HELENA – A state judge Friday rejected a lawsuit by a California-based food distributor to throw out Montana’s long-standing “sell-by” date for milk, of 12 days after pasteurization.
District Judge Mike Menahan of Helena said Core-Mark International had not shown that the sell-by date was unreasonable or created any harm to consumers or competition, and therefore the rule stands
Menahan’s ruling upheld a 2012 decision by the state Board of Livestock to reject Core-Mark’s request to abolish the 12-day rule and let milk producers stamp their own expiration date on their milk, known as the “open code” method.
The board fairly considered the other dating method and chose to stick with Montana’s current rule, and state agency decisions should be given “deference” by the courts unless the agency acted illegally or arbitrarily, Menahan said.
“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.
Attorneys for Core-Mark couldn’t be reached for comment late 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, Calif., 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 12-day rule.
The rule requires all milk sold in Montana to be stamped with a date 12 days after pasteurization. Milk must be pulled from retailers’ shelves after the 12-day deadline.
While a state-hired hearings officer recommended the 12-day rule be repealed and replaced with expiration dating by individual dairies, the Board of Livestock rejected that recommendation in May 2012 and kept the 12-day rule.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 the state 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. Consumers will then know the date when the milk goes bad, while the 12-day rule doesn’t tell consumers that information, they said.
The 12-day rule also limits competition from out-of-state dairies and increases consumer cost, Core-Mark said.
Menahan said many of Core-Mark’s arguments aren’t supported by the record, noting that the company has expanded its own market to most of the state and increased its sales volume.