In Court, “Sustainable” Brands Argue that Marketing Claims are Meaningless

February 19, 2020
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For 42 years, Ben & Jerry’s claimed its ice cream came from “happy cows.” But when the claim was challenged in court, the company backpedaled, exposing an industry rife with false advertising.

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In Court, “Sustainable” Brands Argue that Marketing Claims are Meaningless

For 42 years, Ben & Jerry’s claimed its ice cream came from “happy cows.” But when the claim was challenged in court, the company backpedaled, exposing an industry rife with false advertising.

Last month, Ben & Jerry’s revealed that it will no longer claim on its product packaging that its ice cream comes from “happy cows.” The company’s statement comes after being sued twice for deceiving consumers about its animal welfare policies.

At a time when consumers are increasingly looking at labels to see whether the conditions under which the animals were raised were humane or environmentally sustainable, Ben & Jerry’s retraction raises a troubling question: Do the companies slapping these labels on their products stand by their messages when challenged in court? In my experience, the answer to that question is usually no.

As a consumer protection lawyer, I have litigated false-advertising cases against some of the largest food companies in the world and against niche brands sold at high-end grocery stores. No two cases are the same, but there is one thing that almost every food company, when challenged, seems to assert: environmental and animal welfare claims, even if consumers rely on them, should be taken as meaningless.

The latest cases brought against Ben & Jerry’s address a prime example of deceptive—if effective—marketing. To consumers, Unilever—the massive food conglomerate that owns Ben & Jerry’s—projects images of cows on rolling green hills on every package of ice cream, and touts its “Caring Dairy” program across its website and social media. But in court, Unilever argued that, despite these claims, no “reasonable consumer” would believe that all the milk used in Ben & Jerry’s ice cream comes from farms with “more humane practices than ordinary farms.” Instead of standing by Ben & Jerry’s claims regarding “high quality animal care” and “sustainable practices,” Unilever wrote these claims off as “not fact-based promises.” And recently—instead of committing to improving its practices—Ben & Jerry’s revealed that it will simply get rid of the “happy cows” claims on its packaging.

Unilever’s strategy is not unique. In September, Nellie’s Eggs—one of the most prominent “free range” egg brands—argued that the label claiming “Blue Sky Above, Green Grass Below” says nothing about whether Nellie’s “hens are outside in the grass on sunny days.” The egg producer went on to assert that the advertising is not “a factual claim” that consumers should rely on.

Countless other companies have made similar arguments that might shock their customers. For example, Whole Foods Market has said its representations do not mean that its “meat is treated more humanely” than industry standards. Diestel Family Ranch, one of Whole Foods’ star meat suppliers, has argued that its ads were not misleading because there is no “standard for measuring whether something is thoughtful or unthoughtful, sustainable or unsustainable, farm or factory, and/or family or large business.”

Although companies state in court that consumers are not misled by their advertisements, the reality is that industrial food producers are knowingly exploiting animals and deceiving consumers. You don’t need to be an animal rights activist to understand that it’s inhumane to crush or grind up live animals, or to cram them by the thousands into disease-ridden warehouses with no access to the outdoors. Even federal judges have characterized standard commercial farming practices as “gruesome” and as “cruelty to animals.”

Unfortunately, at least when it comes to meat labels, the government actively provides companies with leeway to deceive consumers about these practices. A recent decision by the National Advertising Division of the Better Business Bureau determined that the USDA approved an “ethically raised” label without considering any “consumer perception evidence” regarding how the claim would be interpreted. This is consistent with a review published last year, which found that the USDA was unable to provide any evidence to substantiate claims made by half of the animal welfare-related labels that it approved from 2014 to 2018.

With the human population quickly approaching 10 billion, soon it may become clear that it is impossible to raise thinking, feeling beings for mass consumption in any sustainable or humane manner.

But even if you think that humane and sustainable animal agriculture is possible in the 21st century, ubiquitous disinformation from once-trusted brands shows how hard that is to find in practice. If we cannot trust how animal products are advertised, then our choices are to either (a) roll the dice on animal cruelty and environmental destruction, or (b) err on the side of caution by avoiding animal products.

With the stakes as high as they are, I hope that you’ll bet on plant-based food.

The views and opinions expressed in this article are those of the author and do not necessarily reflect the policy or position of his employer. 

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