In a complaint* vs Ben & Jerry’s filed on October 29 in Vermont, plaintiff James Ehlers alleged that, “Unilever has breached consumer trust by representing the Ben & Jerry's products as being made with milk and cream sourced exclusively from ‘happy cows’ on Vermont dairies that participate in a special, humane ‘Caring Dairy’ program…
“In reality," claimed Ehlers, "Only a minority percentage of the milk and cream in the products actually is sourced from these ‘happy cows’ on ‘Caring Dairy’ farms; the remaining milk and cream originates from factory style, mass-production dairy operations…”
Ben & Jerry’s sources its milk from the dairy co-op St. Albans, and as of January 2017 – within the class period cited in the lawsuit - fewer than 25% of the co-op’s members were verified ‘Caring Dairy’ farms, claimed Ehlers.
Setback for Unilever in earlier, near-identical, lawsuit
The lawsuit – a proposed class action filed in Vermont – echoes claims made in a near identical suit** vs Ben & Jerry’s filed in D.C. by the same law firm (Richman Law Group) last year on behalf of nonprofit the Organic Consumers Association, which sought injunctive relief, but no financial rewards.
While the first case is still proceeding through the courts, Ben & Jerry’s experienced a setback in January 2019, when Judge Neal E. Kravitz rejected its motion to dismiss the suit, arguing that, “a reasonable consumer could plausibly interpret Ben & Jerry’s labeling and marketing as affirmatively (and inaccurately) communicating that the company’s ice cream products are sourced exclusively from Caring Dairies and/or other humane sources.”
Ben & Jerry’s: ‘Committed to building a resilient, regenerative dairy supply’
Ben & Jerry’s PR director Sean Greenwood said the company doesn’t comment on pending lawsuits, but told us that Ben & Jerry’s was “committed to building a resilient, regenerative dairy supply.”
He did not say what percentage of the milk in Ben & Jerry’s products was sourced from farms adhering to the Caring Dairy standards, but added:
“Our vision for the future is that all dairy used by Ben & Jerry’s comes from farms that have thriving livelihoods for farmers and farm workers; the highest standard of care for cows; feed grown ecologically, without the use of harmful chemicals; and reduced greenhouse gas emissions, where the farm operations act as a “carbon sink.”
‘You will most certainly see more cases like this in the dairy and egg markets’
So what do legal experts make of the lawsuit?
Ryan Kaiser, managing partner at law firm Kaiser IP, LLC, which is not involved in this case, said that the recent wave of lawsuits over animal abuse allegations at Fairlife supplier Fair Oaks Farms coupled with the Tillamook lawsuit highlight the need for greater specificity in product labeling and marketing around animal welfare standards and milk/meat/egg sourcing policies.
He told FoodNavigator-USA: “I’ve definitely seen an uptick in the number of ‘animal welfare’ type consumer class action cases in recent years due to a growing consumer preference for food products derived from humanely treated animals.
“Unfortunately for brands, change takes time and costs a lot of money. Brands like Ben & Jerrys 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.
“Nevertheless, you will most certainly see more cases like this in the dairy and egg markets. Class action plaintiffs (and their attorneys) thrive in areas of ambiguity and undefined terms. Any case where the Plaintiff’s attorney can argue that the ‘consumer’s perception’ will be this or that, is a case that avoids early dismissal, and thus has better likelihood of an expensive settlement for the lawyers.”
‘Ben & Jerry’s would have been well-advised to specify clearly that only a portion of their milk came from cows from the Caring Dairy program’
In these types of cases, said Kaiser, “Brands can do well by setting specific criteria for what is meant by happy cows, or chickens, or what have you. Namely, use of thorough and well-regarded certification programs can go a long way to help in these instances. Brands can then point to a set “standard” (i.e. the certification standard), and say that they meet those standards. There is no subjectivity to it.
“In the Ben & Jerry’s case, they would have been well-advised to specify clearly that only a portion of their milk came from cows from the Caring Dairy program, thereby cutting off the Plaintiff’s ability to claim that they implied that ‘all’ of their milk came from that program. Unfortunately, there will now be a long and expensive case with consumer perception experts arguing over whether the marketing in question in fact implied that 'all' cows were in the program.”
How might Unilever defend this case?
As for defense strategies, he said, “I’d imagine you’ll see [Ben & Jerry's brand owner] Unilever argue a couple things. In addition to arguing that their marketing doesn’t imply that ‘all’ milk comes from the Caring Dairy program, I would expect a lot of argument that the plaintiffs can’t establish commonality and typicality. Is humane treatment of the cows really material to all the purported class members?
“While I’m sure many Ben and Jerry’s customers do care about the treatment of the cows, I’d imagine a great many of them just like the taste of the ice cream and don’t really care if the cows that made it are happy or come from Vermont.”
Another angle of attack will certainly be the fact that many of the claims at issue don’t appear on the label, but on a website that a consumer who sees the label must then visit, he added (see the label above).
“Unilever will argue that the plaintiff can’t prove who saw the label then went to the website then read the challenged claims and relied on them before making the purchase.”
Adam Fox, partner at law firm Squire Patton Boggs, added: "It is not at all clear that any significant portion of the putative class ever even went to the website, let along made purchasing decisions based on those representations—as opposed to doing so based on things like the taste, mouthfeel and whimsical naming conventions."
Do consumers make purchasing decisions based on the claims at issue?
William C. Acevedo, partner at law firm Wendel Rosen LLP, said Unilever could pursue multiple defence strategies, but would need to first define what a 'win' for the company might mean in the context of this case.
"Ben & Jerry’s might attempt to show that the prospective class is undermined by the predominance of individual issues. Maybe not every consumer purchased the product because of the challenged claim; maybe they just really like the ice cream’s flavor? On the other hand, maybe the claim lacks substantiation and the matter should be settled before the price of doing so gets too high?"
*The case is James Ehlers et al v Ben & Jerry’s Homemade, Inc. and Conopco, Inc. d/b/a Unilever United States. Case # 2:19-cv-00194 filed in Vermont October 29, 2019
**The case – filed in the Superior Court of the District of Columbia in May 2018 - is The Organic Consumers Association v Ben & Jerry’s Homemade, Inc. and Conopco, Inc. d/b/a Unilever United States. Case No. 2018 CA 004850 B