Volume 7, Number 4

In the November 2005 Issue:

[In This Issue]

Monsanto v. Oakhurst Dairy: Are “Negative Labels” Deceptive?

Clark Wolf, Director of Bioethics

Posilac is a product of Monsanto Corporation. The active element of Posilac is rBST (recombinant bovine somatotrophin) also known as rBGH (recombinant bovine growth hormone). Cows treated with Posilac produce much more milk than cows that are not treated. The product has dramatically increased milk yields in the United States, though its use has not been approved in Canada. Advocates note that Posilac has resulted in lower milk prices, and that milk from cows treated with Posilac is not different in any significant respect from other milk. Over the past decade, Posilac has changed the US Dairy industry: Most of the milk now sold in the US either comes from cows that have been treated with rBGH, or has been mixed with milk from rBGH-treated cows.

Oakhurst Dairy is a relatively small, privately-owned company located in Portland, Maine. It advertises itself as an environmentally friendly business committed to a small group of independent dairy farmers who supply the milk they sell, and to the welfare of the cows on these farms. In 2003, it came to the attention of the Monsanto Corporation that Oakhurst Dairy was putting a special label on their milk containers. The label said: “Our Farmers’ Pledge: No Artificial Growth Hormones.”

Monsanto filed a civil suit in the Federal District Court in Boston Massachusetts, charging that Oakhurst Dairy’s label was “deceptive and misleading.” Monsanto sought “an injunction that would prohibit Oakhurst from making these misleading representations in its commercial advertising and promotional practices for its milk and milk products.” But the Monsanto suit did not imply that the label was misleading in the sense that it was false. There is every reason to believe that the milk sold by Oakhurst did indeed come from rBGH free cows. Nor is there evidence that dairy farmers who work with Oakhurst had surreptitiously used rBGH in spite of the label. The suit claimed instead that the label was deceptive because it might give consumers the false impression that milk with labels like the one used by Oakhurst Dairy is healthier or safer than milk that is not so labeled. After considering the evidence, the FDA has ruled that there is no significant difference between milk from rBGH treated cows and milk from untreated cows. There is no evidence suggesting that milk from Oakhurst Dairy is safer or healthier than the alternative.

In response to Monsanto’s lawsuit, many people came forth to support Oakhurst Dairy. Some expressed an interest in purchasing milk from rBGH free cows, and urged that Oakhurst’s product should remain available to satisfy their interest. Ralph Nader weighed in on the issue, arguing that Oakhurst’s label was covered by Constitutional principles protecting freedom of expression. It is evident that many consumers are willing to pay a premium for milk that is advertised as rBGH free. While it is conceivable that these consumers are substantially misinformed about the safety of milk produced with the aid of rBGH, their expressed preference for milk produced without rBGH did not disappear when they were presented with evidence concerning the safety of the product.

There are many other considerations that may explain this preference: Some people are evidently concerned about the welfare of the cows. They believe that cows that have been treated with rBGH are less likely to be happy and healthy, and that they may suffer from excessively bloated udders as a result of their treatment. The Oakhurst Dairy website encourages this belief. It states that “We [owners and operators of Oakhurst Dairy] believe, and our farmers agree, that untreated cows are healthier, happier cows.” Others may regard milk produced without rBGH as more natural than the alternative. Some consumers may simply wish to minimize their contact with food biotechnology. Different people may have very different reasons for their interest in purchasing milk from rBGH free animals. Their reasons should be respected even by those who do not share them.

In considering this lawsuit, and the consumer interest in “rBGH free” milk, it is important to separate the question of whether these consumers have appropriate or rational preferences from the very different question of whether it is appropriate and legally permissible for a dairy like Oakhurst to label their milk as coming from rBGH free cows. It is quite consistent to judge that there is no good reason to avoid milk from treated animals, but to support Oakhurst’s right to tailor its product to a niche market of consumers willing to pay a premium for milk produced without the aid of rBGH. One might reasonably hope that the courts would have affirmed Oakhurst Dairy’s right to advertise their milk as they see fit, provided that their label truthfully reports that their milk is from rBGH free animals.

But the courts never got the chance to address the question. Under threat from Monsanto’s lawsuit, Oakhurst Dairy changed the labels they put on their product. While their label still includes the pledge “No Artificial Growth Hormones,” it also includes, in smaller letters, the statement “FDA States: No significant difference in milk from cows treated with artificial growth hormone.”

With this change, Monsanto dropped its claim against Oakhurst Dairy, and everything remained more or less as it was before.

Or did it? Critics charge that by threatening a small company with a lawsuit, Monsanto managed to get an advertisement for Posilac onto the label of Oakhurst Dairy’s product. Since there is no reason to doubt the accuracy of the original label—the farmers whose milk is sold by Oakhurst still claim to avoid the use of rBGH—it is difficult to take Monsanto’s claim that the labels were “deceptive” at face value. Since there are fully informed consumers who are still willing to pay a premium for milk that is produced without the aid of rBGH, there is no reason to suppose that Oakhurst was taking unfair advantage of the credulous and the gullible.

The case has implications that are wider than the issue described in the lawsuit. Many consumers express mistrust of biotechnology and genetic engineering and are willing to pay a premium for food that is free of genetically engineered agricultural products, or “GE Free.” Just as there is no evidence that milk from cows treated with rBGH is less healthy or safe than the alternative, there is no evidence that so called “GE Free” food is safer or healthier than food that includes genetically engineered products. But since there are issues other than food safety involved in consumer choices, the fact that these foods are equally safe and healthy is not a good reason to prevent producers from using labels to identify their product as “GE Free,” or advertising the fact that their milk was produced without the use of rBGH. If there are fully informed consumers who are interested in purchasing products that have the properties in question, and producers willing to provide such products for them, there is no good reason for others to interfere.

Proposals to label agricultural products that are produced with genetic engineering have met with staunch resistance. But there is a significant difference between so called “positive labeling” and “negative labeling.” A positive labeling provision would be a requirement: it would require that foods containing genetically engineered products must be labeled as such. Negative labels, on the other hand, are permissive: a negative labeling regime permits producers to identify their product as “GE Free” or as “rBGH free.” Since there are consumers willing to pay more for such products, it is an advantage for producers when they are able to place labels of this kind on their products.

There is no reason to believe that consumers who purchase Oakhurst Dairy’s milk are deceived, and no evidence that Oakhurst’s report that its products are produced without rBGH is dishonest. It seems highly likely that Monsanto pursued its lawsuit not in the interest of preventing consumer misinformation, but in the interest of protecting and boosting sales of its own product. It would be very unfortunate if U.S. Courts were to allow themselves to be complicit in such efforts by ruling that negative labels are deceptive. In one sense, it is really too bad that this case was settled out of court. It would have been far more satisfying for our courts to have insisted that producers have a perfect right, as long as they are honest and accurate, to identify their product as “rBGH Free” or “GE Free.”

[In This Issue]

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Bioethics in Brief

November 2005
Volume 7, Issue 4

Published four times per year
by the ISU Office of Biotechnology
and the Bioethics Program.
To subscribe, call 515-294-7356.

Editor: Camie J. Stockhausen

Bioethics Outreach Coordinator: Kristen Hessler

Bioethics Program Coordinator: Clark Wolf

Bioethics Program Assistant: Katy Reeder

Any opinions, findings, conclusions, or recommendations expressed in this publication are those of the author(s) and do not necessarily reflect the view of the ISU Office of Biotechnology or Iowa State University.

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