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Millions ride on chicken feed suit

The Baltimore Sun

Two of the nation's largest chicken producers - including Maryland's Perdue Farms - are challenging Tyson Foods' advertising, claiming in a federal lawsuit that it's misleading consumers into believing that the Arkansas company's birds are healthier to eat than competitors'.

At a hearing yesterday in Baltimore's U.S. District Court, Perdue and Mississippi's Sanderson Farms complained that Tyson's ads say the company's poultry products don't contain antibiotics thought to affect drug resistance in people.

In fact, none of the three producers' poultry includes those kinds of antibiotics, but Tyson is the only one making that point through print advertising, commercials and billboards.

The plaintiffs asked the court to bar Tyson from using such claims in its marketing, arguing that shoppers could infer that others must be using dangerous drugs if Tyson took the trouble to point out that it isn't. Meanwhile, Tyson asked that the lawsuit be dismissed.

More testimony and closing arguments on the motions will be heard today.

It's a case full of legalese, fluctuating U.S. Department of Agriculture decisions, definitions of what an antibiotic is and what claims can be made about its use. It also underscores the country's concerns about food safety, which have escalated in recent years - so much that simply saying a food is somewhat drug-free can boost sales significantly and hurt others' bottom lines.

Sanderson says it lost a $4 million account to Tyson because of the company's ad campaign. And Perdue says it lost about $10 million in revenue since last year.

"This is a very hot topic with consumers across the board, whether they're talking about milk or whether they're talking about meat. And they are caring a lot more about what's being carried in their products," said Nancy M. Childs, chairwoman of the department of food marketing at St. Joseph's University in Philadelphia.

Recent food safety issues arising in China, which has exported contaminated plums and pea pods, along with domestic concerns about bacterial contamination of bagged spinach, Taco Bell lettuce and Peter Pan peanut butter, have raised the public's consciousness when it comes to watching what they eat. An organic food fad that says natural is better has also swayed the public, making it lucrative to use marketing terms such as "antibiotic-free" and "hormone-free."

"There's a small group that appreciate the difference, but for most of the consumers, it's like a halo; it's just better," Childs said. "It's a way of a consumer seeing an added point of value ... to make consumers think they're getting a little more."

According to the Union of Concerned Scientists, a science-based nonprofit advocating for a healthier environment, antibiotic-resistant bacteria are on the rise in large part because of the overuse of medication in the animals people eat. Such "superbugs" can be difficult to treat and can cause serious illness or death.

Both Sanderson and Tyson feed their chickens food that contains "ionophores," which prevent intestinal illness and are largely considered antibiotics. Salisbury-based Perdue gives most of its birds ionophore-laced food as well, though its niche brand - called Harvestland - is free of antibiotics and ionophores.

But even the UCS says ionophores are safe as far as antibiotics go and shouldn't cause consumers, or poultry farmers, concern.

"They are not used in human medicine, so even if resistance should emerge as a result of their use in poultry, that resistance would not have implications in human medicine," said Margaret Mellon, director of the UCS's Food and Environment Program.

The problem took shape in spring 2007, when the USDA said Tyson could label its foods as "raised without antibiotics" even though they contained ionophores. Then the USDA rescinded the allowance in the fall - after Tyson had spent a fortune on advertising and packaging.

"It was truly just an error in approving the label," USDA spokeswoman Amand Eamich said yesterday.

Tyson is now allowed to say its products are "raised without antibiotics that impact antibiotic resistance in humans." The back-and-forth raised competitors' attention, but not quickly enough for them to start ad campaigns of their own.

Now, Perdue and Sanderson want Tyson to remove any "raised without antibiotics" ads still in the marketplace and to throw out the modified claim as well, because a study has shown that consumers can't tell the difference between the two. The two companies say it's unfair, misleading and costing them customers.

It's an "implied superiority claim," according to Perdue and Sanderson's attorney, Randall Miller.

In an e-mailed statement, Tyson spokesman Gary Mickelson called the attempts to thwart the company's advertising "desperate."

"Our competitors are inappropriately trying to use the court to circumvent the regulatory judgment of USDA, which approved the labeling we're now using," Mickelson wrote. "The advertising we're using is completely consistent with the government approved labeling and we believe it is not, as a matter of law, false or misleading."

U.S. District Judge Richard D. Bennett said he plans to issue a written opinion shortly on the motions to dismiss the case and to force Tyson to stop advertising.

Regardless of his decision, the case could continue on to a jury trial, which could take months, or the parties could choose to end things early.

If Tyson prevails, Sanderson and Perdue have a backup plan, however: They'll match Tyson's advertising.

"That's what will happen if we lose," Miller said.

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