ohioans by not allowing them to make an informed decision about the goods that they purchase and consume.” We don’t understand how there can be an emergency, since the present labeling re: rbGH use, which is in conformance with FDA guidance on the issue, has been in effect for 14 years, since rbGH began to be used commercially in February, 1994.
In sum, we urge you to rescind this emergency rule and issue a final rule that makes the requested changes—drop the requirement for the disclaimer and permit use of the claims “rbGH-free” or “rbST-free.” If the disclaimer must remain, we urge you to drop the detailed requirements for the font, size, color and location. If the emergency rule remains unchanged, it will negatively impact Ohioans’ ability to make an informed decision about the dairy products they buy. It interferes with farmers and dairies’ rights to free speech, and with consumer right-to-know. In this era of increased concern about what’s in our food and how it is produced, Ohio should be making more information available not less.
Cc: Robert J. Boggs, Director Ohio Department of Agriculture
Yours,
Rob Michalak, Director of Social Mission and Public Relations, Ben & Jerry’s
Jay Feldman, Executive Director, Beyond Pesticides
Christine Phillips, Director, BioVision 2020
Marc Zammit, Director, Culinary Support and Development, Bon Appetit Management Co.
Annie and Jay Warmke, Blue Rock Station, Philo, OH
Scott Roy, President, Boulder Ice Cream
Craig Winters, President, The Campaign
Charlie Cray, Director, Center for Corporate Policy
Kevin Golden, Staff Attorney, Center for Food Safety
John Stauber, Executive Director, Center for Media and Democracy
Frank Herd, Executive Director, Citizens for Health
Lynne Genter, Chair of the Board, Clintonville Farmers Market
Rhonda Clark, Executive Director, Community Food Initiatives
Christopher Waldrop, Director, Food Policy Institute, Consumer Federation of America
Charles Margulis, Center for Environmental Health
Mark A. Kastel, Cornucopia Institute
Darwin Kelsey, Executive Director, Countryside Conservancy
Melissa Hughes, General Counsel, CROPP Co-op/Organic Valley
Dan Silver, Executive Director, Endangered Habitats League, Los Angeles
John Peck, Executive Director, Family Farm Defenders
Julie Janovsky, Director of Campaigns, Farm Sanctuary
Bill Wenzel, National Director, Farmer-to-farmer Campaign on Genetic Engineering
Marty Mesh, Executive Director, Florida Organic Growers and Consumers
Wenonah Hauter, Executive Director, Food and Water Watch
Mark Squire, President, Good Earth Natural Foods, Fairfax, CA
Jacqueline Ostfield, Food and Drug Safety Officer, Government Accountability Project
Carrie Hahn, Hahn Natural Foods, Pittsburgh, PA
Jamie Harvie, Health Food Workgroup Coordinator, Healthcare Without Harm
Kelly Shea, VP, Government and Industry Relations/Organic Stewardship, Horizon Dairy
Erica Liss, Humane Farming Association
Sylvia Zimmerman, President of the Board, Innovative Farmers of Ohio
David Wallinga, Director, Food and Health Program, Institute for Agriculture and Trade Policy
William H. Mellor, President and General Counsel, Institute for Justice
Jeffrey Smith, Executive Director, Institute for Responsible Technology
Frederick Kirschenmann, President, Kirschenmann Family Farms, Medina, North Dakota
Michael Jones, Executive Director, Local Matters
Joel Gill, President, Mississippi Livestock Markets Association
Bernadette Unger, President of the Board, MOON Cooperative Services
Annette M. Higby, Policy Committee Coordinator, National Campaign for Sustainable Agriculture
George Naylor, President, National Family Farm Coalition
Tom Buis, President, National Farmers Union
Sarah Janssen, Science Fellow, Natural Resources Defense Council
Ed Maltby, Executive Director, Northeast Organic Dairy Producers Alliance
Steve Gilman, Policy Coordinator, Northeast Organic Farming Association representing 7 states (NOFA-VT, NOFA-NH, NOFA-MASS, NOFA-CT, NOFA-NY, NOFA-NJ and NOFA-RI)
Darren Malhame, Owner, Northstar Café, Columbus, OH
Jim Goodman, Northwood Farms, Wonewoc, WI
Sandy Buchanan, Executive Director, Ohio Citizen Action
Karen Hansen, Education and Outreach Consultant, Ohio Conference on Fair Trade
Carol Goland, Executive Director, Ohio Ecological Food and Farming Association
Ellen Mee, Director of Environmental Health Programs, Ohio Environmental Council
Joe Logan, President, Ohio Farmers Union
Morgan Keenan, Ohio Public Interest Research Group (PIRG)
Liz Rog, Oneota Community Co-op, Decorah, IA
Tom Gleason, President, Oregon Ice Cream Company
Rick North, Project Director, Campaign for Safe Food, Oregon Physicians for Social Responsibility
Ronnie Cummins, Executive Director, Organic Consumers Association
Mark Lipson, Policy Program Director, Organic Farming Research Foundation
Elizabeth Henderson, Peacework Farm, Arcadia, New York
Brian Snyder, Executive Director, Pennsylvania Association of Sustainable Agriculture (PASA)
Francis Thicke, Radiance Dairy, Fairfield, IA
Jeff Milchen, Founder, Reclaim Democracy
Timothy LaSalle, CEO, Rodale Institute
Ted Schettler, Science Director, Science and Environmental Health Network
Gary Hirshberg, President and CEO, Stonyfield Farm, Inc.
Albert Straus, President , Straus Family Creamery, Marshall, CA
Laurel Hopwood, Chair, Agriculture Committee, Ohio Sierra Club
Margaret Mellon, Director, Food and Environment Program, Union of Concerned Scientists
Jill Davies, Western Sustainable Agriculture Working Group, Victor, MT
Andrew Altman, Executive Director, White Dog Community Enterprises
Philadelphia, PA
Patrick Lewis, Regional Buyer, Whole Foods Market, Emeryville, CA
Chuck Deichmann, Willow Creek Farm, Belmont, NY
George Wright, Wright Way Dairy, Hermon, NY
(1) Letter dated July 27, 1994 from Jerold Mande, Executive Assistant to the Commissioner of FDA, to Harold Rudnick, Director, Division of Milk Control, New York Department of Agriculture and Markets
(2) Freedom of Information Summary POSILAC (sterile sometribove zinc suspension), November 5, 1993 At: http://www.fda.gov/cvm/4390.htm#bst6j;
(3) Millstone, E, Brunner, E and I White. 1994. Plagiarism or protecting public health? Nature, 371: 647-648.
___________________________
On March 11, 2008 Consumers Union sent a similar letter to Governor Strickland, see below:
Dear Governor Strickland,
Consumers Union, publisher of Consumer Reports is writing to oppose an emergency rule on dairy labeling in Ohio that would restrict labels that refer to milk that comes from cows not treated with a synthetic bovine growth hormone (known as rbGH). We feel that the proposed rule is not pro-consumer, restricts free speech rights of dairies and processors and interferes with the smooth functioning of free markets.
We object to a number of sections in this emergency rule.
We object to Section B(2), which requires an additional statement (“The FDA has determined that no significant difference has been shown between milk derived from rbST-treated and non-rbST-treated cows”) in the same font, style, case, size, color and location as the main label claim (e.g. “from cows not treated with rbGH”). First, the label claim is not necessary as the US Food and Drug Administration (FDA) has explicitly said that it is not required. In a July 27, 1994 letter to the New York Department of Agriculture and Markets, FDA stated “the bottom line is that a contextual statement is not required, that in many instances a statement like “from cows not treated with rbST” would not be misleading, and in no instance is the specific statement “No significant difference . . .” required by FDA.”
Second, we know of no other government agency, state or federal that requires such a contextual statement to be in the same font, style, case, size and color as the main label claim. This constitutes undue interference with the exercise of free markets and is not necessary to inform the consumer. To have such a detailed requirement will interfere with interstate commerce since adjoining states may have different requirements. Pennsylvania has a different requirement vis-à-vis font size; Pennsylvania allows the contextual statement (also called a “disclaimer”) to be one-half the size of the main label claim. Thus, a label that is legal in Pennsylvania could be illegal in Ohio and could mean that that product would not be marketed in Ohio.
Third, a requirement that the font size be the same for the claim and the disclaimer is not necessary. Nutrition labels, which are very important to consumers and widely read, are generally in a smaller font size than label claims and often are located on the back or sides of the package.
Fourth, we urge you not to require the contextual statement because it can be misleading. FDA’s own publications have demonstrated that milk from cows treated with rbGH show statistically significant increases in the milk levels of the hormone insulinlike growth factor 1 (IGF-1) as well as somatic cell counts (indicative of subclinical mastitis and an indication of the quality of the milk) in cows that have been treated with rbGH. A detailed analysis of all the somatic cell counts (SCCs) data clearly demonstrated statistically significant increases in SCCs in cows treated with rbGH compared to control cows.
We also object to Section C, which states that all claims about the composition of milk are false and misleading. We agree that certain claims, e.g. “no hormones,” or “hormone-free” are misleading as all milk contains hormones. But it is not misleading to say milk from cows not treated with recombinant bovine growth hormone (rbGH) is “rbGH-free.” Since rbGH is not identical to the naturally produced bGH and is not found naturally in milk, milk from cows not treated with rbGH cannot contain rbGH and so, by definition is rbGH-free. Since claims such as “from cows not treated with rbGH” are permitted, claims such as “rbGH-free” or “rbST-free” should be allowed as well. Prohibiting farmers, dairies and processors from making the truthful label claim “rbGH-free” interferes with their free speech rights under the first Amendment.
Finally, we find it difficult to understand the rationale for declaring an emergency in this case. You have determined that “the failure to immediately adopt a rule . . . will negatively impact Ohioans by not allowing them to make an informed decision about the goods that they purchase and consume.” We don’t understand how there can be an emergency, since the present labeling re: rbGH use, which is in conformance with FDA guidance on the issue, has been in effect for 14 years, since rbGH began to be used commercially in February, 1994.
In sum, we urge you to rescind this emergency rule and issue a final rule that makes the requested changes—drop the requirement for the disclaimer and permit use of the claims “rbGH-free” or “rbST-free.” If the disclaimer must remain, we urge you to drop the detailed requirements for the font, size, color and location. If the emergency rule remains unchanged, it will negatively impact Ohioans’ ability to make an informed decision about the dairy products they buy. It interferes with farmers and dairies’ rights to free speech, and with consumer right-to-know. In this era of increased concern about what’s in our food and how it is produced, Ohio should be making more information available not less.
Cc: Robert J. Boggs, Director Ohio Department of Agriculture
Yours,
Michael Hansen, Senior Scientist
Consumers Union