Poultry giant Tyson Foods has 14 days to dismantle a national multimillion dollar ad campaign centered on the claim that its chickens are raised without antibiotics, a federal appeals court in Richmond ruled yesterday.
Tyson, based in Springdale, Ark., will have to remove posters and brochures from 8,500 grocery stores nationwide.
"We're disappointed the motion for a stay has been denied and are
evaluating our legal options," said Gary Mickelson, a spokesman for
Tyson Foods. "We continue to believe we have acted responsibly in the
way we have labeled and marketed our products and intend to stand our
The ruling is a setback for Tyson in its ongoing battle with two of its competitors Sanderson Farms,
based in Laurel, Miss., and Perdue Farms, based in Salisbury, Md. The
two companies jointly sought an injunction to stop Tyson's ad campaign,
arguing the "raised without antibiotics" claim misleads consumers by
making it appear Tyson's chicken is safer or more healthful.
Sanderson and Perdue initially based their legal challenge on
Tyson's practice of feeding chickens ionophores, an antibiotic used
only in animals raised for food. Sanderson and Perdue also use
Then during trial in federal court in Baltimore, Tyson officials
acknowledged they also inject eggs several days before they hatch with
antibiotics that are approved for use in humans. Dave Hogberg, Tyson's
senior vice president for consumer products, said it is a common
Hogberg said injecting eggs with antibiotics did not undermine the
"raised without antibiotic" label because the term "raised" is
understood to cover the period that begins with hatching.
More consumers are becoming concerned about the use of antibiotics
in poultry, swine and cattle because they and many public health
experts think that it contributes to the rise of antibiotic-resistant
viruses in humans.
The dispute between Tyson and its competitors began last year, when
Tyson announced it would raise its chickens without antibiotics, as
part of a larger effort to relaunch its brand. It sought approval from
the U.S. Department of Agriculture
for the use of the label "raised without antibiotics." USDA initially
approved the language, then last fall reversed itself, saying it had
made a mistake.
Tyson came up with a new label that said, "raised without
antibiotics that impact antibiotic resistance in humans" that the USDA
The resulting advertising campaign proved a huge success. In a
February conference call, Tyson chief executive Richard Bond told
analysts the company has had double-digit increases in sales of fresh
chicken raised without antibiotics, totaling an additional 70 million
pounds of chicken a year.
But Tyson's success came at a high cost for its competitors, said
Randall K. Miller, a partner at Arnold and Porter and lead counsel for
Sanderson and Perdue. The companies sued in January seeking to force
Tyson to stop making claims that its products were antibiotic free.
Sanderson blamed Tyson's ad campaign for the loss of a $4 million
account, and Perdue blamed it for a $10 million loss in revenue.
Greater damage, however, was done to the companies' reputations, Miller
said. In seeking an injunction against Tyson's ad campaign, Sanderson
and Perdue argued that Tyson's "raised without antibiotics" claim
caused irreparable harm by implying its competitors' products contained
antibiotics or dangerous additives and were therefore less safe.
Separately, Sanderson and Perdue also petitioned USDA to rescind its
approval of Tyson's "raised without the use of antibiotics that impact
antibiotic resistance in humans" label, citing both the use of
antibiotics in unhatched eggs and in chicken feed.
In an April 30 letter to Miller regarding the companies' petition,
the USDA said the egg injecting practice was "of serious concern."
"Rather than discuss any specifics to this particular case, [the Food Safety and Inspection Service
of USDA] has requested additional information to help us determine what
the facts are in this situation," FSIS spokeswoman Amanda Eamich said.
Hogberg said Tyson has been forthright with regulators. He said he hopes Tyson and USDA can resolve the matter quickly.
"As we did in working with them on the qualified claim last fall . .
. we would hope the process would be similar so we can preserve this
benefit for the mainstream consumer," he said.
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