How Happy is a Cow, Your Honor?

Feb. 5, 2020

And how absurd is this lawsuit?

A recent filing in the U.S. District Court for Vermont begins:

Defendants Ben & Jerry’s Homemade, Inc. and Conopco, Inc. d/b/a “Unilever” (collectively, “Ben & Jerry’s”), by and through counsel, hereby move to dismiss the complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim. In support, Ben & Jerry’s submits the following memorandum of law and supporting declaration.

How happy is a cow?

Yes, it seems we are now litigating the happiness of cows.

The filing is a motion to dismiss a class-action lawsuit brought by one James Ehlers, who, after losing his bid for governor of Vermont, apparently had nothing better to do. The suit accuses Ben & Jerry’s of misrepresenting the emotional state of the cows that yield the milk for its ice cream. Specifically, it alleges that only a small portion of that milk comes from local farms enrolled in the Ben & Jerry’s “Caring Dairies” program, so therefore, the words “Made from Happy Cows” on Ben & Jerry’s packaging constitutes fraud.

Unilever was therefore forced to hire attorneys who wrote, presumably with a straight face, passages like this in their motion to dismiss:

As an initial matter, “happy cows” is non-actionable puffery because it is a statement of opinion, not a statement of fact. Happiness cannot be measured objectively, and Ehlers could not take a cow’s deposition to ask how it feels.

As food & beverage-related class action suits go, this one isn’t quite as ridiculous as the ones about how drinking diet soda doesn’t automatically make you slender. But it’s right up there. To make things slightly more absurd, Ben & Jerry’s no longer uses the “Happy Cows” claim on its packaging.

The subtext of the “Happy Cows” lawsuit, of course, is disappointment or alienation because Ben & Jerry’s, the hippie company with the benign ethos, was swallowed up by big bad Unilever. To which the only possible responses are: 1) that happened two decades ago; 2) welcome to capitalism; 3) find a real problem to worry about.