Federal judge tells Tyson to stop making antibiotic claims

Daily Record, The (Baltimore), Apr 23, 2008 by Brendan Kearney

In an interim win for Salisbury-based Perdue Farms Inc., a federal judge has ordered Tyson Foods Inc. to stop advertising that its chicken products are raised without antibiotics.

The preliminary injunction will last while Perdue's lawsuit is in U.S. District Court in Baltimore. It applies to print, broadcast and point-of-purchase claims that Tyson's chickens are raised without antibiotics, or without antibiotics that impact human resistance to antibiotics. However, it does not apply to Tyson's labels, which are governed by the U.S. Department of Agriculture.

Perdue and a Mississippi-based company, Sanderson Farms, are suing Tyson under federal trademark law. They allege that Tyson's chicken advertising is false and misleading since its chickens, like Perdue's and Sanderson's, are given feed laced with ionophores, which the USDA classifies as antibiotics.

"Everything around Tyson concerning antibiotics is cloaked in secrecy," said plaintiffs' attorney Randall K. Miller. "Today is a day where there's some sunshine. We still don't know the full truth, but at least now we're starting to examine the truth."

In a statement, David Hogberg, Tyson's senior vice president of product marketing, said the meat processing giant intends to "stand our ground" and plans to appeal.

"Our chicken raised without antibiotics that impact antibiotic resistance in humans is more than a labeling and marketing program," Hogberg said. "It also represents a change in the way our chickens are raised."

The order was signed Tuesday afternoon by Judge Richard D. Bennett. It will take effect on May 1, to give Tyson time to file with the 4th U.S. Circuit Court of Appeals.

The judge also ordered the plaintiffs to post a bond in case Tyson ultimately prevails. However, after conducting what he called a "mini-trial" due to the motions hearing's length, number of exhibits and testimony of key witnesses, Bennett called the plaintiffs' likelihood of success at trial "extremely high" and "very strong."

Bennett's ruling comes a week and a half after he ruled that USDA approval of Tyson's labels does not insulate it from a private action under the Lanham Act.

The USDA initially approved the "Raised without Antibiotics" label in error, later requiring Tyson to use qualifying language that clarified that the antibiotics would not impact human antibiotic resistance. The USDA gave Tyson a grace period, the end date of which is confidential, to stop using the unqualified label.

In Tuesday's ruling, Bennett rejected Tyson's reasons for the delay in purging the marketplace of the unqualified claim as "unacceptable," noting it was in the company's financial interest to extend the phase-out period.

"Tellingly, even while the status of the 'Raised Without Antibiotics' label was in flux, internal memoranda indicated that 'no one should be holding up anything because of the RWA labeling issue' and that employees should 'GO! GO! GO!' forward with the advertising campaign," Bennett wrote. "A similarly aggressive position could be taken while Defendant awaits a trial on the merits."

In addition, the qualifying language approved by the USDA "does not appear to serve its intended purpose -- the consumer is still led to believe that Defendant does not use antibiotics, when in fact Defendant uses ionophores in its chicken feed and injects its chicken eggs with antibiotics," Bennett wrote. "Indeed, the qualification may only serve to reinforce that Defendant's chicken is 'Raised Without Antibiotics,' a claim that is literally false."