BURLINGTON, Vt. (Legal Newsline) – A federal judge has dismissed a class action lawsuit that alleges some of the milk used to make Ben & Jerry’s doesn’t come from “happy cows.”
On May 7, Judge Christina Reiss in Vermont dismissed the complaint, though she did so without prejudice. She gave the plaintiffs 20 days to amend their complaint.
The case was filed in November against Unilever, which owns Ben & Jerry’s. It alleged the company has been deceiving consumers by representing the products "as being made with milk and cream sourced exclusively from 'happy cows' on Vermont dairies that participate in a special, humane 'Caring Dairy' program" when allegedly that only pertains to a small percentage of the Ben & Jerry Products.
But Reiss tossed plaintiff James Ehlers claims: Violation of Vermont Consumer Protection Act, breach of express warranty, unjust enrichment and a request for injunctive relief.
“Plaintiff does not plausibly allege reasonable consumers would make their purchasing decisions exclusively based on a single phrase in a single webpage heading contained in a website that a consumer would need to access in advance of or contemporaneously with his or her purchasing decision,” Reiss wrote.
The plaintiffs attorneys who must now amend the complaint or abandon the case are from the Burlington Law Practice in Vermont and the Richman Law Group in New York.
“How happy is a cow?” Ben & Jerry’s asked in its motion to dismiss. “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.”