Ryan Kaiser, attorney at Kaiser IP (who does not represent any of the parties in these cases), was speaking to FoodNavigator-USA after Fairlife was hit with a series of lawsuits* following allegations of animal abuse at Fair Oaks Farms in northwest Indiana, which used to supply some of its milk.
The cases were filed after non-profit animal welfare group Animal Recovery Mission released harrowing videos from an undercover investigation of Fair Oaks Farms showing animals being mistreated, which prompted Fairlife to suspend deliveries from the farm and step up audits at all of its other milk suppliers. Several retailers have also removed Fairlife from shelves.
Kaiser – who noted that Fairlife actively promoted its animal welfare credentials on pack and in its marketing communications - said: “I expect there will be quite a bit of fall-out from this, and there will be follow-on suits from the animal rights activist groups to come.”
‘There would seem to be a good case for liability’
Asked about the strength of the case against Fairlife, he added: “There would seem to be a good case for liability. While the term ‘humane; may be a subject for interpretation, I’m fairly confident that a jury seeing video of the abuse would conclude that the treatment was not humane.”
He added: “As a class action, I suspect some of the key issues will be the exact wording of the advertising claims, the number of suppliers in Fairlife’s supply chain, and the steps Fairlife took to monitor its vendors.
“Obviously if Fairlife actively touted the comprehensiveness of its oversight and quality control in its advertising, then they will need to prove that they actually took the steps they advertised they were taking to ensure the wellbeing of the animals on their supplier farms.
"Were they actively monitoring and conducting audits? Were the audits effective? Was the conduct at issue an isolated incident which would not be easily detectable under the audit procedure in place? Were the audit procedures reasonable?
“If this case doesn’t settle quickly, there will be a lot of paperwork for the lawyers on both sides to sort through.”
What’s the scope of the class?
Assuming Fairlife has many suppliers, and if the abuse documented in the activists' videos was isolated to a single supplier (Fair Oaks Farms), it becomes an issue of properly defining the scope of the class of plaintiffs, he said.
“If Fairlife did everything right, and Fair Oaks was an isolated incident – a bad apple – then was there any harm to a plaintiff who bought milk that was sourced from a farm that was fully compliant with humane standards? Probably not.
“I’ve seen plaintiff’s attorneys in similar cases argue that incidents like this cause harm to the industry as a whole – undermining the integrity of the market for humanely sourced foods. There may be some degree of truth to that, but I’m not sure that it’s the kind of harm that can be compensated by a consumer class action.”
Another food law attorney, who asked not to be named, explained that the litigants were not suing the company for animal cruelty, but for false advertising, in that they paid a premium for products in reliance on packaging claims that Fairlife provided 'extraordinary care' for its dairy cows, "but that these claims were false and they consequently suffered economic loss."
He added: "Consumers probably would lack standing to sue Fairlife or the suppliers directly for animal cruelty because they do not have a legally protected interest in how Fairlife and the suppliers treat the animals."
As for the scope of the class, even if milk from all Fairlife suppliers "goes into the same pot so that it is all processed together," a plaintiff might have a hard time proving that the milk he or she purchased came from an abused animal, he added.
"This is because the news footage may document abuses of particular animals at specific times, but it probably is not sufficient to show a pattern and practice. One of the lawsuits alleges that 'As a matter of routine and practice, Fairlife’s cows are tortured...' but this would be hard to establish in court."
Fairlife ‘taking immediate action’
About a dozen retailers have pulled Fairlife from their shelves, including Jewel-Osco, Tony’s Fresh Market and Pete’s Fresh Market, while the Newton County Sheriff’s Office has also announced charges against three workers identified in the video as participating in the abuse, but not against Fair Oaks Farms directly.
In an email to FoodNavigator-USA, Fairlife said: “We are aware of the lawsuits and are reviewing them. Fairlife is committed to the humane and compassionate care of animals. As we previously shared, we are taking immediate actions to ensure our high standards of animal welfare are being executed at each of our supplying farms.” Read more HERE.
Coca-Cola has not responded to a request for comment on the lawsuit in which it is named as a co-defendant (see below), but released a statement on June 6 saying that it was conducting “independent investigations of all fairlife’s dairy suppliers to ensure they uphold the highest standards of animal welfare.”
*The complaints are:
- Alain Michael et al v Fairlife LLC, Mike Mccloskey and Sue Mccloskey 1:19-cv-03924 filed in the Northern District of Illinois June 11, 2019. The plaintiff is represented by McMorrow Law, P.C and Bursor & Fisher, P.A
- Andrew Schwartz and Alice Vitiello et al v Fairlife LLC 1:19-cv-03929 filed in the Northern District of Illinois June 12, 2019. The plaintiffs are represented by Wolf Haldenstein Adler Freeman & Herz LLP
- Eliana Salzhauer et al v The Coca-Cola Company and Fairlife LLC filed in the Northern District of Georgia 1:19-cv-02709 filed June 13, 2019. The plaintiffs are represented by Doffermyre Shields Canfield & Knowles, LLC, Dicello Levitt Gutzler LLC And Pearson, Simon & Warshaw, LLP.
- Mohammad Sabeehullah and Nabil Khan et al v Fairlife LLC, Mike Mccloskey and Sue Mccloskey 2:19-cv-00222 filed in the Northern District of Indiana June 17, 2019. The plaintiffs are represented by Saeed & Little, LLP and Paul LLP.
Fairlife milk is made via a filtration process that separates milk into water, fat, protein, vitamins & minerals, and lactose (milk sugar) and then recombines them in different proportions to produce lactose-free milk with 50% more protein, 30% more calcium and 50% less sugar than regular milk.
Founded by Indiana dairy farmers Mike and Sue McCloskey in 2012 as a joint venture between The Coca-Cola Company and Select Milk Producers (a co-op of 99 family-owned farms that was started by the McCloskeys in 1994), Fairlife rolled out nationally in the US in December 2014.
The brand recently announced plans to build a $200m, 300,000-square-foot facility near Phoenix, Arizona that's slated to be operational in the second half of 2020. It is also investing $85m in a new production facility in Peterborough, Ontario, also due to start operations in 2020.