NEW YORK (Legal Newsline) – A recent court decision is giving companies facing lawsuits hope that judges will decide no one would be dense enough to be misled by certain claims - like whether ice cream is made from the milk of "happy" cows.
On March 31, the U.S. Court of Appeals for the Second Circuit dismissed a class action against Dunkin’ Donuts brought by plaintiffs who complained that their Angus steak sandwiches did not contain an “intact” piece of meat. Instead, those sandwiches contained a ground beef patty.
The Second Circuit backed dismissal of the case on jurisdictional grounds and, which could be key to other companies, also because no “reasonable consumer” could have been misled by Dunkin’ Donuts’ advertising.
The three ads identified by plaintiffs, in which the Angus steak was mentioned, featured multiple close-ups of the product.
Among the authorities cited by the Second Circuit was the dictionary.
“(W)hile the word ‘steak’ can refer to ‘a slice of meat,’ it is also defined as ‘ground beef prepared for cooking or for serving in the manner of a steak,’” the opinion says.
“Classic examples of ground beef served as ‘steak’ include chopped steak, hamburger steak and Salisbury steak.”
Since the beef used in the sandwiches was Angus beef, as advertised, no valid complaints were left for plaintiffs to make.
“As the television advertisements themselves demonstrate, the products are marketed as grab-and-go products that can be consumed in hand, without the need for a fork and knife,” the ruling says.
“A reasonable consumer purchasing one of the products from Dunkin’ Donuts in that context would not be misled into thinking she was purchasing an ‘unadulterated piece of meat.’”
In Vermont, Ben & Jerry’s is facing a class action that takes issue with claims its ice cream is made from milk from “happy cows.”
The plaintiffs claim a large portion of the ice cream is sourced from milk produced at factory-style dairy operations.
The company recently notified Judge Christina Reiss to the Dunkin’ Donuts decision, to point specifically at the reasonable consumer analysis. It did so in support of a motion to dismiss it filed in January that has not been ruled on.
“How happy is a cow?” Ben & Jerry’s asked. “What should be the first line of a riddle is now the major premise of a lawsuit.”
The company says it doesn’t claim the milk comes “exclusively” from happy cows and that the cow on its packaging isn’t smiling.
“(T)he statement that Ben & Jerry’s uses milk and cream ‘from happy cows’ does not mislead consumers,” the company says. “As an initial matter, ‘happy cows’ is a non-actionable puffery because it is a statement of opinion, not a statement of fact.
“Happiness cannot be measured objectively, and (the plaintiff) could not take a cow’s deposition to ask how it feels.”
From Legal Newsline: Reach editor John O’Brien at john.obrien@therecordinc.com.