By: Michelle C. Pardo
Known for its “Dairy Done Right” marketing campaign, Tillamook County Creamery Association (“Tillamook”), which produces dairy products like cheese, yogurt, ice cream and butter, is the latest target of a consumer fraud lawsuit filed this week in Oregon state court (Multnomah County). Animal rights group Animal Legal Defense Fund (ALDF) is co-counsel to four Oregon residents and a class of similarly situated consumers who claim Tillamook uses deceptive representations when advertising and marketing its dairy products, which is likely to confuse or mislead customers.
According to the complaint, Tillamook “has engaged in a deceptive marketing campaign to convince customers that the dairy cows who provide milk for its products graze on pastures in Tillamook County” and that products are sourced from “small family farms whose traditional farming practices are better for the environment, the local community, and of course the cows than are the industrial dairy facilities.” Complaint at 1.
Rather than the anti “Big Food” company that Tillamook distinguishes itself from, plaintiffs allege that Tillamook utilizes practices common across the dairy industry and to which they claim are the antithesis of ethically or responsibly sourced product and do not prioritize animal welfare and environmental stewardship as much as small-scale farms. Plaintiffs claim that Tillamook sources upwards of two third of the milk for its products from a large, industrialized factory farm in Eastern Oregon, “a far cry from the rolling green hills for the Tillamook County family farms shown throughout Tillmook’s marketing campaign.” Id. at 2. Plaintiffs, who allege that Tillamook is “capitalizing on a sea change in consumer purchasing preference,” claim that Tillamook is not selling products from “small-scale farmers” but rather the type of farms that “contribute to corporate control of the food system”. Id. Under attack — Tillamook’s marketing campaigns that are “pervasively showing cows in open-air barns or on fresh, green pastures” and images of cows “being given personalized attention by the owners of these small farms and their families.” Id. at 18.
State consumer fraud laws have been a favorite tool of animal rights activists to try to cripple companies that produce food and beverages made from animals. Back in 2004, then Director of Litigation for ALDF, Carter Dillard, authored an article that called false advertising lawsuits “a rare, albeit roundabout, legal opening for animal advocates to deal with the issues of animal mistreatment” and encouraged these cases to be “sought out and exploited, if only to protect the ground that animal advocates have gained in the battle for consumer opinion.” C. Dillard, False Advertising, Animals and Ethical Consumption, Animal Law Review, Vol. 10, 25-62 (2004). In recent years, animal rights groups have focused their litigation efforts on companies that they perceive are popular with consumers and are delivering messages to consumers about positive animal welfare, environmental stewardship and the production of ethically-sourced products. Animal rights groups view this type of labeling and marketing as a threat to their mission – if consumers feel good about the products that they buy, they are less likely to abandon meat, dairy and other products that are eschewed by many animal rights activists. In connection with these agendas, they often pit “family farms” with those that are more industrialized or corporate-owned and push the theme that only small, family farms can possibly provide good animal welfare.
The Complaint against Tillamook contains very little information about the individual plaintiffs who have brought the lawsuit and whether they ties to ALDF or other animal activist groups. But, at least one of the plaintiffs, Tamara Barnes, is described in news articles as an “animal advocate” who has been involved in the no-kill animal shelters movement and spoke publicly about a former dust-up surrounding the termination of a county animal shelter employee who oversaw shelter operations during a time where neglect and abuse of animals occurred, according to the activists.
This isn’t the first cows-in-the-courtroom case that has garnered headlines. In 2012, a California judge dismissed a lawsuit brought by People for the Ethical Treatment of Animals (PETA) against the California Milk Advisory Board and the California Department of Food and Agriculture that alleged the “Happy Cows” ads by the milk board were deceptive and misleading because “most California dairy cows are subjected to physical and psychological pain and stress caused by intense and uncomfortable dairy practices.” The Sacramento judge ruled that PETA had failed to provide evidence that California dairy farms mistreat dairy cows.
Plaintiffs’ lawsuit seeks, among other things, restitution to the consumers that bought Tillamook’s products, a declaration that Tillamook violated the law, and injunction preventing Tillamook from continuing its unlawful practices, and the payment of attorneys’ fees.