Home -> Law Blog Directory -> Legal Niches Blogs -> Agricultural Law

Legal Niches

: Agricultural Law

Twists and Turns: Tyson's "Raised Without Antibiotics" Claim

By Jim Chen at al.

Last week, Tyson Foods pulled the plug on its "raised without antibiotics" marketing campaign, ending a fascinating struggle involving Tyson, its competitors, the FDA, the USDA, the FTC, and a district court in Baltimore. Although along the way, the struggle seemed to involve nuances of scientific classification and the wording of Tysons' claims, the proverbial final straw came with the USDA discovery that Tyson was still using antibiotics to prevent illness and death in its chicks.

The widespread use of antibiotics in animal production has long been known to contribute to the development of antibiotic resistant bacteria. The FDA has been slow to react, but has gradually restricted the use of certain antimicrobials in animal production, thus saving the effectiveness of certain drugs for treatment of human disease. The recently released Pew Commission on Industrial Farm Animal Production called for strong actions to limit antibiotic use.

And, as early as 2002, it was reported that the market leaders in the poultry industry had begun to transition from the use of antibiotics that were also used by humans, instead using drugs that were not needed for human treatment. Tyson was at the forefront of this transition.

In June of 2007, Tyson took this a step further and combined it with a major marketing strategy focused on the advertising claim that its chickens were "raised without antibiotics." The $16 million campaign included new packaging and advertisements in print, on the radio, on billboards, and on television. The strategy was very successful, and Tyson received praise from consumer advocates for their efforts.

However, two problems surfaced.

First, Tyson still used ionophores in its chicken feed as a disease-prevention mechanism. Tyson claimed that ionophores are not antibiotics. USDA initially seems to have agreed, approving the label but then reconsidered and rejected it. The USDA and Tyson eventually agreed on a modified label that stated "raised without antibiotics associated with human resistance."

Second, several other poultry companies cried foul. They said Tyson's claims constituted false advertising because ionophores are antibiotics and because the claim implied that Tyson's products were safer than theirs. They argued that most other poultry companies have also switched to using ionophores. In late April, U.S. District Judge Richard Bennett issued a preliminary injunction and set a May 15 deadline for Tyson to stop from running any of the "raised without antibiotics" advertisements.

The lawsuit did not involve the actual product labels, evidencing the confusing split between labeling and advertising, with the former regulated under food safety laws by the FDA and USDA and the latter regulated as false advertising under the Lanham Act and regulated by the FTC.

Then, the final chapter. Last Monday, Tyson Foods announced :

Due to uncertainty and controversy over product labeling regulations and advertising claims, Tyson Foods, Inc. (NYSE: TSN) has notified the USDA it is voluntarily withdrawing its qualified Raised Without Antibiotics chicken label. In addition, company officials have asked the USDA to consider initiating a public process to bring more clarity and consistency to labeling and advertising rules involving antibiotic-related product claims and all raising claims in general.

Not included in its announcement, however, was mention of the fact that the Food Safety and Inspection Service (FSIS) of the USDA issued a letter to Tyson that same day rescinding its label based on a new fact that they had discovered -

"FSIS is required to ensure labels are not false and misleading. In December 2007, FSIS approved the qualified raised without antibiotics label based on information provided by Tyson Foods, Inc.

"The label is being rescinded based on additional information provided to FSIS only after the qualified claim had been approved.

"Specifically, FSIS found that they routinely used the antibiotic Gentamicin to prevent illness and death in chicks.

"Because of this information, FSIS notified Tyson Foods, Inc. that the company must stop using the qualified raised without antibiotics labels, or any variation of a "Raised without antibiotics" claim by June 18.

It is hoped that the hearings referenced will be held and will bring clarity and transparency to this complex issue. And, one way or another, it is hoped that the meat industry will continue on the path toward the reduced use of antibiotics in production agriculture.

Full post as published by Agricultural Law on June 07, 2008 (boomark / email).