The Wall Street Journal-20080126-Tyson Adjusting Advertising After Complaints
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Tyson Adjusting Advertising After Complaints
Tyson Foods Inc. said in federal district court that it is revamping the advertising of its antibiotic-free chicken products, after competitors had alleged false and misleading advertising by the company.
In court filings, the company brushed off competitors' allegations and said it had already independently changed the advertising.
"No advertisement containing the 'Raised Without Antibiotics' claim was approved to run after January 20, 2008," according to a legal filing by Jenna Johnston, senior counsel for Tyson.
Competitors claimed they had witnessed the ads being aired and displayed since then.
The snag with the ads represents the latest setback for the Arkansas-based chicken producer, which has been touting its line of antibiotic-free chicken as part of a $70 million advertising campaign.
Last month, Tyson agreed to stop using a version of its antibiotic- free labels on its chicken products after the U.S. Department of Agriculture concluded it had awarded the label mistakenly, because the company was still using medication that it characterized as antibiotics.
Despite the USDA decision, Tyson continued advertising the product as "antibiotic free" without further clarification on billboards and television, using similar language that was contained on the prohibited labels. Tyson said the USDA never outlined a time-frame for the phaseout of "nonlabel advertising such as television ads," according to a legal declaration by Nancy Bryson, an attorney representing Tyson. She also is the former general counsel of the USDA that oversaw the original approval of Tyson's label.
Four of Tyson's competitors -- Perdue Farms, Sanderson Farms Inc., Gold'n Plump Poultry Inc. and Foster Poultry Farms -- accused Tyson of displaying misleading advertising claims in violation of federal and state law and sent a letter to Tyson asking the company to pull its ads.
In a response letter dated Jan. 18, Tyson's attorneys neither admitted nor denied the claim, but said "making threats premised on baseless assertions only reinforces Tyson's view that it is your clients -- not Tyson -- who are engaging in unfair and anticompetitive conduct aimed at stifling, not promoting, competition."
This past week, the four companies, who have formed a group they call the Truthful Labeling Coalition, asked the court to issue a temporary restraining order. A judge denied the competitors' request for a temporary restraining order Friday.
Tyson has been in a protracted regulatory battle with the USDA for months now. In May, the agency approved Tyson's antibiotic-free label. In June, the company announced that it was "the first major poultry company to offer fresh chicken raised without antibiotics on a large scale basis" and it rolled out the new ad campaign titled "Thank You," which was intended to "convey how Tyson products help make Mom a hero at mealtime." But in September the government agency said that it had mistakenly approved the label and demanded that Tyson remove the labels or clarify them.
At issue is Tyson's use of an animal medication called ionophores, commonly added to poultry feed to help prevent an intestinal parasite that can lead to lower body weight or death in poultry, causing economic loss to producers.
Ionophores aren't used in human medicine and therefore don't pose an immediate risk of causing antibiotic resistance in humans, something that is of growing concern to the medical and scientific communities.
Most large poultry producers use ionophores. Tyson disputes the USDA finding and says the department knew that it was using the medication when it was awarded. Still, Tyson changed its labels to read "Chicken Raised Without Antibiotics that impact antibiotic resistance in humans."
