“Happy cows” and claims of false advertising are back in the news. Back in the early 2000s, here in California, the animal-rights advocacy group, People for the Ethical Treatment of Animals (“PETA”) accused the California Milk Advisory Board of false advertising with respect to their “happy cows” advertising campaign. The commercials came with the slogan that many of us remember: “Great cheese comes from happy cows. Happy cows come from California.” That lawsuit was dismissed since, as a government agency, the Milk Advisory Board was exempt — at the time — from the false advertising laws. See LA Times article here.

PETA tried again a few years later under different and new laws and legal theories. Again, the target was the Milk Advisory Board and the California Department of Food and Agriculture. PETA claimed that the still-ongoing ad campaign was misleading and that the Board was “lying about the condition of actual cows at actual California dairies.” However, again the lawsuit was dismissed. See news report here. In that case, a Sacramento judge ruled that the advertisements were “general assertions” about how dairy farmers care for their cows, not “factual representations of the health status and comfort level of the cows.” General assertions go under the legal term “puffery” where consumers are expected to understand that the phrase is not to be taken literally.

Now, on the east coast, a different consumer group — the Organic Consumers Association (“OCA”) — has brought a “happy cows” lawsuit. In mid-July 2018, the OCA filed suit against Ben & Jerry’s and its parent company, Unilever. Like the earlier Milk Advisory Board campaign here in California, Ben & Jerry’s has marketed its “Homemade” brand of ice cream as containing dairy products produced by “happy cows” raised on “caring dairies.” The new lawsuit — see report here –claims that this campaign is false advertising and misrepresentation. According to the suit, Ben & Jerry’s/Unilever source their milk products through a Vermont dairy cooperative that contains about 90 dairies that are certified as “caring” and about 270 dairies that do not have the designation. The cooperative does not separate or distinguish the products coming from the two sources. The OCA claims that the non-caring diaries engage in factory-style production techniques with excessive cow confinement and extensive use of antibiotics. Further the OCA claims that the Ben & Jerry’s cartons have false depictions of “happy cows” grazing in spacious, nearly empty green fields. This, according to the OCA, misrepresents the kind of industrial dairy practices employed by the majority of the farms in the cooperative.

The OCA believes that its lawsuit will be more successful than the earlier cases filed here in California by PETA because the “caring dairies” designation is not merely a general statement or “puffery.” Rather, the designation is given by Unilever to various dairy farms that comply with standards created by Unilever and promoted on Unilever’s and Ben & Jerry’s websites (and on the packaging).

San Diego Corporate Law: Thoughts on OCA’s Lawsuit and California Laws

We here at San Diego Corporate Law will be watching the OCA’s lawsuit with interest even though the case is pending in a Washington DC court. Here in California, several laws prohibit false advertising and deceptive business practices including the following:

  • California Unfair Competition Law of 1872, Cal. Bus. & Prof. Code §§ 17200 et — prohibiting unfair business acts or practices and unfair, deceptive, untrue, or misleading advertising
  • California Consumers Legal Remedies Act, Cal. Civil Code §§ 1750 et seq. — prohibiting specific types of business practices such as false statements with respect to the source of good or services, their newness, etc.
  • California Business and Professions Code § 17500 et seq. — prohibiting generally false statements in advertising

There are also federal statutes prohibiting false advertising like the Federal Trade Commission Act.

Based on how California courts have defined and interpreted “false advertising,” if the Ben & Jerry’s case were filed here, the OCA would have a decent chance of victory because the “caring dairy” designation has an industry meaning, standards and is verified, and in this use, “caring dairies” is used to impart information to consumers beyond vague “puffery.” If it were shown that the designation was created by a company and then used by that company as an advertising mechanism, this would strengthen the case against the company creating and using the designation.

Contact San Diego Corporate Law Today

If you want more information on legal issues with respect to advertising and false advertising, contact attorney Michael Leonard of San Diego Corporate Law. Mr. Leonard provides a full panoply of legal services for San Diego and California businesses. Mr. Leonard has been named a “Rising Star” four years running by SuperLawyers.com and “Best of the Bar” by the San Diego Business Journal. Mr. Leonard can be reached at (858) 483-9200 or via email.

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