For decades, Vermont-based Ben & Jerry’s has enjoyed a reputation as one of the country’s most progressive, forward-thinking companies.
From its whimsical packaging to its sizable contributions to a variety of social causes, the company has long billed itself as one of the good guys, a brand of ice cream you could feel good about eating — or as good as one can feel while ingesting 1,000-plus calories per pint.
In recent years, however, the business started by two friends in a converted Burlington gas station has faced criticism over its own production methods, including a pair of lawsuits accusing the longtime ice cream purveyor of misleading consumers about just how humane its products really are.
In a class-action suit filed last month in federal court in Burlington, Vt., Ben & Jerry’s — along with parent company Unilever — is accused of falsely claiming the milk used in its ice cream comes exclusively from “happy cows” and so-called humane “Caring Dairy” farms.
“Contrary to the message knowingly conveyed by Unilever to consumers, only a minority percentage of the milk and cream in the products actually is sourced from these ‘happy cows’ on ‘Caring Dairy’ farms,” alleges the suit, filed by environmentalist and former Vermont gubernatorial candidate James Ehlers. “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.”
Since opening its first store in 1978, Ben & Jerry’s has stood as a beloved New England institution — a reputation due in part to its liberal politics and environmentalist claims.
Its flavors have occasionally doubled as political statements — “Empower Mint” was released in conjunction with a voting rights campaign — and the company employs an activism manager charged with externally focused campaigns.
Its “Caring Dairy” program incentivizes dairy suppliers to meet certain animal care standards — including participation in an animal welfare monitoring program and daily time outdoors for the animals — that exceed those of factory farms, which can house hundreds or thousands of cows packed into tight confines.
“In general, 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,” a company spokesman said in a statement provided to the Globe. “We’re committed to building a resilient, regenerative dairy supply.”
Ben and Jerry’s didn’t respond to an e-mail asking what percentage of its milk and cream come from “Caring Dairy” farms. But in court documents, the company rejected the notion that it is deceiving consumers, arguing that statements on its website and packaging don’t constitute fact-based promises, but rather “firmly-held beliefs and aspirations.” Reasonable consumers, the company adds, wouldn’t view the “happy cows” statement as a guarantee that all cows providing milk are located on farms employing more humane practices than typical farms.
Some critics, however, remain unmoved, arguing that the company’s carefully crafted image of environmental responsibility far exceeds the realities of its supply chain.
“That’s the bind they’ve got themselves in,” says Michael Colby, an environmental activist from Vermont whose battles with Ben & Jerry’s date back to its pre-Unilever days. “They’ve done such amazing marketing that they’ve convinced people they’re doing the right thing when, in fact, they’re not.”
Last month’s lawsuit isn’t the first time the popular ice cream purveyor has come under fire for its marketing practices.
In July 2018, the Minnesota-based Organic Consumers Association filed a similar suit against the company alleging deceptive labeling, marketing, and sales of ice cream products stemming from the company’s claims of using milk sourced from “happy cows” raised in “Caring Dairies.”
“We look at Ben and Jerry’s as really the poster child for ‘green-washing’ — this type of deceptive marketing that’s used specifically to appeal to customers who want to think that they are buying products that have been responsibly produced,” says Katherine Paul, associate director of the Organic Consumers Association.
The association’s suit received a boost earlier this year when a judge denied a motion by Ben & Jerry’s lawyers to dismiss, stating that “the complaint alleges facts sufficient to advance a plausible claim that consumers would be misled by Ben & Jerry’s labeling and marketing regarding the sourcing of its ingredients.”
The case is pending in District of Columbia Superior Court.
Class-action lawsuits like the one filed last month can pose unique hurdles, says Alexandra J. Roberts, an associate professor at the University of New Hampshire law school who specializes in trademark and false advertising laws.
According to Vermont’s Consumer Fraud Act, she points out, a suit must meet three requirements: a representation, omission, or practice likely to mislead consumers; the consumer must reasonably interpret the message; and the misleading effects must be material — or likely to affect the consumer’s decision whether or not to purchase the product.
“It’s not enough to show Ben & Jerry’s lied about what kind of farms their milk and cream come from and how those farms treat their cows,” Roberts says. “A court would also have to find that class members who bought Ben & Jerry’s ice cream would likely have chosen a different brand had they known the truth.”
Historically, similar cases have been difficult to predict.
Though Papa John’s was temporarily ordered by a federal judge to suspend use of its popular slogan — “Better ingredients. Better pizza.” — following a lawsuit brought by competitor Pizza Hut in 1998, an appeals court later overturned the decision.
In California, a San Francisco judge tossed out a suit brought by People for the Ethical Treatment of Animals accusing the California Milk Advisory Board of false advertising in a “Happy Cows” campaign — ruling that government entities aren’t subject to false advertising laws.
But the allegations laid out in last month’s suit paint a compelling picture, says Harvard Law School professor Rebecca Tushnet, who specializes in advertising law.
One of the key issues at hand, she says, will be whether the company’s “Caring Dairies” can be considered a factual claim or just marketing puffery.
“By defining what ‘Caring Dairies’ means,” Tushnet says, “Ben & Jerry’s may well have made a factual claim that could be shown to be true or false.”