Is Ben & Jerry's misleading consumers? Lawsuit says 'happy cow' representation not quite true

BURLINGTON, Vt. – Is Ben & Jerry's misleading its customers about the type of milk and cream used in its ice cream? 

Environmental advocate and former gubernatorial candidate James Ehlers says yes, and that its parent company, Unilever, is profiting because of the false advertising, according to a recent lawsuit filed in U.S. District Court in Burlington. 

According to the federal complaint, filed Oct. 29, Vermont resident Ehlers alleges that Unilever violated its customers' trust by saying Ben & Jerry's products were made with milk and cream sourced from "happy cows" on Vermont dairy farms that participate in its humane "Caring Dairy" program.

Only a minority of the cream and milk used in the ice cream comes from these types of farms, the complaint alleges.

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"The remaining milk and cream originates from factory-style, mass-production dairy operations, exactly what consumers who choose Ben & Jerry's products would like to avoid," the complaint states. 

Because Ben & Jerry's markets itself as being socially conscious, the complaint states, consumers are prompted to buy more of its products and to pay higher prices than they might otherwise. Ehlers says he is one of possibly thousands of consumers harmed by this practice and is offering the lawsuit as a possible class action. 

"Plaintiff Ehlers has purchased the Phish Food, One Love, Americone Dream, Tonight Dough, Chocolate Chip Cookie Dough, Mint Chocolate Cookie, S'Mores, and New York Super Fudge Chunk varieties of Ben & Jerry's products," the complaint states. 

The complaint states Ehlers and other consumers can no longer trust Ben & Jerry's and are "at continued risk of real and immediate threat of repeated injury, including purchasing deceptively labeled and packaged products sold at prices above their true market value."

No other consumers have yet joined the lawsuit, according to the court record. 

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Ben & Jerry's: Caring Dairy program is 'most progressive' in industry

Ben & Jerry's spokesman Sean Greenwood declined to comment on the lawsuit. But, he wrote in general about the company's Caring Dairy program in an email to the Burlington Free Press, a part of the USA TODAY Network. 

"We are 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 the most progressive in the industry," Greenwood wrote in an email. 

He said that Ben & Jerry's vision for the future is for all of its dairy to come from farms with high standards for their cows and their farming practices. He said those farms would actively work to reduce their environmental footprint.

Steve Alessandrini of Unilever, the other entity being sued, also declined to comment on the lawsuit.

What makes a 'happy cow'? 

The non-profit Organic Consumers Association – represented by the same law firm as Ehlers – filed a lawsuit last year in Washington, D.C., also challenging labeling around the milk and cream used in Ben & Jerry's ice cream coming from "happy cows."  

According to Ben & Jerry's website, the farms that are part of the "Caring Dairy" program have to meet a number of humane standards for the cows' and environment's treatment. Programs are run both in the U.S. and Netherlands.

According to a 2018 company report, 65 farms had met the "Caring Dairy" standard for three years in a row, but the total number of farms that participated in the program fluctuated from year to year.

The milk used in Ben & Jerry's products is sourced through the St. Albans Cooperative Creamery, which merged this year with the Dairy Farmers of America. St. Albans Cooperative processes the raw milk into separated heavy cream and condensed skim milk, according to the lawsuit. 

However, the lawsuit states that St. Albans does not keep milk from "Caring Dairy" farms separate from the milk produced at non-"Caring Dairy" farms, which includes mass-production dairy operations. Because of this, the complaint alleges, "a large percentage" of the milk and cream used in Ben & Jerry's products is not from "Caring Dairy" farms. 

"Factory-style, mass-production dairy operations in Vermont employ intensive cow confinement practices and extensive antibiotic use," the lawsuit states. This does not align with the perception around "happy cows" marketed by Ben & Jerry's and Unilever, it adds.  

St. Albans Cooperative Creamery did not immediately respond to a request for comment.

Lawsuit: Unilever profiting off of Ben & Jerry's reputation

Founders Ben Cohen and Jerry Greenfield created a reputation for their company as being socially conscious. As a result, the lawsuit states, consumers flocked to the brand, to the benefit of Vermont dairy farms and the local economy.

"Since acquiring Ben & Jerry's Homemade Inc., Unilever has been able to benefit from that reputation, and from the consumer trust it engenders, without necessarily operating the brand as Mr. Cohen and Mr. Greenfield would or did," the complaint states.

The complaint alleges that Unilever has "profited enormously to the detriment of consumers" because of its misleading marketing and image.

Attempts to reach Cohen and Greenfield for comment were unsuccessful. 

Follow Elizabeth Murray on Twitter at @LizMurrayBFP.

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