Judge orders Tyson Foods to stop ad campaign

The Baltimore Sun

A federal judge in Baltimore ordered Tyson Foods yesterday to stop using a recent advertising campaign because he says it is misleading consumers into believing that the poultry giant is raising its chickens drug-free.

The U.S. District Court ruling comes in response to a lawsuit filed against the company by Salisbury-based Perdue Farms and Sanderson Farms of Mississippi.

The competing poultry producers claim that they're losing millions of dollars to Tyson because its advertising falsely claims that the company's birds are not medicated.

All three producers feed their chickens food containing antibiotic "ionophores," which prevent intestinal illness and are largely considered harmless antibiotics. But Tyson is the only one implying that its chickens are safer for consumers to eat. The case has highlighted concerns about food safety and how companies use marketing tactics to gain an edge over competitors.

Judge Richard D. Bennett said Tyson must remove any advertising from grocery stores and elsewhere that highlights the medical claim.

In a 31-page opinion issued yesterday afternoon, Bennett said Perdue and Sanderson were likely to win the case going forward.

"Having heard the testimony of numerous witnesses, including experts proffered by the parties, and having reviewed hundreds of exhibits, this Court finds that consumers are being misled by Tyson's advertisements," Bennett wrote.

He granted a preliminary injunction ordering the Arkansas company to "immediately cease" all advertising that claims Tyson poultry is "raised without antibiotics" or "raised without antibiotics that impact antibiotic resistance in humans."

Tyson said it would appeal the decision in the U.S. Court of Appeals for the 4th Circuit in Richmond, Va., and seek a stay on the order.

"We strongly disagree with this decision and will appeal since we firmly believe we have acted responsibly in the way we have labeled and marketed our products," Dave Hogberg, senior vice president of consumer products for Tyson Foods, said in a statement.

"Our company has complied with federal regulations throughout the development of this product line and we intend to stand our ground."

Excessive antibiotic use in animals has raised health concerns in the medical community, which fears it could lead to drug-resistant bacteria taking hold in people. Ionophores aren't used in human medication, however, and are thought to be safe for animal treatment.

Last spring, the U.S. Department of Agriculture said Tyson could label its poultry packaging as "raised without antibiotics," which led the company to launch a similar advertising campaign. But the USDA said later that it had made a mistake and reversed its decision in the fall.

Tyson was supposed to pull all of that advertising. But during a four-day hearing this month in Baltimore, attorneys for Perdue and Sanderson showed photographs of the advertisements still in use at grocery stores throughout the country.

Eventually Tyson and the USDA reached a deal allowing the company to label its products as being raised without drugs that "impact antibiotic resistance in humans." But the plaintiffs produced a consumer survey that showed most people still thought that meant drug free.

Bennett's opinion said that "qualified" statement "is not likely to be understood by a significant portion of the consumer public."

Perdue attorney Randall K. Miller, a partner with Arnold & Porter LLP in McLean, Va., said the statement raises safety concerns about human antibiotic resistance.

"That's making it way worse," Miller said in an interview. "We're going to continue to fight, as well. We're not going anywhere."

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

Tyson said it is not currently using the advertising campaign, which spanned print and televised commercials as well as billboards.

The company planned to resume the campaign before the summer grilling season began. Tyson can still use the claims on its package labeling. But the ruling requires them to remove posters and brochures already used in stores.

"To me, it's a surprising result," said Margaret Mellon, director of the Food and Environment Program at the Washington-based nonprofit Union of Concerned Scientists. Mellon submitted a deposition on Tyson's behalf, though she has no relationship with the business.

"As far as I can tell, Tyson has dealt forthrightly with the government, with the public interest community, with consumers on this issue from the beginning. They told the government that they were using ionophores," Mellon said.

"My sole interest in this is trying to move companies ... in the direction of using fewer antibiotics, and that's what the public health needs."


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