Got (rbST-free) Milk?

Abstract

Over the past several decades, the United States has increasingly grown genetically engineered crops.1 As genetically modified food becomes more common, so too have controversies over “Frankenfood.”2 One recent controversy, played out in International Dairy Foods Ass’n v. Boggs,3 concerns not only the usual environmental and health issues, but also constitutional free speech issues, related to genetically modified milk. In Boggs, the International Dairy Foods Association and the Organic Trade Association (collectively “Processors”)4 claimed that regulations imposed by the Ohio Department of Agriculture violated their First Amendment rights and the dormant Commerce Clause.5 The regulations at issue prohibited dairy processors from stating that their milk products do not contain recombinant bovine somatotropin (rbST), a genetically engineered artificial hormone given to cows to increase milk production,6 and required dairy processors to include a disclaimer when making claims that no rbST was used in the production of their milk.7 The Sixth Circuit struck down the regulations8 in a victory for both the environment9 and the free market, giving consumers the freedom to choose whether to drink milk that contains artificial hormones, and enabling the market to reward dairy processors meeting the growing demand for rbST-free milk.