A Washington, D.C., judge denied a motion to dismiss and allowed a false advertising suit accusing Ben & Jerry’s of deceiving consumers about the treatment of their cows to move forward.
Last summer, the Organic Consumers Association (OCA) sued the ice cream maker and its parent company, Unilever, over the claim that its products are humanely sourced and environmentally responsible. The group alleged that the defendants touted their ice cream as being produced by “happy cows” raised in “caring dairies” in contrast to factory-style, mass-production dairy operations. In reality, the milk comes from large farm operations with concentrated animal feeding and contains traces of the herbicide glyphosate, the OCA said.
The defendants moved to dismiss the case, arguing that no reasonable consumer would conclude that ads with “happy cows” meant that none of the cows lived at mass-production farms.
But the court disagreed, finding that the complaint was not limited to a challenge of unquantifiable representations about the “happiness” of cows.
“To the contrary, the complaint alleges that fewer than 100% of Ben & Jerry’s partner farms are ‘Caring Dairies’ even though content on Ben & Jerry’s website suggests that all farms supplying ingredients are in the program,” Judge Neal E. Kravitz wrote. “Taken together with the complaint’s references to Ben & Jerry’s general messages about humane treatment of cows and ‘values-led sourcing,’ the allegations concerning the misleading suggestions of full participation in the Caring Dairies program are sufficient to state a claim of misleading labeling and marketing, since a reasonable consumer could plausibly interpret Ben & Jerry’s labeling and marketing as affirmatively (and inaccurately) communicating that the company’s ice cream products are sourced exclusively from Caring Dairies and/or other humane sources.”
As for the environmental responsibility claims, Ben & Jerry’s told the court that no reasonable consumer would view its environmental advocacy as a guarantee that its products contain no glyphosate, which it characterized as a “ubiquitous herbicide.”
OCA countered that the defendants were again taking too narrow a reading of the complaint and that the ice cream maker’s environmental marketing, taken as a whole, misleads consumers into believing Ben & Jerry’s ice cream products contain no chemicals that harm the environment.
Judge Kravitz sided with the plaintiff, finding the facts alleged in the complaint provide sufficient support to plausibly claim that consumers would be misled, as it identified specific representations and did not rely upon vague commitments to environmentalism and sustainability.
“For example, in addition to phrases like ‘promoting business practices that respect the Earth and the Environment’ and ‘high standards for environmental practices,’ the complaint identifies specific messages related to the purity of Ben & Jerry’s products like ‘values-led sourcing’ and advocacy for transparency in labeling (‘Labelize it!’),” the court wrote.
The court also rejected the defendants’ federal preemption argument that the relief sought by the OCA would interfere with the Federal Insecticide, Fungicide, and Rodenticide Act, as well as the Food, Drug and Cosmetic Act. In addition to indicating that dismissal of a suit on preemption grounds based on arguments about potential relief was “premature,” Judge Kravitz reiterated that the complaint focused on Ben & Jerry’s advertising message as a whole.
To read the order in Organic Consumers Association v. Ben & Jerry’s Homemade, Inc., click here.
Why it matters: The D.C. court repeatedly emphasized that the complaint challenged the messages delivered by Ben & Jerry’s advertising as a whole and rejected the defendants’ narrow reading of the claims.