Ben & Jerry's said it does not deceive consumers by saying it used milk and cream from "happy cows" to make its ice cream, and that an environmental advocate's lawsuit claiming otherwise should be dismissed.
In a Monday filing seeking to end the proposed nationwide class action, Ben & Jerry's said James Ehlers did not plausibly allege why its statements about using cows from Vermont dairies in its "Caring Dairy" program mattered to reasonable consumers.
Ben & Jerry's also said Ehlers lacked standing to seek future relief because he now knows where its milk and cream come from, and because it has removed "happy cows" from packaging, leaving cartoon cows with "no discernible expression" on the labels.
"They did not look happy to begin with," Ben & Jerry's said, joined by its parent Unilever Plc.
Jay Shooster, a lawyer for Ehlers, declined to comment.
In his Oct. 29 complaint filed with the federal court in Burlington, Vermont, Ehlers said that more than half the milk and cream used in Ben & Jerry's ice cream actually came from "factory-style, mass-production" dairy operations.
He said misleading marketing enabled Ben & Jerry's to charge premium prices, and violated a Vermont consumer protection law.
Ben & Jerry's countered that "happy cows" was merely a statement of opinion, known as "puffery," and could not support the lawsuit.
"Happiness cannot be measured objectively, and Ehlers could not take a cow's deposition to ask how it feels," it said.
Founded in 1978 in a renovated gas station, Ben & Jerry's has long positioned itself as socially conscious. Unilever bought the company in August 2000. Ehlers lost in the Democratic primary to become Vermont's governor in 2018.
The case is Ehlers v Ben & Jerry's Homemade Inc et al, U.S. District Court, District of Vermont, No. 19-00194.
(Reporting by Jonathan Stempel in New York; Editing by Tom Brown)