Milking It: Reconsidering the FDA’s Refusal to Require Labeling of Dairy Products Produced from rBST Treated Cows in Light of International Dairy Foods Association v. Boggs

Abstract

The Sixth Circuit Court of Appeals’ recent decision in International Dairy Foods Association v. Boggs, while ultimately resulting in regulation pertaining to milk labeling that is similar to regulations in other states, provides a useful framework for challenging the Food and Drug Administration (FDA)’s contention that it lacks the authority to mandate labeling of milk from cattle that have been treated with the hormone rBST. The court in Boggs determined that a compositional difference exists between milk from cows treated with the hormone and those that were not, which could be considered a material fact mandating labeling under the Food, Drug, and Cosmetic Act. This Article discusses the history of the FDA’s statutory authority to regulate food products, considers the Act’s purposes with respect to labeling, as well as the agency’s interpretation of that grant of authority. The Article then discusses the FDA’s controversial approval of rBST and the resulting challenges to that decision. The Article concludes by discussing how the decision in Boggs can be instrumental in requiring the FDA to mandate labeling of milk from cows treated with rBST due to the court’s acknowledgement of the compositional difference between conventional and rBST free milk.

Keywords: FDA, rBST, rGBH, labeling, Boggs, Food, Drug, Cosmetic Act, genetic engineering, and food