Brooks Law Digest: Advertising

A federal judge has dismissed a lawsuit alleging that the company advertises that it uses “happy cows” to make its ice cream despite the fact that most of the milk used in Ben & Jerry’s products is obtained from factory farming dairy operations. The ruling was based on the judge’s finding that the company never claimed it exclusively used milk from the humane program.

The Supreme Court of California has ruled that there is no right to jury trial in cases brought under the state Unfair Competition Law or False Advertising Law seeking injunctive relief or civil penalties.

Texas Senate Bill 2035 proposes to restrict the use of the terms meat, beef, chicken, and pork on advertising and labeling of food products to food products made out of a “formerly live” animal. The bill would also ban advertisements and labeling of “imitation” meat products that include comparisons of the product’s nutritional value to slaughtered animal products.

An article in the journal Appetite explores Australian consumer attitudes and goals regarding meat consumption.

An article published in Trends in Food Science & Technology argues that clarifying the terms used to refer to cultivated meat (including cellular agriculture, cell-based meat, and clean meat) is essential for clarity in policy debates and to establish customer confidence.

Ben & Jerry’s has asked the court to dismiss the lawsuit brought against it in November. Ben & Jerry’s claims that the statements made on its packaging that the cows used to produce its ice cream are “happy” are merely opinions and “fluffery,” and therefore not actionable.

Senate Bill 3053, the Food Safety Modernization for Innovative Technologies Act, would set the regulatory pathway—shared between the FDA and USDA—of foods created using cellular cultivation technology. The Act would mandate pre-approval of any food labeling and require that any such food product “that is an imitation of another food” be conspicuously labeled with the word “imitation.” Under the Federal Food, Drug, and Cosmetic Act, a food is considered to be an “imitation” if it is nutritionally inferior or does not comply with a standard of identity or nutritional quality guideline of that food.

A federal judge in Arkansas has granted a preliminary injunction that prevents the state from enforcing a law that bans using terms like “burger” and “sausage” to sell plant-based products against Tofurky while the constitutionality of the law is decided. The plant-based company filed suit against Arkansas in July, arguing that the law is an unconstitutional restriction on commercial speech.

A Senate companion to the House Real MEAT (Marketing Edible Artificials Truthfully) Act has been introduced in the Senate by Republican Deb Fischer. The bills propose to amend the Federal Food, Drug, and Cosmetic Act to require that any “imitation meat food product, beef, or beef product” both be labeled with the word “imitation” immediately before or after the name of the food in uniform size and prominence and include a “statement that clearly indicates the product is not derived from or does not contain meat.”

An attorney who has challenged the intellectual property of a restaurant known for displaying a herd of goats grazing on its roof does not have standing to pursue the challenge, the Federal Circuit has affirmed. The attorney, Todd Bank, petitioned to cancel the restaurant’s trade dress on the basis that it was “demeaning” to the goats and injures the “respect, dignity, and worth of animals.” The Federal Circuit, affirming the decision of the Trademark Trial and Appeals Board, found that Bank did not “suggest he maintained a direct and personal stake in the outcome” of the case and was ordered to pay the restaurant’s attorney fees for filing a “frivolous” appeal.