A U.S. Court of Appeals has denied an emergency request by Tyson Foods to stay a federal judge's decision about its advertising, leaving the Arkansas company with two weeks to pull marketing material from more than 8,000 stores claiming that its chickens are raised free of certain drugs.
"We're disappointed the motion for a stay has been denied and are evaluating our legal options," Tyson Foods Inc. spokesman Gary Mickelson said in a statement yesterday. "We continue to believe we have acted responsibly in the way we have labeled and marketed our products and intend to stand our ground."
The company said it has contacted stores about removing the advertising.
Tyson is being sued in Baltimore U.S. District Court by Salisbury-based Perdue Farms and Sanderson Farms of Mississippi. The competitors say they're losing millions of dollars to Tyson because its advertising claims that the company's birds are not raised with antibiotics that may affect drug resistance in humans.
None of the poultry producers treats its chickens with such drugs, but Tyson's claim leads consumers to infer otherwise, the competing companies say. They are asking that Tyson be forced to change its advertising campaign and surrender all profits it has made from the marketing.
"We know that the false claim has been extremely lucrative for Tyson," said Perdue attorney Randall K. Miller, a partner with Arnold & Porter LLP in McLean, Va.
Last month, U.S. District Judge Richard D. Bennett issued a preliminary injunction forcing Tyson to pull ads and store literature claiming its chickens are raised without antibiotics or drugs affecting bacteria resistance in humans.
Tyson requested a stay of the order so it could appeal. That request was denied late Wednesday.
Tyson has until May 15 to remove posters, brochures, placards and the like from across the country, causing the company "irreparable injury," according to its appellate filing. It's a "massive logistical effort that will incur extraordinary costs" along with market share.
"Tyson anticipates that if it is forced to comply with the District Court's injunction, a substantial number of its retail customers will simply drop Tyson's products from their shelves," the court papers claim.
The U.S. Department of Agriculture has approved Tyson's use of the claim that its chickens are "raised without antibiotics that impact antibiotic resistance in humans" on its packaging.
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. Poultry producers often add "ionophores" - antibiotics that prevent intestinal illness - to chicken feed. But the drugs aren't used in human medication and, therefore, are considered safe.
Making claims about that safety is causing confusion among customers, according to Sanderson and Perdue, who say they've lost a combined $14 million to Tyson because of its ads.
Miller, the Perdue attorney, said he is preparing for a jury trial in the District Court case.