Patrons of Ben & Jerry’s ice cream should be familiar with Woody, the bovine mascot touted by the company as “the most interesting cow in the world.” Ben & Jerry’s packaging has long featured cartoon illustrations of Woody grazing beneath blue skies in bucolic green pastures. This past year, however, Woody ambled into the sights of the plaintiffs’ class action bar. Thankfully, she (and Ben & Jerry’s) emerged unscathed: the district court (D. Vt.) dismissed the case at the pleadings stage, affirming both the authority of district courts to dismiss implausible consumer protection claims and the requirement that plaintiffs seeking injunctive relief demonstrate a probability of future injury.
The Complaint and Motion to Dismiss
Until recently, the labeling on cartons of Ben & Jerry’s ice cream featured Woody next to a quote bubble containing the following statement: “We strive to make the best possible ice cream in the best possible way. We source Non-GMO ingredients, Fairtrade cocoa, sugar & vanilla, eggs from cage-free hens & milk & cream from happy cows. Learn more at benjerry.com.”
Photo credit: HappyFresh.
Consumers who took Woody up on her suggestion to visit Ben & Jerry’s website could learn more about the incentives offered to dairy farmers who chose to participate in the company’s humane “Caring Dairy” program.
In a putative nationwide class action filed late last year, the plaintiff argued that these aspects of Ben & Jerry’s labeling and marketing misled consumers into believing that the company sourced its milk and cream exclusively from “socially and environmentally conscious” dairy farms. See Ehlers v. Ben & Jerry’s Homemade Inc., 2020 WL 2218858, at *1 (D. Vt. May 7, 2020). The plaintiff claimed Woody’s reference to “happy cows” was “intended to project to consumers an ‘image of animal husbandry’ that [was] more environmentally friendly than typical mass dairy production.” Id. at *3. He further alleged that statements on Ben & Jerry’s website created the false impression that the company’s Caring Dairy program was “required for all farmers” supplying the company, when in fact many suppliers were “mass production facilities.” Id. at *2–3. The suit alleged false advertising in violation of the Vermont Consumer Protection Act (“VCPA”), breach of express warranty, and unjust enrichment. Id. The plaintiff sought an injunction requiring Ben & Jerry’s to remove the purportedly misleading statements from its packaging and website. Id. at *1.
In its motion to dismiss, Ben & Jerry’s argued that the plaintiff’s claims failed as a matter of law for at least three reasons. First, the label’s assessment of the disputed cows as “happy” was a non-actionable opinion statement. Because the plaintiff “could not take a cow’s deposition to ask how it feels,” any attempt to measure the happiness of a cow was “a classic example of subjective opinion or puffery that [was] ‘incapable of being substantiated or refuted.’” Def. Mot. to Dismiss at 2, 10 (quoting Geffner v. Coca-Cola, 928 F.3d 198, 200 (2d. Cir. 2019)).
Second, the company maintained that the plaintiff’s complaint had plucked certain statements on Ben & Jerry’s website out of context. The company pointed out that the website “expressly state[d] that farms join the Caring Dairy program ‘voluntarily’ and that ‘participating farms’ must meet the program’s requirements.” Id. at 13. After considering the website “in its entirety,” it was clear that “reasonable consumers would not be misled as to the nature of the Caring Dairy program.” Id. at 16.
Third, Ben & Jerry’s argued that the plaintiff lacked standing to seek an injunction requiring the company to change its packaging and the language on its website. Because the plaintiff had conceded that he “now knows that not all the milk and cream comes from Caring Dairy farms,” he “could not be misled again” and therefore could not establish the “real or immediate threat” of future harm necessary to pursue injunctive relief. Id. at 22. Further, by the time the plaintiff had filed his suit, Ben & Jerry’s had already removed the reference to “happy cows” from its packaging. Without the challenged statement, all that remained on the label was Woody herself, who had “no discernible expression at all.” Id. at 1.
The Court’s Ruling
The District Court for the District of Vermont (Reiss, J.) agreed with Ben & Jerry’s in all respects. The court first explained that a statement is actionable under the VCPA only “if it is likely to mislead a reasonable consumer.” Ehlers, 2020 WL 2218858 at *5 (cleaned up). The court noted that the plaintiff had not seriously disputed that the company’s reference to “happy cows,” without more, would constitute non-actionable puffery. Id. at *5. Instead, the plaintiff insisted that Ben & Jerry’s had materially misled consumers through a combination of (1) the “happy cows” language on the company’s packaging and (2) the website’s purportedly misleading “representation that ‘Caring Dairy’ standards are required of all farmers whose happy cows supply milk and cream for Ben & Jerry’s Products.” Id.
In rejecting this reasoning, the court emphasized that the statements referenced by the plaintiff were misleading only when “[r]ead in a vacuum.” Id. at *6. The court cited the Second Circuit’s recent instruction in Geffner that, “in determining whether a reasonable consumer would have been misled by a particular statement, context is crucial.” Id. at *5 (quoting Geffner, 928 F.3d at 200). The court agreed with Ben & Jerry’s that the company’s website, read “as a whole,” made clear that the Caring Dairy program’s eligibility requirements applied only to farms “that aspire[d] to achieve” status as a participating farm, and the site otherwise “describe[d] the Caring Dairy program as one that ‘participating farms’ join ‘voluntarily.’” Id. at *6. Because it would be “unreasonable for a consumer to interpret a single phrase in a single heading without reference” to the clarifying language found elsewhere on the website, the plaintiff had failed to allege a plausible violation of the VCPA. Id. For the same reasons, the court dismissed the plaintiff’s separate claims for breach of an express warranty and unjust enrichment.
Finally, the court agreed with Ben & Jerry’s that the plaintiff lacked standing to pursue injunctive relief. The court observed that the company “no longer uses the term ‘happy cows’ on Ben & Jerry’s ice cream cartons” and had removed the challenged language from its website. Id. at *11. In light of these changes, the court held that “any possibility of future deception of Plaintiff in a similar way to the harm alleged in the Complaint is non-existent.” Id.
Key Takeaways
The court’s decision in Ehlers continues a growing trend among federal courts to dismiss implausible false advertising claims at the pleadings stage. As we have previously written, courts have sometimes held that “[w]hether reasonable consumers would be deceived by a challenged advertisement is a question of fact that can’t be decided on a motion to dismiss.” But two published decisions by the Second Circuit in the past year have called this “sacred cow” of false advertising litigation into serious question. The first was Geffner, where the court rejected the plaintiffs’ allegations that the brand name “Diet Coke” conveyed a message of weight loss or management as “implausible on their face.” 928 F.3d at 200. The next was Chufen Chen v. Dunkin’ Brands, Inc., where the court similarly dismissed as implausible the plaintiff’s claims to have expected additive-free steak in certain Dunkin’ Donuts products. See 954 F.3d 492, 501 (2d Cir. 2020). Ehlers follows this trend. The Ehlers court relied on both cases in concluding that the plaintiff’s “Happy Cows” claims were similarly unreasonable.
Ehlers casts particular doubt on false advertising claims rooted in consumers’ purported expectations of “sustainable” or “socially conscious” business practices. As Ehlers underscores, many of these claims rest on vague statements or images whose meanings lie in the eye of the beholder. The question of what counts as “sustainable” or “socially conscious” does not lend itself to easy definitions or categories, and determining how a reasonable consumer would interpret these and related terms is no small feat. Ehlers suggests that, going forward, false advertising claims premised on these concepts will face an uphill battle to survive dismissal—at least, absent clear and express language far more concrete than what Ben & Jerry’s used here.
The Ehlers decision also properly applied the rigorous standards for demonstrating standing to seek injunctive relief. As we have previously written, a plaintiff pursuing injunctive relief must demonstrate a likelihood—not a hypothetical possibility—of future harm in the absence of an injunction. In federal court, this is a jurisdictional requirement that cannot be relaxed to help advance the “policy” behind state consumer protection laws. Yet some courts have incorrectly done just that, allowing plaintiffs who are at no real risk of future injury to demand injunctive relief because the alternative would supposedly fail to effectuate state policy. Ehlers reinforces that these cases are outliers, and that the stringent standing requirements for all plaintiffs seeking injunctive relief—no matter the source of their claims—are alive and well.
