New False Advertising Lawsuits: Cows and Corn

Advertising Law

Unhappy cows and confusion over “SuperStarch” form the basis of recently filed false advertising class actions.

In its Washington, D.C., state court complaint, the Organic Consumers Association alleged that Ben & Jerry’s Homemade and its parent company Unilever touted their ice cream products as being produced by “happy cows” raised in “caring dairies,” in contrast to factory-style, mass-production dairy operations.

But the products actually include milk that comes from large farm operations and concentrated animal feeding operations that engage in cow confinement and extensive antibiotic use, the nonprofit group said. The plaintiff alleged that the milk used in the products is sourced through a dairy cooperative based in Vermont with more than 360 members, of which fewer than 25 percent (90) are verified “Caring Dairy” farms, and that the cooperative does not distinguish or separate the two different types of milk.

“The green fields and grazing of ‘happy’ cows shown on the Products misrepresent the kind of industrial dairy practices employed at the [cooperative farms] that supply ingredients found in the Products,” the Organic Consumers Association said.

The defendants also generally promote the products as humanely sourced and environmentally responsible, according to the complaint, with claims that they “respect the Earth and the Environment,” are made with “values-led sourcing,” and are part of “Ben & Jerry’s … long history of fighting for climate justice and finding ways to reduce the environmental impact of our business.”

Again, the Organic Consumers Association disagreed, alleging that in spite of these claims, some of the defendants’ products contain glyphosate and that the mass-production dairy operations used to source milk “have negative implications for both animal-husbandry and the environment.”

“In sum, Unilever is building on Ben & Jerry’s reputation as an environmentally responsible company to deceive consumers into believing that the Products are made with humane and environmentally responsible practices,” the group told the court. “No reasonable consumer who sees Unilever’s Caring Dairy Representations that reference ‘happy cows’ and ‘Caring Dairy’ practices would expect the Products to be made with dairy produced on regular factory-style, mass-production dairy operations.”

The allegedly false and misleading representations and omissions violate the District of Columbia’s Consumer Protection Procedures Act, the plaintiff charged. It requested injunctive relief, corrective advertising, and costs and attorneys’ fees.

Meanwhile, Kevin McCann sued The UCAN Company over the marketing of its sports performance products in Illinois federal court. According to the complaint, the defendant claimed its protein drink mixes and snack bars are powered by “SuperStarch,” a “revolutionary, all-natural carbohydrate … which produces ‘sustained energy,’ ‘optimized performance,’ ‘enhanced fat burn’ and ‘speedier recovery,’ all without the harmful and performance-impairing side effects associated with gastrointestinal distress.”

“In reality, according to laboratory tests and peer-reviewed results, ingesting the Products at recommended rates before and during exercise does not enhance performance and, in fact, impairs performance due to Product-induced increases in gastrointestinal distress.”

SuperStarch is just corn, the plaintiff told the court, and the defendant’s marketing ploy lacks any kind of scientific backing. Links to various white papers found on the defendant’s website rely on “internal experiments” authored by a member of the defendant’s Advisory Board that fail to disclose whether the research was carried out properly.

The one link to reliable scientific evidence actually failed to support the defendant’s claims, the plaintiff added, as its study demonstrated that “no reliable performance differences” exist between the SuperStarch users and comparative groups.

McCann seeks to certify a nationwide class as well as a consumer fraud multistate class (estimating potential plaintiffs to number in the “thousands to millions”) for compensatory damages, punitive and/or exemplary damages, and other equitable relief.

To read the complaint in Organic Consumers Association v. Ben & Jerry’s Homemade, Inc., click here.

To read the complaint in McCann v. The UCAN Company, click here.

Why it matters: False advertising class action plaintiffs continue to find new and creative ways to make it to court, from actions based on the happiness of cows to the scientific backing for protein drink mixes and snack bars.



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