In a lawsuit* filed in December 2020, plaintiff Quynh Phan argued that, “Reasonable consumers, seeing Sargento’s prominent ‘No Antibiotics’ representation, would expect that the products are made without the use of antibiotics and, therefore, never contain antibiotics.”
Sargento, in turn, said its labels explicitly spell out that ‘No Antibiotics*’ means that ‘*Our cheese is made from milk that does not contain antibiotics.’
Even if consumers did read this “fine print disclaimer,” argued the plaintiff, it is false, because independent lab testing conducted in July 2020 revealed that Sargento mild sliced cheddar had “detectable levels (0.985ppb) of the antibiotic sulfamethazine.“
Sargento: Lawsuit ‘based on an alleged misrepresentation that does not exist’
In a motion to dismiss the case, however, Sargento said the lawsuit was “based on an alleged misrepresentation that does not exist.”
The meaning of the phrase, ‘Our cheese is made from milk that does not contain antibiotics’ is crystal clear, it argued, “Yet Plaintiff attempts to base consumer ‘fraud’ claims on an entirely different representation that appears nowhere on any of Sargento’s packaging—i.e., that the cheese is made with milk from cows who were not given antibiotics.”
As for the antibiotic sulfamethazine allegedly found in one sample of one Sargento cheese product, said the cheesemaker, the amount was “so small that it represents the equivalent of less than half a teaspoon of water in an Olympic size swimming pool.”
Judge: We don’t know what a reasonable consumer would make of this claim
However, US District Judge for the Northern District of California, Edward Chen, was not persuaded by Sargento’s arguments, writing in a June 2 order that, “There is a factual dispute as to what a reasonable consumer would understand from the label, thus making dismissal [at this stage of proceedings] inappropriate.
“Even assuming that a reasonable consumer would see and read the disclaimer in small font, it is plausible that a reasonable consumer could still believe that there are no antibiotics in the milk because the cows producing the milk were not given antibiotics.”
It’s also not 100% clear that reasonable consumers would think a trace amount of antibiotics is acceptable on a product making a ‘No Antibiotics’ claim, he said, although he acknowledged that when it came to trace levels of pesticides such as glyphosate in foods making ‘natural claims, other judges had taken a different view.
However, when it came to the plaintiff’s standing, the scope of the class (es) of consumers the plaintiff could represent, and whether a single test on a single product was representative of other Sargento products, the plaintiff was on far shakier ground, said Judge Chen, who has given Phan the opportunity to amend several claims.
Attorney for plaintiff: ‘The beginning of the end for deceptive ‘No Antibiotics’ labels on animal food products’
Jay Shooster, of counsel at Richman Law & Policy (which is representing the plaintiff), told FoodNavigator-USA: “While the Court agreed with some of Sargento’s procedural arguments, the substance of the decision is a major victory for consumers. We believe that this signifies the beginning of the end for deceptive ‘No Antibiotics’ labels on animal food products.”
Asked whether his firm planned to amend any of the claims, he said: “We can’t comment on any amendment at this time.”
Sargento said it does not comment on pending litigation.
*The case is Quynh Phan, et al. v. Sargento Foods Inc., Case No. 5:20-cv-09251, filed in December 2020 in the U.S. District Court for the Northern District of California
Antibiotics and dairy cows: In the wake of growing evidence of the risks of antimicrobial resistance in humans, the FDA recently moved to eliminate the use of antibiotics for production purposes in farm animals (for growth promotion and feed efficiency in animals raised for meat) and has urged farmers to use them more judiciously when treating sick animals.
Milk shipments are tested for medically important antibiotics such as cephalosporin, the most widely used antibiotic for treatment of mastitis, and when cows are treated, farmers discard their milk until the residues disappear.
The legal standard requires that milk contain no detectable antibiotics when analyzed using approved test methods. According to the FDA, sulfamethazine is prohibited from use in lactating dairy cattle and there is ‘no acceptable level’ of residue.