by Richard W. Millar, Jr.

I have another confession to make: I never thought much about cows before Gary Larson drew them standing up and talking. Before that, they were just pictures on milk cartons.

The earliest sales slogan I remember was from Carnation Condensed Milk, which touted it was “the milk from contented cows.” I couldn’t stand the taste of condensed milk, so it made no difference to me whether Carnation’s cows were contented or mad as hell.

Then in a case of sloganeering upmanship, another dairy started claiming “our cows are never contented, they are always striving to do better.”

It is a tough market out there.

Carnation started peddling its slogan in 1907, well before the flourishing class action business. Now, it is a different story. Just ask Ben & Jerry’s.

Apparently, Ben & Jerry’s ice cream is, according to the folks in its marketing department, from “happy cows.” I am guessing that is a degree or two better than simply “contented” cows, although it conveys a slightly giddy attitude. But then again, ice cream is more fun than milk.

In a new entry to the class action sweepstakes, one James Ehlers, on behalf of himself and all others, if any, similarly situated, has filed a class action in federal court in Vermont claiming deceptive labeling and marketing.

In truth, says the lawsuit, “only a minority percentage of the milk and cream in the Products actually is sourced from those ‘happy cows’ on ‘Caring Dairy’ farms . . . .”

Ok, so some of the cows are happy and some are not. Do they get ice cream from the first group and sour cream from the rest? Just asking.

The complaint contains a picture of a package of Ben & Jerry’s Peanut Butter Cup ice cream and avers it features representations of “green fields, blue skies and cartoon depictions of happy animals,” which “representations are necessarily seen by retail purchasers . . . .” Happy cows plus green fields plus blue skies; sounds like a trifecta of false advertising.

The complaint is on behalf of all consumers in the United States who purchased Ben & Jerry’s products within the statute of limitation with a sub-class of Vermonters. It contains claims under the Vermont Consumer Protection Act, Breach of Warranty, and Unjust Enrichment, essentially positing that not all the cows who (or is it which?) provide milk for Ben & Jerry’s products come from caring farmers. That seems to assume that cows from less than caring farmers are less than happy. How that equates to the taste of the ice cream is unmentioned.

Ben & Jerry’s is fighting back with a motion to dismiss which immediately asks the same question that was worrying me:

“How happy is a cow?”

This deathless question cannot be answered inasmuch as Mr. Ehlers “could not take a cow’s deposition to ask it how it feels,” because “Rule 30 applies only to persons.” I am not sure I would have stopped that thought at Rule 30, but I digress.

The defense motion also observes that the cow pictured in the complaint “has no discernable expression at all.” But, “in any event, the phrase ‘happy cows’ has already been removed from the packaging [although] the cartoon cows remain . . . [even though] they did not look happy to begin with.”

That disappoints me. Somehow the phrase “our ice cream comes from cows with no discernable facial expression,” does not have the same marketing elan.

This is written shortly after the motion to dismiss was filed, so we will all have to wait with bated breath to find out how the court will rule. That, of course, does not stop me from making a prediction.

Now that the cows on the packages are no longer saying they are “happy,” I predict that:

Richard W. Millar, Jr. is Of Counsel with the firm of Friedman Stroffe & Gerard in Irvine. He can be reached at rmillar@fsglawyers.com.