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Ben & Jerry's Loses the Legal Battle for Misinforming Consumers

Written by Dr. Joseph Mercola Fact Checked

ben and jerrys lawsuit

Story at-a-glance -

  • Ice cream giant Ben & Jerry’s’ efforts to dismiss a lawsuit brought against it by the Organic Consumers Association (OCA) has been rejected
  • The District of Columbia Superior Court ruled that the suit, which alleges Ben & Jerry’s used “smoke and mirrors” marketing aimed at covering up the true sources of its dirty dairy, will move forward
  • Instead of being a true champion for the environment, Ben & Jerry’s continues to source its milk largely from concentrated animal feeding operations (CAFOs), betraying both the environment and their customers’ trust
  • In their suit, OCA also claimed that Ben & Jerry’s’ marketing could lead consumers to assume that the ice cream contained no harmful chemicals, such as the herbicide glyphosate, when tests suggest otherwise

Ice cream giant Ben & Jerry's' efforts to dismiss a lawsuit brought against it by the Organic Consumers Association (OCA) has been rejected. The District of Columbia Superior Court ruled that the suit, which alleges Ben & Jerry's used "smoke and mirrors" marketing aimed at covering up the true sources of its dirty dairy, will move forward.

Ben & Jerry's is the fourth top-selling ice cream brand in the world, and thanks to its acquisition by Unilever in 2000, has tripled its sales over the last decade and a half, reaching $1.23 billion in sales in 2016.1

Despite its prolific growth, it's still viewed by many as a socially responsible, environmentally friendly company — an image it has carefully crafted and worked to maintain, including via social media campaigns targeting young adults.

However, instead of being a true champion for the environment, Ben & Jerry's continues to source its milk largely from concentrated animal feeding operations (CAFOs), betraying both the environment and their customers' trust.

Judge Rules Against Ben & Jerry's, Allows Lawsuit to Move Ahead

Ben & Jerry's promotes its ice cream as made from milk from "happy cows" supported by its "Caring Dairy" program, a set of standards for cow care, planet stewardship and farmworkers that are supposed to go beyond the CAFO status quo. According to Ben & Jerry's:2

"Caring Dairy offers our farmers a program for evaluating, implementing and continuously improving sustainable agricultural practices on their farms. Our belief is that the future of dairy farming is to build soil health that includes increased cover crops, alternative tilling practices, rotational crops and grazing techniques. 

We also believe that high quality animal care is fundamental to the success of a farm, a well-cared for cow will produce a higher quality milk. And of course the importance of labor that supports the entire farm, from the farmer to the farmworker."

It sounds good in theory, and looks good in print, but the reality is not so pretty. According to OCA, Ben & Jerry's sources its milk and cream from a cooperative in St. Albans City, Vermont. About 360 farms deliver dairy to the co-op, and fewer than 25 percent of them actually meet the Caring Dairy standards.

Further, all the milk at the co-op is mixed together, so Ben & Jerry's receives a mixed vat of Caring Dairy and, primarily, CAFO milk. "[E]ven 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 noted.3

Indeed, and the judge agreed. While Ben & Jerry's filed a motion to have OCA's deceptive labeling and marketing lawsuit dismissed, Judge Neal Kravitz stated that the allegations were sufficient to advance a claim that consumers could be misled by Ben & Jerry's' labeling and marketing.

"A reasonable consumer could plausibly interpret Ben & Jerry's' labeling and marketing as affirmatively (and inaccurately) communicating that the company's ice cream products are sourced exclusively from Caring Dairies and/or other humane source," he wrote.4

Consumers Could Be Misled About Glyphosate in Ben & Jerry's

In their suit, OCA also claimed that Ben & Jerry's' marketing could lead consumers to assume that the ice cream contained no harmful chemicals, such as the herbicide glyphosate.

Kravitz agreed, noting, "The court concludes that the facts alleged in the complaint are sufficient to support a plausible claim that consumers would be misled by Ben & Jerry's' statements into believing the company's ice cream products contain no traces of chemicals like glyphosate."5

For all their talk about sustainable agricultural practices, if you look at Ben & Jerry's' ice cream labels, you'll notice that they don't mention organic. As such, pesticide usage is fair game and residues are par for the course.

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.6 The fan favorites Phish Food, Half Baked and Americone Dream are just a few examples found to contain glyphosate or its metabolites.

Also 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.7 After being forced into the negative publicity spotlight, Ben & Jerry's released a "vision of sustainable agriculture," with claims that they would stop using ingredients made with crops chemically dried using glyphosate by 2020, which only applies to their nondairy ingredients.

They also claimed that they would come out with a new product line in 2018 that would include organic dairy in the base mix, slated to represent up to 6 percent of total U.S. sales.8 Unfortunately, it seems they have no intention of sourcing the bulk of their dairy from organic sources in the near future, although they did roll out a small selection of light ice cream made with organic milk and cream.

As it stands, however, Ben & Jerry's is contributing to the many problems caused by industrialized agriculture, including getting dairy from farms that are polluting Lake Champlain and Lake Carmi in Vermont's Franklin County, the suit alleges.

Ben & Jerry's Claims to Be GMO-Free but Is Made With Milk From GMO-Fed Cows

While Ben & Jerry's doesn't claim to be organic, they do claim to use non-GMO ingredients in their pints and ice cream shops. "We reached this non-GMO milestone in 2014 when we completed the transition of all plant-based ingredients in all* (sic) of our ice cream flavors to non-GMO," they claim.9

For people looking to avoid GMOs, this may seem like a green light to embrace Ben & Jerry's, but here's a juicy little fact: Ben & Jerry's uses conventional, i.e., CAFO, dairy, which is a leading consumer of genetically engineered crops via GMO animal feed. So while their ice cream may not use GMOs directly, it is certainly contributing to the proliferation of GMO crops in the environment.

According to the University of California Division of Agriculture and Natural Resources, "In the United States, livestock have been fed genetically engineered crops since these crops were first introduced in 1996 … Because the majority of corn … and soybeans … are used for livestock feed, it is clear that the livestock industry is a major user of genetically engineered crops."10

If Ben & Jerry's truly wanted to support the GMO-free movement, they have a simple fix at their disposal: Switch to organic ingredients, which, for dairy, means it comes from cows fed only pasture or organic, non-GMO feed.

The Non-GMO Project described animal feed as "the key to a non-GMO future," pointing out, "When large-scale livestock and poultry farmers make the switch to non-GMO feed, the face of U.S. agriculture will change."11 Even mainstream companies like yogurt maker Dannon have committed to sourcing non-GMO feed for the animals producing their milk.

Yet, Ben & Jerry's keeps stalling. While they could be a major driver to a more sustainable planet, instead they only state, "We are actively seeking cost-effective options for farmers within our supply chain to convert to non-GMO animal feed." Meanwhile, this caveat exists on their Non-GMO Standards webpage:12

"We've based our non-GMO standard on the mandatory declaration requirements of European regulations and the GMO labeling law passed by our home state of Vermont. This standard does not address animal feed.

To be clear, the fresh milk and cream we source from family farmers is conventionally sourced. It is common practice for dairy cows' feed to contain GMO ingredients such as corn and soy."

Is Ben & Jerry's Exploiting Farmworkers?

Part of Ben & Jerry's' deceptive marketing spin involves the migrant workers on Vermont's dairy farms. The company pays less than the cost of production for its dairy, which makes it impossible to attract a local workforce. Most of Ben & Jerry's' dairy comes from farms where workers, mostly from Mexico, are paid low wages, expected to work long hours with little (or no) time off and poor living conditions.

As is the case with their spin on environmental responsibility, Ben & Jerry's claims to support a Milk with Dignity agreement, which they developed in partnership with migrant worker rights organization Migrant Justice.

They tout that 72 farms, with an estimated 250 migrant workers, are signed up for the program, which is supposed to offer basic farmworker protections, such as minimum wage, one day off a week, eight hours off per 24 hours of work, a bed and running water.

Yet, as of August 2018, zero of the 72 farms were actually in compliance with the agreement. What's more, the program is voluntary, which means any of the farms can opt out at any time. Michael Colby, president of Regeneration Vermont, explained:13

"Unfortunately, that bit of truth didn't make it into the fawning media coverage the well-orchestrated press event received, including a short New York Times piece that was headlined, 'Farm Worker Program a Success.'

It was the kind of coverage that must have had them dancing in the corporate headquarters of Unilever, the European mega-corporation that owns the Ben & Jerry's brand, among dozens of others, where market share — not social justice — is the primary goal. Unilever has called for Ben & Jerry's to be among its billion-dollar-a-year-brands by 2020."

Support the Companies Doing Dairy the Right Way

The purpose of OCA's lawsuit is to bring attention and awareness to the fact that one of the biggest "environmentally friendly" ice cream makers in the U.S. is actually supporting an industry that harms animals, the environment and public health. Whether Ben & Jerry's will clean up their act remains to be seen. Colby told Vermont Public Radio that the judge's recent ruling may ultimately force their hand:14

"They're making all kinds of false claims and all kinds of money — $800 million last year — while they're leaving the damage for Vermonters to clean up the water, for the cows to be unhealthy and for the consumers to be threatened by what's really in their products and how they're really farming …

Given the strength of this ruling, it should put a little fear in Ben & Jerry's and their corporate owner, Unilever … They really have two choices: they can negotiate with us to do the right thing without having to go further legally. Or based on this ruling, they really are facing a legal defeat which will really force them to stop making false claims."

Still, the fact remains that as long as consumers continue to buy Ben & Jerry's' products as is, they have little incentive to change. You can take a stand now by choosing only organic, grass fed ice cream in lieu of Ben & Jerry's. You can also send Ben & Jerry's a message using the online contact form at the bottom of their contact page letting them know why you've chosen to no longer purchase their products.

Better yet, call Ben & Jerry's directly (802-846-1500) and ask the company to fulfill their mission statement and go organic. OCA has also created a petition15 to encourage Ben & Jerry's to convert to organic and stop hoodwinking customers into thinking they're organic by claiming to be all-natural and environmentally responsible.

I also encourage you to look for The American Grassfed Association (AGA) logo on dairy (and meat), as it ensures the animals were born and raised on American family farms, fed only grass and forage from weaning until harvest, and raised on pasture without confinement to feedlots.16

By buying grass fed or pastured dairy products, you are making a solid choice toward protecting, not polluting, the planet — something Ben & Jerry's would be wise to also consider.