Posted by: Jill Abitbol
May 12, 2008
Topic: Marketing and Advertising Law

Competitors Sanderson Farms and Perdue Farms sued Tyson for nationally advertising its chicken as "Raised Without Antibiotics" and "Raised Without Antibiotics that impact antibiotic resistance in humans." A federal court recently issued a preliminary injunction ordering Tyson Foods to withdraw the advertisements at issue, finding that the ads are false and misleading to the consumer and could violate the Lanham Act's false advertising prohibition.

The competitors clearly stated a claim upon which relief could be granted by asserting the unqualified advertising claim "Raised Without Antibiotics" was literally false, the court held. The qualified claim was also found to be false and misleading to the consumer public despite the USDA's determination that it was not. The court held that the Food Safety and Inspection Service (FSIS) of the USDA conducted a highly technical and scientific review of the proposed label language; however, it did not involve a review of whether the language was misleading to the consumer when combined with images and promotional slogans. The competitors submitted a consumer survey to demonstrate the consumer confusion, which included 608 consumers in twenty-eight shopping malls across the United States. Indeed, the court found the survey was "compelling evidence of consumer confusion."

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