In a complaint filed in Oregon on August 19, plaintiffs (backed by the Animal Legal Defense Fund) note that Tillamook ads promote the company as "taking on the flawed industrialized food system," (a quote from its ad agency 72andSunny) and as the antidote to ‘Big Food,’ when in fact it is the “embodiment of industrialized dairy.”
“Tillamook's marketing [which includes straplines such as ‘Goodbye Big Food. Hello Real Food’] is highly effective at convincing consumers that its dairy products are sourced from smaller, pasture-based dairies in Tillamook County that prioritize animal welfare and environmental stewardship more than large, industrial dairies do.”
However, in reality, the company sources “upwards of two thirds of the milk for its products from the largest and most industrialized dairy factory farm in the country- a Concentrated Animal Farming Operation [Columbia River Dairy, part of Threemile Canyon Farms in Boardman, Oregon] with over 70,000 total cows and 32,000 dairy cows confined in a single location,” claims the lawsuit.
“This complex of cement-floored production facilities and barren dirt feedlots, where cows are continuously confined, milked by robotic carousels, and afflicted with painful udder infections, is a far cry from the rolling green hills of the Tillamook County family farms shown throughout Tillamook's marketing campaign.”
A ‘world of difference’ between public image and reality
It also cites consumer research to support the allegation that most consumers believe that based on its marketing, Tillamook sources its milk from small-scale family farms in Tillamook County and that its animal welfare standards exceed those of other dairy companies.
The plaintiffs in the case are paying over the odds for products they perceive - based on such marketing – are “more humane, and come from small, pasture-based dairies,” adds the lawsuit.
“In short, there is a world of difference between the animal care and living environments depicted in Tillamook's marketing campaign and those experienced by the vast majority of cows that supply Tillamook milk. In reality, most of Tillamook's cows are never allowed access to pasture (or even outside the warehouses in which they are confined), are not provided individualized care on small family farms, and are even suffering from painful infections.”
Tillamook: 'We will aggressively defend ourselves'
Tillamook said it "adamantly disagrees with the allegations made in the lawsuit and we will aggressively defend ourselves."
The Animal Legal Defense Fund is "anti-dairy and actively advocates for people to cut all dairy products from their diets," claimed the company, adding:"We are proud of our nearly 20-year relationship with Columbia River Dairy in eastern Oregon and have highlighted their leadership in environmental stewardship and sustainable agriculture.
"The size of the farm does not dictate the quality of care. An independent and rigorous audit conducted recently at Columbia River Dairy by the nationally recognized Validus Dairy Animal Welfare Expert Committee resulted in the first-ever 100% score for a dairy operation."
Attorney: Achieving class certification could be tough
So what do legal experts make of the complaint?
Attorneys contacted by FoodNavigator-USA (who are not directly involved in the case), said it may be an uphill battle to secure class certification.
Adam R. Fox, partner at law firm Squire Patton Boggs, told FoodNavigator-USA that the plaintiffs’ claims “appear to depend on the existence of a common understanding by consumers of what it means to be ‘big food’ generally and also in specific contradistinction to ‘real food.’”
But it is not at all clear that they will be able to show such a common understanding exists or that it has any connection to the concerns about animal welfare touted so prominently in the complaint, he said.
“What ‘big food’ or ‘real food’ means… is likely to be a subjective matter about which there is no common understanding. That could doom the prospects of certification as a class action. Just as clearly, the generalized nature of these phrases make them excellent candidates for a ‘puffery’ defense—one that recognizes the marketing assertions as matters on which no reasonable consumer could rely.
“And even if consumers could rely on them, there would remain serious questions of proof to demonstrate that consumers actually do rely on them, and that they are material to purchasing decisions. In food cases, it is often hard to show that consumer choice isn’t motivated by other obviously important factors, like taste.”
Attorney: Tillamook is pretty transparent about where its milk comes from on its website
Another challenge for the plaintiffs is that the company is pretty transparent about its sourcing strategy on its website, noted William C. Acevedo, partner at law firm Wendel Rosen LLP.
“If you examine Tillamook’s Frequently Asked Questions section of its website, in response to the FAQ ‘Are all your farms based in Tillamook, OR?’ Tillamook exclaims, ‘Nope!’ It then explains that it partners ‘with many farms of many different sizes to source the high-quality milk we use in our products.’
“This could be used to show that Tillamook has been straightforward in addressing the origin of its products, but it is only one piece of the puzzle. Tillamook’s general advertising and multiple social media posts could be viewed as sending out a contradictory impression of where Tillamook sources its milk from.”
Tillamook will need to show (and the sooner the better) that the plaintiffs here have misconstrued its advertising
In its FAQ, Tillamook also makes an express claim: ‘While a large dairy farm may not look the same as a much smaller one, we can assure you that every farm we work with is held to the same strict quality and animal care standards that our farmer-owners adhere to in Tillamook County,” noted Acevedo.
“This assurance goes beyond the geographic origin question and speaks to the animal treatment issue raised by the plaintiffs. Tillamook must substantiate this assurance, and it does seem to try to do so elsewhere on its website. Tillamook expressly discusses its partnership with Columbia River Dairy, for example, noting that is ‘[n]aturally recognized for its environmental stewardship and sustainable agriculture,’ as well as its claim in another section of the website that ‘[a]ll farmers who supply milk for Tillamook products pledge not to use artificial growth hormones.’
“Tillamook will need to show (and the sooner the better) that the plaintiffs here have misconstrued its advertising, especially given Tillamook’s seemingly candid statements about its operations throughout its website.”
But he added: “Objective support for its claims will be key for Tillamook, but that is only part of it. Bear in mind that it is from the perspective of the consumer reading Tillamook’s website and seeing its advertising that the statements will be evaluated. What Tillamook ‘meant’ by its statements is secondary to what consumers ‘reasonably believed’ Tillamook was saying.”
"At first glance, it seems like plaintiffs will have a difficult time establishing that there is a generally recognized understanding of the term 'Big Food.' However, given that Tillamook seems to use the term in its own marketing, it will be interesting to see how Tillamook defines the term.
"At the end of the day though, I would expect the thrust of plaintiff’s claims to really revolve more around animal welfare as opposed to the size of the company (or even the actual farms) supplying the milk. Large doesn’t’ necessarily equal inhumane. If Tillamook sources milk from small and large farms alike, and all their farms treat their animals in a humane an ethical manner, I’m not sure where the confusion or harm arises.
"Keep in mind, as always, that to achieve class certification the plaintiff will need to show that the entire class of consumers read the marketing claim(s) and interpreted them in the same way. It will certainly be a challenge to show: (1) which class members saw which claims; (2) that they understood or interpreted those claims the same way; and (3) that they relied on those claims and were harmed by that reliance."
Ryan Kaiser, managing partner, Kaiser IP, LLC
‘The dairy industry has been doubling down on marketing efforts to trick consumers’
In a letter signed by The Center for Food Safety, Friends of Family Farmers, Humane Voters Oregon, The Center for Biological Diversity, Food & Water Watch, Farm Forward, and Factory Farming Awareness Coalition, the animal welfare groups said the lawsuit would help shine a spotlight on the conditions of dairy cows in the wake of recent animal abuse allegations at Natural Prairie Dairy and Fair Oaks Farms.
“As consumer demand grows for dairy products from animals raised humanely on sustainable family farms, the dairy industry has been doubling down on marketing efforts to trick consumers into believing that their products reflect these consumer values when they do not.
"Tillamook’s marketing intentionally depicts cows roaming freely on rolling green hills, while knowing that this is not the reality of how these large, industrial facilities operate. On industrial dairies, cows are intensively confined with little or no access to pasture, artificially and repeatedly impregnated starting at around two years old to produce mass quantities of milk, and then separated from their young calves shortly after birth.
“Once they stop producing enough milk to meet the intense and unnatural industrial demand, they are culled and sent to slaughter at a fraction of their natural lifespan.”
*The case is Sonja Bohr, Tamara Barnes, Karen Foglesong, and Mary Wood et al vs Tillamook County Creamery Association, filed in in the circuit court of the state of Oregon in and for the county of Multnomah, on August 19, 2019.
