Attorney Walter Judge of Burlington, Vermont, assisting the firm of Shook Hardy & Bacon, obtained the dismissal of a purported consumer fraud class action lawsuit bought in Vermont federal court against ice cream maker Ben & Jerry’s.

In the lawsuit (the “Happy Cows” case) the plaintiff alleged that the company’s “happy cows” and “caring dairy farms” messaging on its product packaging and website misled consumers into believing that 100% of the milk and cream in the company’s ice cream comes from dairy farms using special environmental and animal welfare practices promoted by the company, and that consumers therefore paid a higher price to purchase Ben & Jerry’s products than they otherwise would. On May 7, 2020 the federal court in Vermont dismissed the lawsuit on the grounds that its allegations of consumer fraud were not plausible. The judge determined that a reasonable consumer, seeing the phrase “Happy Cows” on the product packaging and then going to the company’s website and reading a heading at the top of a page that explains the standards for a dairy farm’s participation in the company’s Caring Dairy program, would not interpret those words to mean that the company sources 100% of its milk and cream from “Caring Dairies” – much less that the consumer would do all of that web searching and reading and interpreting as a prelude to making the in-store purchasing decision.  The case is Ehlers v. Ben & Jerry’s Homemade, Inc., U.S.D.C. Vt., Case No. 2:19-cv-194-cr.

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