Legal Opinions - U.S. District Court, Maryland: May 5, 2008

Sanderson's Amended Complaint alleged that Tyson's advertisements containing the claims "Raised Without Antibiotics" and "Raised Without Antibiotics that impact antibiotic resistance in humans" are false and misleading to the consumer.

Sanderson specifically alleged that Tyson uses ionophores in its chicken feed and that ionophores are antibiotics. Pending before the court was Sanderson's supplemental motion for a preliminary injunction.

Sanderson's motion sought to require that Tyson immediately cease all non-label advertising using the unqualified "Raised Without Antibiotics" claim and the qualified "Raised Without Antibiotics that impact antibiotic resistance in humans" claim.

Sanderson's amended complaint requested injunctive relief against "any claim, direct or indirect, qualified or unqualified, in words or in substance, that Tyson's chicken is raised without antibiotics."

Based largely on Sanderson's consumer survey, the court also found that the qualified language "Raised Without Antibiotics that impact antibiotic resistance in humans" is not likely to be understood by a significant portion of the consumer public.

Professor Michael B. Mazis's consumer survey, submitted on Sanderson's behalf, presented compelling evidence of consumer confusion with respect to both the unqualified and qualified "Raised Without Antibiotics" claims and stands uncontradicted in all important respects. Professor Mazis's testimony also clearly established that the qualified language is not understood by a substantial percentage of consumers.

The court further found that there is a strong likelihood of success by Sanderson on the merits of this case when it proceeds to trial. Moreover, the court found that the public interest compels the issuance of a preliminary injunction during the pendency of this case. Accordingly, the district court granted Sanderson's supplemental motion for a preliminary injunction.

LAW: Under FRCP 65, the decision whether to issue a preliminary injunction is committed to the sound discretion of the trial court. Hughes Network Sys. v. In-terDigital Commc'ns Corp., 17 F.3d 691, 693 (4th Cir. 1994).

To determine whether a preliminary injunction is appropriate, the court must apply the four-factor hardship balancing test established by the United States Court of Appeals for the 4th Circuit in Blackwelder Furniture Co. of Statesville, Inc. v. Seilig Manufacturing Co., 550 F.2d 189 (4th Cir. 1977).

The four Blackwelder factors are: 1) the likelihood of irreparable harm to the plaintiff if injunctive relief is denied; 2) the likelihood of harm to the defendant if injunctive relief is granted; 3) the likelihood that the plaintiff will succeed on the merits; and 4) the public interest. Id. at 195.

Applying the Blackwelder factors, the court concluded that Sanderson's supplemental motion for preliminary injunction should be granted. The preliminary injunction proceeding in this case was extensive.

Although naturally incomplete at this stage in the litigation, the record is hardly insufficient and the court does not reach its legal conclusions in haste. See Sole v. Wyner, 127 S. Ct. 2188, 2195 (2007).