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Monsanto's Victory in Maine rBGH Lawsuit A setback for Consumers

Portland Press Herald, Portland, Maine
Tuesday, December 30, 2003 Copyright
<http://business.mainetoday.com/copyright.shtml> © 2003 Blethen Maine
Newspapers Inc.

MAINE VOICES: Tom Bradley

Monsanto's 'victory' only hurts consumers

For Christmas, Maine's dairy farmers and consumers learned that Oakhurst
Dairy settled Monsanto Co.'s lawsuit challenging the labeling on Oakhurst
milk.

Oakhurst is adding to its label a statement that says the Food and Drug
Administration finds no significant difference in milk produced with or
without artificial growth hor- mones.

The settlement was as welcome as a lump of coal and as comforting as
Monsanto's assurances. Oakhurst's concession ended the case and its legal
costs, and the case became just one more battle in Monsanto's strategy to
push engineered food upon resistant consumers.

Maine consumers, who receive no benefit from drinking milk produced with
artificial growth hormones, are unlikely to change their buying habits
because of this label change. After all, this is the same FDA that warns
against buying prescription drugs from Canada.

The key words in Oakhurst's new labeling are that the FDA finds no
significant difference in milk produced with artificial growth hormones.
First, consumers should not be fooled that there are no differences, because
there are several, including the presence of the artificial growth hormones
themselves.

Second, in the absence of long-range human studies, how comfortable should
we be that the FDA did not find significant differences?

Third, even a smattering of sympathy for cows, who suffer higher rates of
painful udder infection and lameness as a result of growth hormone
injections, should influence our preference. The European Union and Canada
ban the use of artificial growth hormone in cows for this reason.

And that takes us back to concern about the milk itself. Even if we turn our
backs on the suffering of animals, we should be concerned about the larger
use of antibiotics to treat the udder infections and the antibiotic residues
that can find their way into our milk.

Since Monsanto now has imposed its propaganda statement, the larger issue is
how this settlement will be perceived by other dairies and food industries.
Was Monsanto's case strong enough to warrant this result?

Not at all. Truthful commercial speech is protected by the First Amendment.
Monsanto based its claim on a federal law that protects consumers against
false or misleading advertising. Monsanto argued that Oakhurst's label,
although truthful, misled consumers by implicitly disparaging the milk of
other dairies.

If consumers assume that Oakhurst milk is better than milk produced with
artificial growth hormone, that interpretation results from the values that
consumers bring, not from being misled by Oakhurst.
Courts have made this very distinction - advertising that is false or
affirmatively misleads consumers is not the same as advertising that simply
is subject to interpretation by consumers as better, even if that
interpretation is not entirely accurate. To use one court's example, many
consumers might think that an "anticavity" toothpaste means that it will
prevent most cavities.

If the toothpaste only reduces cavities by 10 percent or 20 percent, that
doesn't make the advertisement misleading, regardless what consumers may
think the label means.

The distinction is subtle but important, because otherwise Monsanto and
other companies could squelch other information that consumers want but may
not completely understand.

Does dolphin-safe tuna mean that no dolphins are killed? Is a free-range
turkey superior to turkeys raised in cages? If artificial coloring isn't
harmful, is it misleading to say that a product has none? If the FDA
believes that organic food is not superior to other food, should producers
be allowed to label it organic?

Monsanto's actual problem is that consumers prefer milk not produced with
artificial growth hormones. So, why should consumers risk the unknown when
there's a reasonable alternative?

If the label truly misled, the FDA had authority to act. It's not Monsanto's
role to act for the FDA in regulating milk labeling, and the court was
unlikely to want to take on that role either.

It's a shame that we won't get to see someone put Monsanto in its place. Or
maybe, when Monsanto tries to push around another dairy, we will.

- Special to the Press Herald--Portland, Maine
ABOUT THE AUTHOR Tom Bradley is staff attorney for the Maine Citizen
Leadership Fund, a nonprofit organization.

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