Montana milk freshness rule prevails

Challenge to ‘Sell by’ date of 12 days loses

HELENA – A Montana judge has rejected a lawsuit filed by a California food distributor that tried again to abolish a rule that requires milk sold in Montana to be stamped with a “sell by” date of 12 days after pasteurization.

District Judge Mike Menahan, in a decision handed down Friday, ruled that Core-Mark International had failed to show the rule was either unreasonable or created harm to consumers and competition.

The decision also upholds a 2012 finding by the state Board of Livestock to reject Core-Mark’s request to get rid of the 12-day rule and instead let milk producers stamp their own expiration on milk – a process known as “open code.”

Menahan said the livestock board fairly considered the other dating method and chose to stick with Montana’s current practice. He also said state agency decisions should be given “deference” by the courts unless the agency acted illegally or arbitrarily.

“Even though there are other means to control the quality and freshness of milk, the 12-day rule remains reasonably necessary and proper to control the standards or quality of milk sold in Montana,” Menahan wrote, according to a story published by Lee Newspaper Montana.

Attorneys for Core-Mark did not immediately return messages left Friday.

Livestock Department Executive Officer Christian Mackay hadn’t seen the decision Friday afternoon, and declined initial comment.

The ruling marks the latest development in a decadelong dispute over Montana’s 12-day sell-by date, which has been in effect since 1980.

In 2002, Inland Dairies of Spokane was allowed to “dual date” its milk sold in parts of Western Montana, marking it with the sell-by date and an expiration date.

Core-Mark, a regional food distributor based in South San Francisco, bought Inland Dairies in 2006 and greatly expanded its distribution of milk in Montana, prompting the state to revoke its dual-dating privileges in 2008.

Core-Mark sued the state in federal court, but agreed to settle if the state held a hearing and review on whether to end the rule, which requires milk be pulled from retailers’ shelves after the 12-day deadline.

While a state-hired hearings officer recommended that the 12-day rule be repealed and replaced with expiration dating by individual dairies, the Board of Livestock rejected that recommendation in May 2012 and kept the 12-day rule.

Core-Mark then sued Montana again in state court, asking Menahan to overturn the 12-day rule.

Montana dairies intervened in the case on the side of the state and the 12-day rule. They said the 12-day rule protected and informed consumers and did not lead to widespread waste of milk.

Core-Mark argued that dairies are in the best position to know when their own milk expires, and should be able to determine that date. The 12-day rule doesn’t tell consumers when the milk goes bad, they said.

The 12-day rule also limits competition from out-of-state dairies and increases consumer cost, Core-Mark said.

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