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‘This is not puffery… this is a misleading claim’

Judge orders Arla Foods to halt ‘Live unprocessed’ campaign: ‘Ads create false impression that rbST is something foreign and dangerous’

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By Elaine Watson+

15-Jun-2017
Last updated on 21-Jun-2017 at 16:09 GMT2017-06-21T16:09:47Z

Judge Griesbach: ‘Regardless of how consumer interest is trending, advertisements may not make false or misleading statements of fact.' Picture: Screengrab from Arla's Live Unprocessed rbST ad
Judge Griesbach: ‘Regardless of how consumer interest is trending, advertisements may not make false or misleading statements of fact.' Picture: Screengrab from Arla's Live Unprocessed rbST ad

Arla Foods has been ordered to halt its new $30m ‘Live Unprocessed’ ad campaign – which makes a virtue of using milk from cows that have not been fed the growth hormone rBST - in the wake of legal action* filed by rbST maker Eli Lilly (Elanco).

In a court order issued Thursday June 15, US district court chief judge William C. Griesbach granted a request for a preliminary injunction to stop Arla from claiming that dairy products using milk from cows supplemented with rbST are dangerous or unsafe; of lesser quality or less wholesome than, or substantially compositionally different from, other dairy products; or that rbST is an ingredient added to some dairy products.

However, he rejected Eli Lilly/Elanco’s requests for corrective ads.

He explained: “When the entire commercial is watched in context, it first creates the false impression that rbST is something foreign and dangerous, and then repeatedly emphasizes the notion that consumers should buy Arla cheese precisely because it comes from cows untreated with rbST and does not contain any ‘weird stuff.’ This is not puffery—this is a misleading claim.

"Arla's [Live Unprocessed] advertising campaign also falsely states that rbST is an ingredient that is placed in other companies’ cheese [when it is in fact a legally approved growth hormone supplement fed to cows produced and sold by Elanco under the brand name Posilac]."

'Regardless of how consumer interest is trending, advertisements may not make false or misleading statements of fact'

As for injury, he said, “Elanco has also presented confidential information which seemingly reveals that a major cheese producer is electing to terminate the use of rbST at least in part as a result of Arla’s advertising.”

The ad depicted rbST as a monster with razor sharp teeth and electric fur. While shoppers would not take this literally, the ad "conveys the misleading message that cheese from cows treated with rbST is dangerous, unhealthy, and something that you should not feel good about feeding to your family," said the judge

He also noted that issuing a preliminary injunction would only prevent Arla from using materials in the campaign that make false or misleading statements about rbST, and that there is "nothing to stop Arla from alerting consumers that its products come from cows not treated with rbST and using the FDA’s disclaimer in its advertisements."

But he added: “What Arla cannot do, however, is falsely imply or mislead consumers to believe that milk from cows treated with rbST is dangerous or otherwise unhealthy. That is precisely what Arla’s commercial does. Regardless of how consumer interest is trending, advertisements may not make false or misleading statements of fact.”

Recombinant bovine somatotropin (rbST) is an animal drug approved by FDA to increase milk production in dairy cows (it is also known as recombinant bovine growth hormone or rBGH).

In a March 2016 letter  responding to a citizen's petition calling for on-pack warnings about rBST, the FDA said: "FDA concluded that Posilac administered by subcutaneous injection as 500 mg of rbGH every 14 days, starting during the 9th to 10th week of lactation, is safe and effective for its intended use in healthy lactating dairy cows. In addition, the Agency found that there was no significant difference between milk from cows treated with rbGH and milk from cows that have not been treated with rbGH."

Read more HERE.

FDA concluded that rBST is safe and effective for its intended uses

Addressing claims made by Arla in its motion to dismiss the case that milk from cows treated with rBST had elevated levels of Insulin-like Growth Factor 1 (IGF–1), “a hormone linked to several types of cancers,” judge Griesbach said that experts testifying for Elanco noted that while milk from cows treated with rbST does have higher levels of IGF–1, there is “only a transient increase that is within naturally occurring levels, and that there is no evidence that milk from rbST-treated cows increases cancer rates in humans, results in programmed cell death, or increases twinning.”

In a 2016 response to citizen petitions on rBST, he added, the FDA concluded that rBST was “safe and effective for its intended uses and that there is no significant difference between milk from cows treated with [rbST] and untreated cows."

Arla Foods: We're 'extremely disappointed'

Arla Foods US CEO Don Stohrer Jr told FoodNavigator-USA that he was "extremely disappointed by today’s preliminary ruling and intend to appeal the judge’s decision,” but that he looked forward to "continuing to defend ourselves in this case."

He added: "As a 136-year-old dairy farming co-operative, Arla believes that the simpler things are, the better they are. The company prides itself on keeping its dairy products as simple as possible. People today are increasingly demanding simpler foods and more transparent food practices. As a farm-to-fridge co-operative owned by dairy farmers, we really take to heart values of animal welfare, food safety and environmental responsibility in making our great-tasting, exceptional cheese products.”

Elanco North America: 'Fearmongering does not benefit the public'

Eric Graves, president, Elanco North America, said: “Elanco is very pleased with the court’s decision in this case. As the court points out in its ruling, ‘fear-mongering’ does not 'benefit the public.’”

In a May 19 false advertising lawsuit* filed in Wisconsin, pharmaceuticals giant Eli Lilly and Elanco (a division of Eli Lilly) argued that Arla’s $30m multimedia Live Unprocessed campaign, launched in late April, presents the growth hormone as something scary, monstrous and unnatural.

It said: “Arla’s portrayal of rBST as a deadly monster is blatantly, and egregiously, false. rBST is not dangerous and is not something consumers should fear… In the 30-second television commercial that is the centerpiece of the campaign, Arla depicts rBST as an enormous, six-eyed monster with ‘razor-sharp horns’ and ‘electrified’ fur. Arla reinforces the core message that rBST is “dangerous” through an extensive, internet-based social media campaign that amplifies and repeats the commercial’s key images and messages.”

It added: “FDA and the State of Wisconsin have expressly determined that any advertisement that portrays a dairy product made from milk of cows that have received rBST supplements as unsafe or compositionally different from other dairy products is false and misleading. Arla’s ads ignore these proscriptions and, in doing so, violate both federal and state truth-in-advertising laws.”

In a press release issued after the lawsuit was filed, however, Arla US CEO Don Stohrer, Jr said that the allegations in the suit were “completely baseless and without merit,” and argued that “Live unprocessed is a philosophy that speaks to the increasing number of people today who are looking for ways to ‘unprocess’ their lives.”

Arla Foods is an international dairy company owned by 12,000 farmers from Denmark, Sweden, the UK, Germany, Belgium, Luxemburg and the Netherlands. Its brands include Arla, Lurpak and Castello.

Read more about the ad campaign HERE .

*The case is  ELI LILLY AND COMPANY and ELANCO US INC. v.  ARLA FOODS, INC. d/b/a ARLA FOODS INC., USA and ARLA FOODS PRODUCTION LLC,  Case No. 1:17-cv-703-WCG.

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1 comment

Thanks, Judge Griesbach

for doing the right thing by supporting "truth-in-advertising", and shame on Arla for its (imo) silly fear-mongering ad and denial of any wrongdoing. The war between fearful ignorance and knowledge will probably never be resolved, but the outcome of every battle is important. I'll hazard a guess that if consumers were ever to become sufficiently informed to no longer fear rBST, Arla's dairies would be more than happy to use it.

I can see why Arla is extremely disappointed: $30M is a lot to throw away on a misleading ad campaign. Couldn't that waste of money have been avoided by first consulting with American experts in false advertising in the food industry?

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Posted by David Stone
18 June 2017 | 02h332017-06-18T02:33:23Z

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