UPDATE: May 11, 2020: U.S. District Court Judge Christina Reiss dismissed the lawsuit, the Burlington Free Press reported. The judge said claims by plaintiff James Ehlers could not be proven because his argument relied on his own interpretations of the company's language.
- A Vermont man has filed a complaint against Ben & Jerry's stating that the company doesn't solely use milk and cream from "happy cows." The complaint alleges that, during the past several years, "Unilever has breached consumer trust by representing" that Ben & Jerry's products come from cows on Vermont dairies that participate in its "Caring Dairy" program. Instead, the company sources more than half its milk and cream from mass-production factory dairy farms, it claims.
- Plaintiff James Ehlers claimed in the suit, filed Oct. 29 in federal court in Burlington, Vermont, that the Unilever-owned ice cream maker has violated a state consumer protection law, deceived consumers and enriched itself by charging premium prices.
- Although the company doesn't discuss pending lawsuits, Ben & Jerry’s spokeswoman Laura Peterson told Reuters the company was "committed to building a resilient, regenerative dairy supply" and considered the "Caring Dairy" program to be "the most progressive in the industry." Ben & Jerry's requires farmers participating in the program to meet certain animal care, planet stewardship and worker standard requirements.
This is the second similar complaint lodged against Ben & Jerry's. The first, filed in July 2018 in a Washington, D.C., superior court by the Organic Consumers Association, claimed the company violated consumer protection laws by marketing its ice cream as sourced from farms practicing environmental and agricultural standards. The group also said some of Ben & Jerry's products contained detectable levels of glyphosate.
Ben & Jerry's sought to have that suit dismissed by asserting that no consumers would reasonably assume its on-package advertising regarding "happy cows" means that none of the animals lives on traditional farms. However, a judge denied the dismissal request in January and said the OCA's arguments were enough "to advance a plausible claim that consumers would be misled by Ben & Jerry's labeling and marketing regarding the sourcing of its ingredients." That case is still open, but the results could be similar to what ends up happening with the most recent one.
In a different case, the Tillamook County Creamery Association was sued this past summer by an animal rights group claiming the company misled consumers by marketing its milk as coming from pasture-raised cows on small family farms when most of its products come from 32,000 cows at a large industrial production facility.
It's hard to tell whether any of these lawsuits will prevail, but it's possible the publicity they engender could have a negative effect on the companies involved.
Animal welfare has become an increasingly important factor for consumers. A recent survey from Technomic and the American Society for the Prevention of Cruelty to Animals found 77% of consumers are concerned about animal welfare as it applies to their food.
Pressure from public criticism or potential sales losses could prompt a settlement before trial to prevent further scrutiny and additional legal costs. Legal experts told Dairy Reporter they have seen more complaints in the dairy and egg industries because of growing concerns about animal treatment.
"Unfortunately for brands, change takes time and costs a lot of money," Ryan Kaiser, managing partner at Kaiser IP, told the publication. "Brands like Ben & Jerry's who are clearly trying to do good and take steps in the right direction are being punished with suits like this for not being able to immediately scale their efforts."
The solution for now may be for manufacturing companies to be extra careful about how they advertise and market their products — and, in this instance, to be specific about exactly what their definition of "happy cows" may be. Ben & Jerry's could also decide to change its labeling to reflect how much of the milk and cream they use actually comes from "Caring Dairy" facilities.
Should the plaintiffs succeed in any of these recent cases, companies may be forced to make such labeling changes, which could be expensive and time-consuming. But, once a precedent is set, it may become easier for manufacturers to protect themselves from similar lawsuits going forward.