A California-based food distributor argued in court Tuesday
that Montana's 12-day "sell by" date for milk restricts competition and doesn't
really protect consumers, and should be thrown out.
But a Helena attorney for one of Montana's largest dairies, Meadow Gold, said the milk-producing industry in the state is solidly behind the 12-day rule and believes it protects consumers and the industry.
Jock Anderson said milk sales are just a "sideline" for Core-Mark International, the distributor challenging the rule, and that its objections to the rule are mostly for its own convenience.
"We don't have a place to go or another product to sell if this market is soiled," Anderson told state District Judge Mike Menahan of Helena. "If this turns out to be a mistake, (Core-Mark) can just say, 'oops.' But the people on this side of the issue have a lot more at stake."
Core-Mark, headquartered in South San Francisco, Calif., distributes milk into Montana from a Spokane dairy and milk processor.
The company has been trying for several years to get rid of Montana's 30-year-old rule that says any Grade A milk sold in the state must be stamped with a "sell by" date of 12 days after it is pasteurized.
Core-Mark sued Montana over the rule in 2008 in federal court, but agreed to drop the lawsuit if the state Department of Livestock held a formal hearing on whether to get rid of the rule.
After the lengthy hearing, an independent hearings officer said in 2011 that the rule is invalid and should be repealed. But the Board of Livestock decided a year ago to keep the rule. Core-Mark filed suit in state court a month later, asking the judge to throw out the rule.
Menahan said Tuesday he'll rule on the case sometime after he gets final written arguments in mid-June.
Trent Baker, a Missoula attorney representing Core-Mark, said Tuesday the 12-day rule doesn't inform consumers about the true shelf life of milk. Core-Mark wants the state to allow "open code" dating, wherein the milk processor stamps its own date when the milk will go bad -- usually 16 to 21 days after it's pasteurized.
An open-code date gives consumers a more accurate picture of when the milk is no longer fresh, while the 12-day rule does not, he said.
"The (Montana) rule does nothing to provide the consumer with information to allow that person to determine whether the milk they are buying is expected to last 13 days or 21 days," Baker said. "Wouldn't the consumer want to know that? Is my milk going to last another three days, or is it going to last another 10?"
He also said the 12-day rule restricts competition, because it sometimes doesn't allow out-of-state processors enough time to move their product into the state and sell it.
Anderson said Core-Mark's milk processor in Spokane is only a few hours from western Montana markets, and that Montana dairies in Bozeman and Great Falls are about the same distance from Missoula, so the anti-competition argument doesn't hold water.
He also said the real reason Core-Mark wants to undo the rule is because its Spokane dairy supplier has declined to take its regular expiration dates off milk destined for Montana and put the 12-day expiration date on instead.
"The irony of this case is that the state of Montana and 1 million consumers are being demanded to change their regulations and purchasing habits because of the policies of an otherwise insignificant dairy in Spokane, Washington," Anderson said.
Rob Stutz, an attorney for the Department of Livestock, also said the Livestock Board's decision to maintain the rule is clearly within its authority, and can be invalidated only if its decision is found to be "arbitrary and capricious."
(c)2013 The Montana Standard (Butte, Mont.)
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