AUGUSTA – The giant chemical maker Monsanto has failed in its attempt to convince the state of Maine to abandon its Quality Trademark Seal program for milk, which the state adopted in 1994.

Maine Attorney General G. Steven Rowe has informed Monsanto that the use of the seal is entirely appropriate for the Maine milk market. “Consumer choice is not impaired in any way,” Rowe told Monsanto. “Rather, consumer choice is broadened.”

Monsanto had requested that the use of the seal be suspended and legal proceedings brought against Oakhurst and H.P. Hood for alleged unfair trade practices. The chemical company maintained that use of the seal, which indicates that milk does not contain artificial growth hormones, misleads consumers into thinking that hormone-free milk is superior to milk from producers using rBST, a Monsanto-produced artificial growth hormone. Monsanto said that using rBST in cows is a marketing issue, not a food safety issue.

Industry experts suggested that even though the seal has been used for nearly 10 years by Oakhurst, Monsanto was objecting now because other dairies are also joining the program.

Some organizations and consumers who oppose the use of artificial growth hormones claim they are linked to breast cancer and premature puberty in children. Canada and the European Union have banned the use of rBST since it was approved for use by the U.S. Food and Drug Administration in 1993.

Rowe informed Monsanto earlier this month that the Quality Seal requirements are being met by all producers that use it. Rowe also said that providing the information on the label is just giving consumers a choice.

Maine’s Agriculture Commissioner Robert Spear agreed. “The dairy Quality Trademark Seal was a compromise. Instead of either banning the use of growth hormones or endorsing their use, producers could take a stand via the Quality Seal,” he said.

“We agree that advertisements that make specific health claims about rBST or the lack of rBST could be misleading unless they are substantiated by competent scientific or medical tests or studies. However, the mere statement that a product comes from cows not treated with rBST or artificial growth hormones, however, is not a health claim requiring substantiation,” the letter from Rowe to Monsanto stated.

The trademark consists of a silhouette of the state of Maine divided into three horizontal sections, with the word “Quality” appearing in the middle section.

“The state of Maine Quality Trademark, in and of itself, is not misleading to consumers,” Monsanto was told. “Nor do we believe that advertising milk as having come from cows that have not been treated with rBST or artificial growth hormones is misleading to consumers. Such statements do not constitute health claims of any sort. This advertising simply allows consumers, who are interested for any reason in buying milk that is not produced from cows treated with rBST, to make an informed decision.”

Rep. Nancy Smith, D-Monmouth, said the ruling by Rowe “is a great victory and should be shouted from the rooftops. This is a major victory for Maine’s milk producers and an integral part of marketing Maine milk.”

Jodie Bernstein of Bryan Cave law firm of St. Louis represents Monsanto, the Biotechnology Association of Maine and three dairy farms. Recognizing that consumers may not even be aware that the small seal on milk labels indicates rBST-free milk, Bernstein said Tuesday that “it’s not the seal the coalition was objecting to but rather the criteria for using the seal.”

Bernstein’s position is that since the state accepts affidavits from farmers that they are not using rBST, there is not an adequate monitoring system in place.

In addition, said Bernstein, the U.S. Food and Drug Administration has recommended that any label that says the product is rBST-free should appear in the proper context with accompanying information, such as “no significant difference has been shown between milk derived from rBST-treated and non-rBST-treated cows.” FDA also recommends that such a statement should be conspicuously placed on the product label.

“The coalition, although disappointed, remains committed to promoting a nonmisleading label,” said Bernstein. She said that taking legal action against dairies that say their milk is rBST-free on their labels and in their advertising “is still under consideration, but we are not to that point yet.”

Monsanto notified Maine in November and December 2002 that it wanted the seal dropped. The company raised three issues: whether the requirements established by the Maine Department of Agriculture’s rules for the use of the trademark are being met by the dairies that are licensed to use it; whether the trademark and-or the advertising by these licensed dairies are misleading to consumers by creating a false impression that milk produced without the use of rBST is safer or of higher quality than milk produced with its use; and whether the trademark unfairly limits or otherwise unlawfully restricts market access.