Milk-maker Arla Foods’ ad campaign put out to pasture for hormone ‘dis’ 

Here Be Monsters

The advertisement is kind of brilliant.

Back in 2017, Arla Foods launched a series of 30-second TV spots as part of a $30 million campaign to expand cheese sales in the United States (Arla’s parent company is based in Denmark).

In one commercial, a child (“Leah, age 7”) is asked to describe recombinant bovine somatotropin (mercifully abbreviated rBST), a hormone given to cows to stimulate milk production. Our young narrator dives in with all the élan of Tolkien:

“razor-sharp horns … it’s so tall that it can eat clouds … you may want to pet it but the fur is electric … and then it starts laughing … heh heh heh heh!”

Underneath the adorable narration, animation brings the monster to life in loving and imaginative detail.

The spot ends with a sober adult explaining, “Actually, rBST is an artificial growth hormone given to some cows. But not the cows that make Arla cheese. No added hormones. No weird stuff. Arla – live unprocessed.”

Can you guess what happened next?

Fondue Venue

Eli Lilly and Co. and subsidiary Elanco US sued Arla in – yes, you guessed it – the Eastern District of Wisconsin, Green Bay Division. The American pharma giant and its veterinary subsidiary charged Arla with false advertising under the Lanham Act as well as violation of a Wisconsin statute. The plaintiffs argued that the commercial constituted a claim that Arla cheeses were safer than competitor cheeses made with rBST, and requested an injunction barring the offending advertisements and requiring corrective ads as well.

The complaint maintained that rBST was neither dangerous or unsafe, citing the U.S. Food and Drug Administration’s (FDA) determination that the hormone is harmless – “there is no discernable difference between milk from cows supplemented with rBST and milk from unsupplemented cows.” The complaint went on to note that the FDA had declared such ads ‘“false and misleading” if they state or “imply that milk from untreated cows is safer or of a higher quality than milk from [rBST] treated cows.”

The Takeaway

With the exception of Elanco’s request that Arla publish corrective advertising, the district court issued an injunction completely in Elanco’s favor in June 2017. Arla appealed the order to the 7th Circuit Court of Appeals.

In the appeal, Arla argued that Elanco didn’t produce any evidence that proved consumers were confused by the ad, and that the company did not demonstrate the ad had diminished demand for the rBST product.

The 7th Circuit affirmed the injunction, maintaining that consumer surveys and other such evidence of consumer confusion are not required at the preliminary injunction stage. Moreover, the court agreed with Elanco when it claimed that an attack on rBST was tantamount to an attack on Elanco, since it is the only manufacturer of FDA-approved rBST supplements currently in the marketplace.

As advertisers continue to tout differentiating features of their products, particularly claims that their products are “free of” certain ingredients, care should be taken to ensure that such claims do not imply the unsupported message that a product is better based on the absence of those ingredients.