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Dennis Wolff, Secretary
Pennsylvania Department of Agriculture
2301 North Cameron Street
Harrisburg, PA 17110
Dear Secretary Wolff:
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 Pennsylvania.
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 ten retail grocery chains in Philadelphia and Harrisburg, Pennsylvania markets. 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 Pennsylvania dairy producers, processors and consumers.
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 Pennsylvania 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.
Responses to producer surveys sent in January 2007 to all Pennsylvania licensed dairy producers milking 100 or more cows revealed:
- 55 percent had been asked to discontinue to the use of a safe, legal, approved farming practice
- Only 14 percent reported that they are being paid premiums to cover this and 95 percent claim this premium does not sufficiently cover the value of the lost choice. The vast majority, 86 percent, were being paid NO premium whatsoever for their non-use of products like rbST. Most were paid only 12 cents per hundred weight produced – well below their corresponding economic loss.
- Only 20 percent claim their milk handlers are taking sufficient care to segregate milk to ensure accuracy of corresponding marketing claims. 30 percent claimed handlers were not taking sufficient care to segregate and 14 percent did not know..
- Only 7 percent are being provided any form of indemnification or liability protection associated with handlers’ claims linked to the producers’ milk.
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 100 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, seven percent of dairy case managers stated there were health or nutritional differences and seven percent stated there were quality differences. None 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 18 brands of fluid milk sold in the Pennsylvania market found that more than 64 percent contained labels with potentially false or misleading production claims which appear to violate federal and Pennsylvania 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 $1.59 to as much as $6.35 per half-gallon; while milk without false or misleading production claims is selling for only $1.00 to $1.89 per half-gallon. Consumers in Arizona 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 consumers who shop at the Phoenix-area stores reviewed have signed 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 previous complaints and add the following additional brands of fluid milk making potentially false and misleading absence claims for your investigation and action:
- Stoneyfield
- Shop Rite Organic
- Lehigh
- Trader Joe’s
- New Square
- Rosenberg’s
- Organic Valley
- Naturally Preferred
Labels from these brands, as sold in Pennsylvania 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 Pennsylvania 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 Pennsylvania 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 Pennsylvania Public Law regarding FOOD IDENTITY, PRESENTATION AND ON-PREMISES LABELING, which specifically states:
§ 46.421. Accurate representation:
(b) Food shall be honestly presented.
(1) Food shall be offered for human consumption in a way that does not mislead or misinform the consumer.
And, § 46.422. Labeling:
(a) Labels required on packaged foods. Food packaged in a food facility shall be labeled as specified in sections 9, 10 and 13(f) of the Food Act (31 P. S. §§ 20.9, 20.10 and 20.13(f)), 21 CFR Part 101 (relating to food labeling)…
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 Pennsylvania – are false. Similar absence claims regarding pesticides and antibiotics are equally false or misleading. Our review of pricing in stores in Pennsylvania suggests that consumers are paying 50 to 150 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 Pennsylvania and take the appropriate actions to ensure compliance with both the federal and state laws and regulations to protect the consumers of Pennsylvania. Consumers in Pennsylvania 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 Pennsylvania grocery retailers with educational materials and ask for your support in encouraging Pennsylvania 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 |
