Court upholds 12-day 'sell-by' rule for milk

2014-07-25T14:35:00Z 2014-07-27T16:01:08Z Court upholds 12-day 'sell-by' rule for milkBy CHARLES S. JOHNSON Gazette State Bureau The Billings Gazette

HELENA — The Montana Supreme Court on Friday unanimously upheld a lower-court decision supporting the state Board of Livestock’s decision to keep its rule providing for a “sell-by” date for milk of 12 days after pasteurization.

The court affirmed a 2013 decision by District Judge Mike Menahan of Helena. The district judge had upheld the Board of Livestock’s 2012 decision to keep the 12-day rule.

The Supreme Court ruling ends, at least for now, a decade-long fight over Montana’s 12-day milk dating rule, which was enacted in 1980.

Under this rule, containers of all milk sold in Montana must be stamped with a date 12 days after pasteurization. If the milk hasn’t been sold in 12 days, it must be pulled from retailers’ shelves.

Core-Mark International, a regional food distributor based in California, challenged the Board of Livestock’s 12-day “sell-by” date rule.

It contended that individual milk processors ought to be able to stamp their own expiration date on their milk containers. Core-Mark said this “open-code” milk dating method would be a more reliable and accurate tool for consumers than the current 12-day rule.

In his decision, Menahan said there was conflicting evidence on whether Core-Mark’s proposed method or the state’s current sell-by date rule was best for milk consumers and producers. The Board of Livestock was in the best position to make that judgment, Menahan said.

The Supreme Court agreed in a 5-0 decision written by Justice Jim Rice.

“Though the 12-day rule may not be the only permissible dating system, there is no doubt that the board had the authority under (a section of state law) to adopt a dating system,” Rice said.

Like Menahan, Rice said it was clear that persuasive arguments were made both for maintaining the current 12-day rule and for switching to the dating system advocated by Core-Mark.

Rice went on to list six arguments the Core-Mark had presented in favor of its proposal to change the milk dating system and then cited six reasons in support of the 12-day system.

“We cannot conclude the board’s decision to retain the 12-day rule was ‘random, unreasonable or seemingly unmotivated, based on the existing record,’” Rice said, citing another case. “Though evidence existed to support Core-Mark’s proposed dating system, it is not our job on a record like this to decide whether the board’s decision was the ‘correct’ option.

“Given that there was evidence to support the board’s decision, we affirm the District Court’s conclusion that the board’s decision was not arbitrary or capricious.”

Core-Mark had argued that the setting 12-day rule was beyond the Board of Livestock’s authority.

Rice disagreed, saying the board the legal authority to adopt rules it “considers necessary or proper” for controlling the standards of milk and its byproducts.

“Determining the length of time milk can be sold after processing is clearly with the statutory authority to ensure the standards of milk, and the requirement to label milk with a date allows consumers and the board to monitor a processor’s quality and standard,” Rice wrote.

Christian Mackay, executive officer for the Board of Livestock, said he was pleased by the decision.

“I think the courts have seen now that the board did in fact did their job and did properly contemplate the changes to the administrative rule and made their decision to keep the 12-day rule,” he said.

Core-Mark’s attorney could not be reached for comment.

A hearing officer for the state had recommended that 12-day rule be rejected and replaced by a system like that advocated by Core-Mark. The Board of Livestock rejected that recommendation in May 2012 and retained the 12-day rule.

Core-Mark sued following the board’s decision.

Copyright 2014 The Billings Gazette. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

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