Last spring, the U.S. Department of Agriculture said Tyson could label its poultry packaging as "raised without antibiotics," which led the company to launch a similar advertising campaign. But the USDA said later that it had made a mistake and reversed its decision in the fall.
Tyson was supposed to pull all of that advertising. But during a four-day hearing this month in Baltimore, attorneys for Perdue and Sanderson showed photographs of the advertisements still in use at grocery stores throughout the country.
Eventually Tyson and the USDA reached a deal allowing the company to label its products as being raised without drugs that "impact antibiotic resistance in humans." But the plaintiffs produced a consumer survey that showed most people still thought that meant drug free.
Bennett's opinion said that "qualified" statement "is not likely to be understood by a significant portion of the consumer public."
Perdue attorney Randall K. Miller, a partner with Arnold & Porter LLP in McLean, Va., said the statement raises safety concerns about human antibiotic resistance.
"That's making it way worse," Miller said in an interview. "We're going to continue to fight, as well. We're not going anywhere."
Perdue says it lost about $10 million in revenue to Tyson last year because of the company's ad campaign, while Sanderson said it lost a $4 million account.
Tyson said it is not currently using the advertising campaign, which spanned print and televised commercials as well as billboards.
The company planned to resume the campaign before the summer grilling season began. Tyson can still use the claims on its package labeling. But the ruling requires them to remove posters and brochures already used in stores.
"To me, it's a surprising result," said Margaret Mellon, director of the Food and Environment Program at the Washington-based nonprofit Union of Concerned Scientists. Mellon submitted a deposition on Tyson's behalf, though she has no relationship with the business.
"As far as I can tell, Tyson has dealt forthrightly with the government, with the public interest community, with consumers on this issue from the beginning. They told the government that they were using ionophores," Mellon said.
"My sole interest in this is trying to move companies ... in the direction of using fewer antibiotics, and that's what the public health needs."
tricia.bishop@baltsun.com
