A federal judge has dismissed a lawsuit against Ben & Jerry’s for allegedly engaging in false and deceptive marketing practices in its “happy cows” campaign.
Judge Christina Reiss Thursday dismissed the class action suit filed in November by former gubernatorial candidate James Ehlers.
The lawsuit had alleged that Ben & Jerry’s falsely marketed its ice cream as a sustainable product. Ehlers’ suit argued that the way the company’s milk is sourced is not in line with “happy cow” promotions, and that only a fraction of its farm suppliers met the “caring dairy” standards laid out on the company’s website.
In response, Ben & Jerry’s filed a motion for the claim to be dismissed.
The company argued that the claim was invalid for three reasons: that “happy cows” constituted opinion rather than fact, that neither the company’s cartons nor its website contained misleading statements about “happy cows” or “caring dairies,” and that a reasonable consumer would not consider the alleged misrepresentations to be material.
Reiss agreed on all counts. In her decision, she wrote that even Ehlers does not contest that “happy cows” amounts to a non-actionable opinion, and has acknowledged that his “true claim” focuses on the website’s representation that “caring dairy” standards are not required of all farmers whose cows provide milk for Ben & Jerry’s products.
Reiss wrote that although a reasonable consumer might take that to mean that the “caring dairy” standard applied to all farmers who supply Ben & Jerry’s, it might also be interpreted to apply just to those farmers who seek to have their farms designated as a “caring dairy.”
She wrote that the court need not rule on that issue, though, because the company’s website enumerates the basic standards to be considered a caring dairy farm.
Where Ehlers was correct, Reiss wrote, was his idea that reasonable consumers shouldn’t be required to search through a website and several social and environmental assessment reports, or SEARs, to clarify a heading on its webpage. However, Reiss noted that it would be “equally unreasonable” for a consumer to interpret a single phrase in a single heading without all the necessary context that went into that heading.
Reiss wrote that Ehlers couldn’t point to an actual misrepresentation made by Ben & Jerry’s, and that he instead relied exclusively on his own interpretation of a phrase he said gave the “impression” that all Ben & Jerry’s products are “sourced exclusively” from caring dairies.
That claim of exclusivity, Reiss noted, cannot be found either on Ben & Jerry’s ice cream cartons or its website.
“[Ehlers’] entire claim is grounded on a single phrase in a single heading on a multipage website which is neither false nor misleading when considered as a whole,” Reiss wrote.
And even if he could identify a false or misleading statement, Reiss concluded, the suit failed to adequately argue that any misrepresentation is “material” or “likely to affect the consumer’s conduct or decision with regard to a product.”
In response to the dismissal, a spokesperson for Ben & Jerry’s issued a statement saying the company stands behind its products.
“We believe the court reached the right decision in dismissing these meritless claims,” Sean Greenwood said. “We’re proud of the work we’ve done with Vermont’s family farmers over the past 35 years, and we believe our Caring Dairy program is one of the most progressive in the industry.”
Ehlers now has 20 days to amend his complaint. He declined to comment on Reiss’ decision, other than to say he is reviewing his options for amending the complaint with his lawyer this week.
Ehlers ran second in the 2018 Democratic primary for governor to Christine Hallquist, who lost to incumbent Republican Gov. Phil Scott in the general election.
