Sargento sells a variety of cheese products with the claim, "No Antibiotics," on the packaging. There's also a disclaimer that reads, "Our cheese is made from milk that does not contain antibiotics." In a lawsuit against the company, the plaintiff alleged that the "No Antibiotics" claim is misleading because the products are made from cows who receive antibiotics and at least some of the products actually contain small amounts of antibiotics. So, what does a "No Antibiotics" claim actually communicate?
Were the Cows Given Antibiotics?
Sargento moved to dismiss the lawsuit, arguing, among other things, that no reasonable consumer would understand the label to mean that its cheese products are made with milk from cows who have not received antibiotics. Sargento said that the disclaimer on the package -- "Our cheese is made from milk that does not contain antibiotics" -- clarifies any ambiguity in the claim. Sargento argued that the fact that the milk itself does not contain antibiotics says nothing about whether the cows who produced the milk were ever given antibiotics.
The court simply wasn't convinced, holding that there was a factual dispute that precluded granting the motion to dismiss. The court felt that even though the packaging has (arguably) made clear that there are no antibiotics in the milk that was used to make the cheese, it doesn't mean that another claim was not also communicated to consumers -- that the cows never received antibiotics as well. The court wrote, "Even assuming that a reasonable consumer would see and read the disclaimer in small font, it is plausible that a reasonable consumer could still believe that there are no antibiotics in the milk because the cows producing the milk were not given antibiotics."
Significantly, the court just didn't think that the disclaimer fully clarified the meaning of the "No Antibiotics" claim. Even though the disclaimer tried to explain what the claim meant, at least in this court's view, it didn't negate the potential implied claim that was communicated.
Are there Trace Amounts of Antibiotics in the Cheese?
In response to the plaintiff's claim that the "No Antibiotics" statement is also false and misleading because there are, in fact, trace amounts of antibiotics in at least some of Sargento's cheese products, Sargento argued that no reasonable consumer would believe that "No Antibiotics" actually means zero antibiotics. Sargento argued -- not without some support in the case law -- that consumers would understand that "No Antibiotics" means that there could still be trace amounts of antibiotics in the product. Again, the court was unconvinced, and refused to dismiss the claim on this basis (though, ultimately, this claim was dismissed on standing grounds).
The court held here that, ultimately, it's going to be a question of fact how consumers interpret a "No Antibiotics" claim in this context, and whether it could allow for trace amounts of antibiotics to be present. Interestingly, though, the Federal Trade Commission has already staked out its own position on this. In the FTC's Guides for the Use of Environmental Marketing Claims, the FTC says that it's not deceptive to claim that a product is free of a substance, even if it contains a trace amount of the substance, if (1) the level of the substance is no more than that which would be found as an acknowledged trace contaminant or background level, (2) the substance's presence does not cause material harm that consumers typically associate with that substance, and (3) the substance has not been added intentionally to the product.
Phan v. Sargento Foods, 2021 WL 2224260 (N.D. Cal. 2021).
"Even assuming that a reasonable consumer would see and read the disclaimer in small font, it is plausible that a reasonable consumer could still believe that there are no antibiotics in the milk because the cows producing the milk were not given antibiotics"