Ben & Jerry’s Seeks Dismissal of ‘Happy Cows’ Ice Cream Class Action

Unilever, the parent company of Ben & Jerry’s ice cream, wants a class action lawsuit dismissed that alleges the milk used in their products is from factory farms and not “happy cows.”

The Ben & Jerry’s ice cream class action lawsuit alleges that the company misleads consumers into thinking the creamy treat comes from so-called happy cows. However, the plaintiff says since Unilever purchased the company the ice cream is sourced from factory farms.

Unilever shot back, saying that advertising about “happy cows” is mere “puffery” and not enough to support the plaintiff’s claims of false advertising.

“As an initial matter, ‘happy cows’ is non-actionable puffery because it is a statement of opinion, not a statement of fact,” states the motion to dismiss the Ben & Jerry’s ice cream class action lawsuit. “Happiness cannot be measured objectively, and (the plaintiff) could not take a cow’s deposition to ask how it feels.”

The motion for dismissal of the Ben & Jerry’s class action lawsuit points out that the product’s packaging makes no representation that their ice cream is made “exclusively” from happy cows, despite containing pictures of cows in front of a backdrop of blue skies and green fields.

“In any event, the phrase ‘happy cows’ has already been removed from the packaging,” points out Unilever. “The cartoon cows remain, but…they did not look happy to begin with.”

Unilever claims Ben & Jerry’s website makes no representations that its milk is sourced exclusively from happy cows. Instead, according to the motion, the company provides incentives for humane practices through its voluntary “Caring Dairy” program.

“It also explains the program’s impact by pointing out that the dairy output of the farms enrolled in it is now equal to Ben & Jerry’s total dairy requirements, which is very different from a promise that every ounce of dairy in every pint necessarily came from a Caring Dairy,” contends Unilever’s plea for dismissal.

“In other words, to the extent a reasonable consumer bought Ben & Jerry’s ice cream because he wanted to support the humane treatment of cows, he got exactly what he paid for.”

Unilever also argues the contention that all consumers are socially and environmentally conscious is not supported in the Ben & Jerry’s ice cream class action lawsuit.

Lead plaintiff, James Ehlers, alleged in the Ben & Jerry’s ice cream class action lawsuit last year that Unilever began misrepresenting the product after they purchased the independent ice cream brand.

In addition to not sourcing the ice cream from “happy cows,” Unilever reportedly retained product packaging and labeling that misleads consumers into believing the product is made by the socially and environmentally conscious independent company that it was before the acquisition.

Ehlers pointed out in the Ben & Jerry’s ice cream lawsuit that although the founders Ben and Jerry are no longer part of the company’s day-to-day process, they are still featured on the product’s packaging.

The plaintiff accused Unilever of profiting off this consumer-friendly image by leading consumers to think that the company retained its values, such as sourcing its milk from Vermont dairies.

However, the dairy now used in Ben & Jerry’s ice cream is mainly sourced from factory farms, not participants in the Caring Dairy program, according to the plaintiff.

Have you purchased Ben & Jerry’s ice cream? Do you care about the happiness of cows? Let us know in the comments below.

Ehlers is represented by Joshua L. Simonds of The Burlington Law Practice PLLC and by Kim E. Richman of Richman Law Group.

The Ben & Jerry’s Ice Cream Class Action Lawsuit is James Ehlers v. Ben & Jerry’s Homemade Inc., et al., Case No. 2:19-cv-00194-cr, in the U.S. District Court for the District of Vermont.

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