Consumer Law

Suit says Ben & Jerry’s claims of 'happy cows' from 'caring dairy' program are deceiving consumers

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A would-be class action lawsuit says the Ben & Jerry’s ice cream company is misleading consumers when it touts its milk and cream come from “happy cows” on "caring dairy" farms.

The Oct. 29 suit says that, in reality, only some of the milk comes from the “caring dairy” program, and the rest comes from “factory-style, mass-production dairy operations.”

The Boston Globe and the Burlington Free Press have coverage.

Ben & Jerry’s parent company Unilever is capitalizing on the good reputation of the ice cream company’s founders as “socially and environmentally conscious,” according to the suit.

The suit was filed in Vermont federal court by James Ehlers, an environmentalist and former Vermont gubernatorial candidate.

Ben & Jerry’s packaging says its milk and cream come from “happy cows” and directs consumers to learn more at its website. Visitors there are told that happy cows are part of a caring dairy program that helps “farmers move toward more sustainable practices,” the suit says.

Until recently, the website said the caring dairy standards are required for all farmers, the suit says. It points to this subhead to a section describing the program: “Basic standards for being a Caring Dairy farmer (required for all farmers).”

The suit alleges violation of Vermont’s Consumer Protection Act, breach of express warranty and unjust enrichment.

A separate lawsuit filed in July 2018 also disputes the “happy cows” and “caring dairies” claims, according to the Boston Globe. That suit, filed by the Organic Consumers Association, alleges deceptive labeling and marketing.

Unilever said in a statement that it thinks its caring dairy program is the “most progressive in the industry.” “In general, we are proud of the work we’ve done with Vermont’s family farmers over the past 35 years,” a company spokesman told the Boston Globe in a statement. A superior court judge in Washington, D.C., refused to dismiss the suit earlier this year.

In court documents, Ben & Jerry’s says its caring dairy statements are “firmly held beliefs and aspirations” rather than fact-based promises.

Alexandra Roberts, a law professor at the University of New Hampshire, notes that suits brought under Vermont consumer law have to show that a representation or omission is likely to mislead reasonable consumers, and that the representation or omission is material.

“It’s not enough to show Ben & Jerry’s lied about what kind of farms their milk and cream come from and how those farms treat their cows,” Roberts told the Boston Globe. “A court would also have to find that class members who bought Ben & Jerry’s ice cream would likely have chosen a different brand had they known the truth.”

Hat tip to How Appealing.

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