Recombinant bovine somatotropin (RBST) is an artificial growth hormone fed to cattle for the purpose of increasing their production of milk. The FDA has twice found that RBST is safe and effective for its intended uses and that the milk produced by such cattle is not significantly different from milk produced by untreated cattle. The World Health Organization agrees.
In 2017, Arla Foods, a Danish food conglomerate, launched a $30 million ad campaign named “Live Unprocessed” intended to expand its market share for cheese in the United States. The ads affirmed that Arla cheese contained “no weird stuff” and “no ingredients you can’t pronounce.”
One 30-second TV ad opened with the question “Arla Cheese asked kids: what is RBST”? It then depicted a six-eyed monster while a seven-year-old girl announced that it has “sharp horns,” it is “so tall it could eat clouds,” and has “electric fur.” In small print at the end of the commercial, Arla disclosed that there is no significant difference between milk from RBST cattle and untreated cattle.
The sole FDA-approved supplier of RBST in the United States is Elanco, a subsidiary of Eli Lilly & Co. For obvious reasons, Elanco was less than enthusiastic about Arla’s ad campaign and sued to enjoin it. The District Court granted a preliminary injunction, which the Seventh Circuit recently affirmed.
Under the Lanham Act, there are two types of misleading statements. The first is a literally false statement; the second is one that is literally true but misleading. To establish the second kind of falsity, the plaintiff must present evidence of actual consumer confusion. At trial, this evidence typically comes from consumer surveys. Elanco produced no such surveys at the hearing on the preliminary injunction.
The Seventh Circuit held that such evidence was not essential to a showing of likelihood of success at the preliminary injunction stage. Indeed, the Court thought that it was “not feasible to conduct full-blown consumer surveys” in the time before a preliminary injunction. Rather, the District Court properly relied on the message communicated by the ad campaign: that RBST milk was impure and unwholesome. It also relied on evidence that a major customer for RBST milk stopped using it in response to the Arla campaign.
Arla’s campaign is all too typical of the ways that companies play on people’s fears about technology, even when all or virtually all regulatory agencies have determined that the technology is safe.