By Prof. Pamela A. Vesilind, Forum Contributor

A Vermont icon has become the latest target of a deceptive labeling and marketing practices lawsuit. Ehlers v. Ben & Jerry’s Homemade, Inc. alleges that Ben & Jerry’s and its parent company, Unilever, misrepresented the “sustainable agricultural practices” of its contributing dairies. At issue is Ben & Jerry’s Caring Dairy program, which rewards participating dairies for complying with various fair labor, environmental, and animal husbandry standards. These standards, according to Ben & Jerry’s, are in pursuit of “happy farmers,” a “happy planet,” and “happy cows.”

Vermont resident and 2018 gubernatorial candidate James Ehlers alleges that although only a fraction of the cow’s milk in Ben & Jerry’s products comes from Caring Dairy operations, consumers have been misled into reasonably believing that compliance with the program’s sustainability standards is compulsory. Further, Ehlers maintains, consumers rely on this fraudulent marketing in choosing Ben & Jerry’s products over other premium brands.

Ehlers is a reprise of a nearly identical suit filed in District of Columbia Superior Court by the non-profit Organic Consumers Association. Whereas OCA alleges violation of the D.C. Consumer Protection Procedures Act on behalf of its membership, Ehlers attempts to create a nationwide class of Ben & Jerry customers. As the plaintiffs in both suits are represented by the same New York-based law firm, it is safe to assume that OCA v. Ben & Jerry’s, which was filed in July, 2018, was a test case for Ehlers.

These deceptive labeling and advertising suits aren’t unusual. So long as greenwashing is profitable, consumers will challenge predatory marketing schemes. Upon reflection, though, two themes stand out.

‘Happy Cows’ is a Distraction

Print and social media were quick to nickname these suits as the “happy cows case[s].” Ironically, the Caring Dairy animal welfare considerations are minimal compared to the program’s environmental and labor standards, and especially when compared with third-party certification programs like Animal Welfare Approved and Certified Humane. Although Ben & Jerry’s sources eggs exclusively from Certified Humane egg providers, it asks relatively little from its dairy partners.

Yet Ben & Jerry’s has led the charge in characterizing these suits as being about “happy cows.” In its 12(b)(6) motion to dismiss OCA’s complaint, Ben & Jerry’s reframed and trivialized OCA’s claims, arguing that no reasonable consumer would interpret its Caring Dairy website claims to mean that the cows in question were indeed “happy.” Numerous consumer surveys suggest otherwise. This is precisely the type of claim that reasonable consumers accept as true—or at least more true than not.

In any respect, the happiness of Vermont’s cows was not the thrust of OCA’s claim. Instead, like Ehlers’s action, OCA focused on Ben & Jerry’s labeling and web site language that could reasonably be read to mean that all dairy suppliers were participants in the Caring Dairy program. This represents a plausible claim, declared Judge Kravitz in his order dismissing the defendants’ motion.

What these cases mean to Vermont

These cases resonate unsettlingly in Vermont. Ben and Jerry are Vermont’s super-groovy royalty. They are our socially- and environmentally-conscious, granola-eating, Grateful Dead-loving hippie uncles. (Disclaimer: I don’t know if any of these attributions are actually true.)

Painstakingly, Ehlers’s complaint struggles to distinguish Ben and Jerry, and Vermont, from Unilever. It recounts that when Unilever acquired Ben & Jerry’s, it got more than just a market-leading premium ice cream brand; it acquired Vermont’s wholesome dairy reputation and Ben & Jerry’s “goodwill . . . for being socially and environmentally conscious.” I have no reason to doubt this. But this narrative overlooks the $326 million purchase price paid by Unilever in 2000. By then, Ben & Jerry’s was no longer a crunchy little ice cream company.

And by then, we Vermonters were already watching the dairy industry collapse all around us. Our picturesque, bucolic dairies, where the cows graze outdoors (weather permitting), and the farmers milk their heifers sans robots, were becoming a thing of the past. In their places arose industrialized CAFOs—the only operators who could compete in what Ben & Jerry’s acknowledges is a “broken system.”

Among the remedies requested by Ehlers on behalf of the class: an injunctive order “requiring proper, complete, and accurate representation, packaging, and labeling” of Ben & Jerry’s products. In other words, he wants the truth. Until such time, I suggest he cozy up to one of Ben & Jerry’s Non-Dairy Pints.