In Ehlers v. Ben & Jerry’s Homemade Inc., 2020 U.S. Dist. LEXIS 80773 (D. Vt. May 7, 2020), Plaintiff asserted that statements on Ben & Jerry’s ice cream cartons and website suggesting that Ben & Jerry’s sources dairy products from “happy cows” on “Caring Dairy” farms were materially misleading.  Ehlers alleged three causes of action: violation of the Vermont Consumer Protection Act (“VCPA”), breach of express warranty and unjust enrichment.  He sought compensatory damages and injunctive relief.

Ehlers alleged that Ben & Jerry’s breached consumers’ trust by representing that its ice cream products are “sourced exclusively from ‘happy cows’ on Vermont dairies that participate in a special, humane ‘Caring Dairy’ program.”  asserted that statements on Ben & Jerry’s ice cream cartons and website suggesting that Ben & Jerry’s sources dairy products from “happy cows” on “Caring Dairy” farms were materially misleading The website explains that “happy cows” are part of the Caring Dairy program, “a unique program that’s helping farmers move toward more sustainable practices on the farm.”  Plaintiff further alleged that the representations were material because consumers who purchase Ben & Jerry’s products view it as a socially conscious, independent Vermont company.

Plaintiff alleged that the packaging and description on the website led the reasonable consumer to believe that all milk and cream was purchased from a Caring Dairy that met certain sustainability standards also described on the website but that, in reality, the milk and cream was sourced from a variety of dairies, including mass-production facilities.  Plaintiff alleged that less than 25% of the facilities were verified Caring Dairies, and that the mass-production facilities employed extensive confinement practices and use of antibiotics.  On that basis, Plaintiff alleged that the use of milk and cream from other than Caring Dairies represented a material omission.

Ben & Jerry’s moved to dismiss Plaintiff’s claims under the VCPA asserting that a reasonable consumer would not be misled by the label statements or the website.  The district court agreed reasoning that the context in which the allegedly false statements are made is crucial.  Here, the court noted that 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.  The district court further reasoned that dairies that achieve these higher standards are entitled to certain levels of compensation from Ben & Jerry’s and nothing in the section that follows the phrase “required for all Farmers” represented that products are sourced exclusively from Caring Dairy farms.

Plaintiff based his claim on his expectation that all products were sourced from a Caring Dairy, a representation that is neither contained on the packaging nor on the website.  The court held that a “[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.”  The court recognized that a representation does not become false and deceptive merely because it will be unreasonably misunderstood by an insignificant and unrepresentative segment of the class of persons to whom it is addressed.  Accordingly, the court held 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.”

The district court’s opinion confirms that context is everything when statements regarding sourcing and sustainability claims are alleged to be false and misleading.  Class actions that attempt to take an inferential leap too far are at risk for dismissal.