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Ben & Jerry’s Sued for Misleading Customers

Ben & Jerry's, loved by so many because of its environmentally friendly image, is being sued by Organic Consumers Association (OCA), which alleges its do-good reputation and marketing campaigns are all "smoke and mirrors."1 In the lawsuit against Ben & Jerry's and their parent company, Unilever, filed in July 2018, OCA takes issue with statements that the ice cream is made using milk from "happy cows" raised in "Caring Dairies."2

They promote their Caring Dairy program as involving "family operated" farms working toward sustainable dairy farming, and state that farmers must meet the program's basic requirements to be included. This, the lawsuit claims, leads "consumers to believe that the products are produced using animal-raising practices that are more humane than those used on regular factory-style, mass production dairy operations."

Even the peaceful cows on their ice cream pints, silhouetted by green pastures and blue skies, give the impression that ice cream, or at least its milk, is a wholesome product you can feel good about buying. You, and many others, would probably be surprised to learn that this is very much a carefully crafted illusion.

Ben & Jerry's Uses CAFO Milk

Ben & Jerry's has set itself apart from other ice cream makers in the frozen dairy aisle, largely because of their claims of "values-led sourcing" and "Caring Dairy" promises, which built a loyal fan base. "Due to concerns about health, sustainability and animal welfare, consumers are increasingly considering how their food is produced and the effects of that production on animals and the environment," OCA's lawsuit states.

"As a result, consumers seek out products that are produced with farming and grazing practices that lead to humanely-raised animals, clean water, healthy soil and a toxin-free environment, such as practices associated with regenerative agriculture."3 The company is so popular that it was the second-largest ice cream brand in 2017, bringing in $801 million in sales.4

But if you look closely, there are some key terms missing from the ice cream labels that signal perhaps they're not as environmentally friendly as they'd like you to believe — terms like "organic" and "grass fed," for starters. They'd certainly get a different reaction from consumers if their labels touted what's really inside, like milk from concentrated animal feeding operations (CAFOs).

"In contrast to Unilever's representations, the products include milk that comes from cows raised in regular factory-style, mass-production dairy operations, also known as 'Concentrated Animal Feeding Operations' or 'Large Farm Operations' — not in the special 'Caring Dairies' emphasized in Unilever's marketing," OCA states.5

The nonprofit advocacy group Regeneration Vermont, which, along with OCA, has been invested in trying to get Ben & Jerry's to clean up their act, revealed that Ben & Jerry's sources their milk and cream from a co-op in St. Albans City, Vermont.

About 360 farms contribute milk to the co-op, but fewer than 25 percent adhere to Ben & Jerry's "Caring Dairy" standards. Yet, when the milk is delivered, it's all mixed together, so there's no way to tell whether the milk you're getting came from a Caring Dairy farm or a CAFO. "So even if some of the milk comes from a farm that actually meets those standards, Ben & Jerry's can't truthfully claim that all of their milk and cream come from dairies that meet the company's 'Caring Dairy' standards," OCA points out.6

Brent Johnson, a class-action defense lawyer who is not involved with the case, told Bloomberg, "If it's true that St. Albans' mixes milk production, and some don't qualify as a Caring Dairy under the standards articulated by Ben & Jerry's, that's to me the plaintiffs' best case."7

Ben & Jerry's Tainted by Glyphosate Herbicide

Another one of the lawsuit's complaints centers on Ben & Jerry's claims that their products help reduce environmental impact, an ironic marketing claim for a product tainted by chemical pesticides

In July 2017, OCA reported that 10 of 11 samples of Ben & Jerry's ice cream they tested came back positive for glyphosate, the active ingredient in Monsanto's Roundup herbicide, and/or its main metabolite AMPA.8 The fan favorites Phish Food, Half Baked and Americone Dream are just a few examples found to contain glyphosate or its metabolites. 

In 2017, OCA called on Ben & Jerry's to immediately transition to using only organic ingredients, including milk, "or face a national and international consumer boycott." Ben & Jerry's responded by stating their products are safe to eat and contain only trace levels below those allowed by regulatory standards. However, daily exposure to even ultra-low levels of glyphosate for two years led to nonalcoholic fatty liver disease (NAFLD) in rats in one study.9

Ben & Jerry's also subsequently released a "vision of sustainable agriculture," with claims that they would stop using ingredients made with crops chemically dried using glyphosate by 2020. In northern, colder regions farmers of wheat and barley must wait for their crops to dry out prior to harvest. Rather than wait an additional two weeks or so for this to happen naturally, Monsanto urged farmers to spray the plants with glyphosate, killing the crop and accelerating their drying (a process known as desiccating). 

It's a step in the right direction for Ben & Jerry's to not use ingredients from desiccated crops, but as OCA noted, this only applies to their nondairy ingredients. Organic dairy is another animal entirely, but to this Ben & Jerry's responded that they would come out with a new product line in 2018 that will include organic dairy in the base mix. 

They anticipate the new organic line is only going to represent up to 6 percent of total U.S. sales,10which means they have no intention of sourcing the bulk of their dairy from organic sources in the near future.