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Eli Lilly & Co. v. Arla Foods, Inc.

ELR Citation: 48 ELR 20100
Nos. 17-2252, (7th Cir., 06/15/2018)

The Seventh Circuit upheld a preliminary injunction barring a global dairy conglomerate from making any claims in its advertisements that cheese from cows treated with recombinant bovine somato-tropin (rbST), an artificial growth hormone, is dangerous and unhealthy. The conglomerate launched an advertising campaign assuring consumers that its cheese contains no "weird stuff" or "ingredients that you can’t pronounce," and identified rbST in particular. The only distributor and manufacturer of FDA-approved rbST filed suit, alleging that the ads contain false and misleading statements in violation of the Lanham Act. The lower court found that milk from rbST-treated cows is equally safe and healthy for human consumption as other milk, concluded that the ads were misleading, and issued the preliminary injunction. On appeal, the conglomerate argued that the manufacturer failed to produce consumer surveys or other reliable evidence of actual consumer confusion. But the appellate court rejected this argument, ruling that consumer surveys or other "hard" evidence of actual consumer confusion are unnecessary at the preliminary injunction stage. The court also rejected claims that the manufacturer failed to submit adequate evidence linking the ad campaign to decreased demand for its rbST. The evidence of causation is sufficient at this stage, as the harm is easily traced since the manufacturer makes the only FDA-approved rbST supplement on the market. In addition, the injunction is sufficiently definite and adequately supported by the record. As such, the injunction was affirmed.