Judge Denies Tyson’s Motion To Dismiss In Antibiotics Case

A federal judge on Thursday denied a motion filed by Tyson Foods Inc. to dismiss a request for a preliminary injunction on the Springdale, Ark.-based protein giant’s “raised without antibiotics” marketing campaign.

Sources present at the hearing also told Meatingplace.com that U.S. District Court Judge Richard D. Bennett plans to issue a ruling on Sanderson Farms’ and Perdue Farms’ request sometime next week.

Judge Bennett previously told involved parties he would not issue any decisions from the bench, but changed his mind Thursday as testimony and closing arguments concluded.

Sanderson Farms and Perdue Farms are seeking a preliminary injunction to halt Tyson Foods from further advertising and marketing chicken as “raised without antibiotics” or “raised without antibiotics that cause antibiotic resistance in humans” because the companies believe the claims are misleading to consumers.

Tyson, however, argued during the hearing that it is difficult to control the use of point-of-purchase materials by retailers once those materials are distributed to stores, according to those present at the hearing.

Judge Bennett followed that testimony with questions of his own for Tyson Senior Vice President of Consumer Marketing Dave Hogberg. The judge on Tuesday asked Hogberg how quickly Tyson could rescind materials should the company discover that a chicken line contained carcinogens.

Hogberg responded that a food-safety issue would require quicker action, a response Bennett called “inadequate.”

“It is perfectly natural that one would not be particularly anxious to take down ads that puff one,” Bennett said Wednesday, according to the Daily Record (Md.). “I need to understand what the delay is because I don’t know there should be any delay, quite frankly.”

Tyson officials, however, remain hopeful about their legal prospects. “We’re disappointed the judge denied our motion to dismiss, but remain hopeful he will also deny the plaintiffs’ request for a preliminary injunction,” Tyson spokesman Gary Mickelson told Meatingplace.com. “We firmly believe we have acted responsibly in the way we have labeled and marketed our products.”

The Truthful Labeling Coalition — a group dedicated to reforming USDA’s definition of “natural” and RWA claims — was pleased with the judge’s decision.

“The court heard clear evidence that Tyson chicken is in fact raised with a type of antibiotic called ionophores, as well as compelling survey data which shows that most consumers are being misled by this claim,” the group said in a statement issued late Thursday. “The Coalition is hopeful that the court will soon make a decision to enter a preliminary injunction against Tyson Foods, effectively forcing the company to stop using its misleading raised without antibiotics claim in advertising.”

The Truthful Labeling Coalition was formed by Sanderson Farms, Gold’n Plump Poultry and Foster Farms in 2007. The group now includes Perdue Farms and some 30,000 grassroots members.

(See Poultry competitors’ lawsuit gets day in court on Meatingplace.com, April 7, 2008.)