Top court closes book on milk minimums in cheese

A court challenge by major cheesemakers against federal compositional standards for cheese in Canada is officially over, having gone as far as it can go.

The Supreme Court of Canada on Thursday dismissed — with costs — an application from dairy processing giants Saputo and Kraft Canada seeking leave to appeal a loss at the Federal Court of Appeal this spring.

The cheesemakers had gone in February to the appellant court aiming to overturn nationwide compositional standards for cheese that had come into effect in late 2008. The standards apply to cheese marketed in import, export or interprovincial trade.

The top court, as usual in such dismissals, did not comment on its decision. No formal comment was available Thursday afternoon from Kraft, Saputo or Dairy Farmers of Canada.

The regulations in question require that cheese imported into Canada or made in Canada and marketed in international or interprovincial trade to meet a minimum casein ratio and whey ratio.

The requirement means cheeses must have a certain percentage of casein content derived from liquid milks — not from other milk products, such as whey cream or milk powder.

Cheeses, under Canada’s standards, also must have a whey-protein-to-casein ratio no greater than the ratio of whey-protein-to-casein ratio of milk itself.

The federal amendments were first published in December 2007 to give cheesemakers time to adapt before the new rules took effect in late 2008.

Saputo and Kraft had claimed in February that the main purpose of the cheese regulations has been "to effect an economic transfer in favour of dairy producers to the detriment of dairy processors."

The companies previously claimed the new rules would increase their costs and raise the price of cheese to consumers, and predicted a $185 million annual boon to dairy producers from higher milk sales.

Appeal court Justice Robert Mainville shot down that argument in March.

Product standards, he ruled, almost always "incidentally affect how the concerned product will be produced," but "this does not mean that the standard is directed to production rather than to trade and commerce."

To decide otherwise, he wrote, "would result in the absurd proposition that no federal compositional standards could be adopted for food products marketed for import, export or interprovincial trade."

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