The plaintiffs’ bar has continued to challenge sourcing and sustainability claims made by food manufacturers.  In Ehlers v. Ben & Jerry’s Homemade Inc., 2020 U.S. Dist. LEXIS 80773 (D. Vt. May 7, 2020), however, the court dismissed such a challenge where the allegedly false statement was taken out of context and the plaintiff ignored the totality of the company’s representations.  “A plaintiff who alleges that he was deceived by an advertisement may not misquote or misleadingly excerpt the language of the advertisement in his pleadings and expect his action to survive a motion to dismiss.”  This case should help companies fend off similar claims in the future.

Ben & Jerry’s advertises that its dairy products come from “happy cows” on “Caring Dairy” farms.  A plaintiff claimed that these statements led her to believe that the ice cream products are “sourced exclusively from ‘happy cows’ on Vermont dairies that participate in a special, humane ‘Caring Dairy’ program.”  In reality, according to Plaintiff, the milk and cream was sourced from a variety of dairies, including mass-production facilities that employed extensive confinement practices and use of antibiotics.  Based on these allegations, the plaintiff alleged claims for false advertising.

The plaintiff’s allegations ignored the context of Ben & Jerry’s advertising.  The text on the back of Ben & Jerry’s cartons of ice cream states in relevant part: “We strive to make the best possible ice cream in the best possible way. We source Non-GMO ingredients, Fairtrade cocoa & sugar, eggs from cage-free hens & milk & cream from happy cows. Learn more at”  The website explains that the Caring Dairy program is “a unique program that’s helping farmers move toward more sustainable practices on the farm.”  The Caring Dairy Standards set forth the “basic” standards to be considered a Caring Dairy farm as well as the detailed eligibility requirements for higher levels of status.  Nothing on the packaging or the website stated that Ben & Jerry’s sourced its ingredients exclusively from Caring Dairy farms.

The court dismissed the plaintiff’s claim, noting that the context in which the allegedly false statements are made is crucial.  The court concluded that “because neither Ben & Jerry’s products nor its website represents that its ingredients are ‘sourced exclusively’ from Caring Dairy farms, Plaintiff’s entire claim is grounded on a single phrase in a single heading on a multipage website which is neither false nor misleading when considered as a whole.”