To every cow her calf: claim against Organic Valley partially survives based on maternal separation

Takahashi-Mendoza v. Cooperative Regions of Organic Producer Pools, 2023 WL 3856722, No. 22-cv-05086-JST (N.D. Cal. May 19, 2023)

Plaintiff sued defendant, which does business as Organic Valley, under the CLRA and UCL, challenging labels on milk that say:

1. “Organic Valley’s commitment to the highest organic standards and animal care practices helps make all our food delicious and nutritious”;

2. “Humane Animal Practices[:] Our organic animal care focuses on holistic health practices, including daily doses of sunshine, fresh air, and pasture”;

3. “Pasture-Raised Goodness[:] Organic Valley’s commitment to high standards of animal care go above and beyond organic standards because we know the best milk comes from happy cows”;

4. “We Hold Ourselves to the Highest Standards”;

5. “Our cows are social and so are we!”

6. “We are your neighbors, a national cooperative of real farmers growing real food the right way”; and

7. “Pasture-Raised with Love.”

Along with the “idyllic imagery” of the labels – some of which feature images of human mothers and children and at least one of which includes “an image of what any reasonable consumer would infer to be a mother and her calf” – these statements allegedly lead a reasonable consumer to infer that Organic Valley’s milk products meet the highest standards for humane treatment of dairy cows, which is allegedly false.

 

Instead, Organic Valley’s member farms allegedly separate cows and calves “shortly after birth,” a practice which may inflict stress upon the cows and impair their immune responses. Some farms house calves individually, a practice associated with “poor growth and chronic hunger.” And male calves are sold to commercial farms to be raised and slaughtered for meat, and, once their milk production levels drop, female cows are also slaughtered. 

Surveys allegedly show the majority of consumers agree that cows should not be separated from their calves early after birth or within a few hours of birth and that participants would pay the same or more for milk from cows not separated from their calves shortly after birth. Consumers allegedly pay a premium for Organic Valley products in order to support humane farming practices, which they believe do not involve separating cows and calves shortly after birth.

Although plaintiff had standing to seek injunctive relief, she didn’t sufficiently allege that her claim for money damages under the CLRA was inadequate, so equitable relief claims were dismissed.

The court rejected reliance on several statements as “unmeasurable, subjective claims about Defendant’s products on which no reasonable buyer would rely.” Considered in context, “growing real food the right way,” “Pasture-Raised with Love,” “the best milk comes from happy cows,” and “[o]ur cows are social and so are we” were unmeasurable opinions. Dictionary definitions of “social” didn’t “provide a usable standard for defining a social cow. Further, no reasonable consumer would interpret the phrase, ‘Our cows are social and so are we,’ when followed immediately by several logos for social media networks, to mean that the cows are never alone.”

But the remaining statements, in context, were actionable statements of fact. “Whether Defendant observes ‘Humane Animal Practices’ in its milk production does not amount to puffery.” Other statements were also definite enough in context. By claiming that “Organic Valley’s commitment to high standards of animal care go above and beyond organic standards,” Organic Valley was itself claiming to meet or exceed measurable, objective standards. “We Hold Ourselves to the Highest Standards” was similarly definite, as it was immediately followed by a list of five standards, including “Humane Animal Practices[:] Our organic animal care focuses on holistic health practices, including daily doses of sunshine, fresh air[,] and pasture”; and “The Pasture-Raised Difference[:] More time on pasture means our cows’ milk naturally delivers omega-3 and CLA.” However, the court then found that the “We Hold Ourselves to the Highest Standards” and “Humane Animal Practices” claims were not plausibly deceptive, because in context they didn’t suggest that calves would be kept with their mothers but rather focused on other specific practices.]

Deceptiveness was supported by survey data showing that “76 percent of consumers shopping at conventional grocery stores, and 87 percent of consumers at premium/natural grocery stores, including consumers of dairy products, say they are concerned about the welfare of animals raised for food.” Further survey data suggests “low acceptance of any cow-calf management system involving early separation” and that consumers consider “that early separation was a breach of [the] standard of care owed to both cows and calves.” And survey data allegedly showed that consumers are willing “to pay the same or more for milk from cows who were not separated from their calves prematurely,” and that survey participants characterized “premature maternal separation as ‘unnatural,’ ‘unacceptable,’ ‘inhumane,’ and ‘cruel.’ ” This made deception plausible, not because consumers would be aware of specific third-party certification standards, but because the statement about “high standards of animal care” “potentially runs afoul of consumer expectations regarding the early separation of calves from their mothers.”