Earlier this summer, the District Court of Vermont dismissed a false advertising lawsuit alleging that Ben & Jerry’s claims that it sources dairy products from “happy cows” on “Caring Dairy” farms were materially misleading. Ehlers v. Ben & Jerry’s Homemade, No. 2:19-cv-00194 (D. Vt. 2020).

The plaintiff interpreted the “happy cow” and “Caring Dairy” statements on Ben & Jerry’s ice- cream cartons and website to mean that all milk used in Ben & Jerry’s ice-cream is sourced from “happy cows” and “Caring Dairy” farms. To this consumer’s alleged disappointment, the milk used in Ben & Jerry’s products is actually a mixture of Caring Dairy farms and mass production facilities. As a result, the plaintiff brought claims for violation of the Vermont Consumer Protection Act, breach of express warranty, and unjust enrichment.

The district court found that plaintiff did not plausibly allege a violation of the VCPA because the statement was neither material nor misleading. Plaintiff interpreted a heading on a single Ben & Jerry’s webpage—“Basic standards for being a Caring Dairy farmer (required for all farmers)”—as meaning that “Caring Dairy” standards apply to all farmers who supply Ben & Jerry’s. The Court rejected this interpretation, noting that nothing accompanying that representation suggests that Ben & Jerry’s sources its products exclusively from Caring Dairy farms. In fact, other sections of the website explicitly negate plaintiff’s contentions—for example, a statement that “the number of Caring Diary farms fluctuates each year.” Emphasizing that context is crucial to determine whether a representation is misleading, the Court concluded that Plaintiff could not rely solely on his own faulty interpretation in a vacuum and ignore the relevant context to support a plausible claim of actual misrepresentation.

 Plaintiff also alleged the representations constituted a breach of express warranty and/or resulted in unjust enrichment. However, both allegations failed. As to the warranty claim, the Court found the advertiser’s use of “happy” merely constituted the seller’s opinion, rather than an objective statement that could form the basis of the bargain. That sounds sensible, given the inherent difficulty in interviewing the cows for confirmation. The court further noted that even if Plaintiff could plausibly plead a material breach, he could not show that the Ben & Jerry’s ice cream he purchased was worthless because of said breach.

The Court’s decision reinforces the importance of context in determining the reasonable consumer takeaway of an advertising claim. When plaintiffs ignore context and claim to have taken away an objectively unreasonable message, their complaint is ripe for a motion to dismiss.


Want to talk advertising? We welcome your questions, ideas, and thoughts on our posts. Email or call us at lweinstein@proskauer.com /212-969-3240 or akaplan@proskauer.com /212-969-3671.  We are editors of Proskauer on Advertising Law and partners in Proskauer’s False Advertising & Trademark practice.