C.A. Says Milk Board Cannot Be Sued Over ‘Happy Cows’ Campaign

Wednesday, January 12, 2005

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C.A. Says Milk Board Cannot Be Sued Over ‘Happy Cows’ Campaign

By KENNETH OFGANG, Staff Writer/Appellate Courts

The California Milk Producers Advisory Board is a public entity and cannot be sued under the Unfair Competition Law, the First District Court of Appeal ruled yesterday.

Div. Two affirmed a San Francisco Superior Court judge’s dismissal of a suit by People for the Ethical Treatment of Animals, seeking an injunction to end the milk board’s advertising campaign with the slogan “Great cheese comes from happy cows. Happy cows come from California.”

PETA calls that false advertising. In fact, the group claims, California cows aren’t happy because they live under unsanitary conditions and are abused in order to maximize milk production.

“They routinely spend their lives in ‘dry’ [and often muddy] lots of grassless dirt,” the complaint alleged. “...They are repeatedly impregnated and then milked throughout their pregnancies. Their calves are taken away shortly after birth, many of whom are then condemned to veal crates. They commonly suffer from painful maladies from their intensive rearing. And when their worn bodies can no longer meet the inordinately high production demands of the industry, they are slaughtered.”

Not ‘Persons’

Judge David Garcia sustained the milk board’s demurrers, saying the statute by its terms applies only to “persons” and not to public entities.

The milk board is one of several marketing order advisory boards created by the California Department of Food and Agriculture, pursuant to statutory authorization, to promote specific products. Other boards promote alfalfa seeds, plums, apples, grapes, asparagus, kiwifruit, wheat, rice, tomatoes, eggs, walnuts, seafood and other commodities.

The board argued in its demurrers that it is not a person for purposes of the false advertising and unfair competition laws, and that it lacks the legal capacity to be sued. Garcia agreed with the first contention, as did the appellate panel.

Justice Ignacio Ruvolo cited several cases holding that the California State Lottery and the University of California are not persons for purposes of the UCL.

“In all of these cases, the courts noted that the definition of the term ‘person’ in the operative statutes did not include public entities, and concluded that the UCL did not otherwise evidence any intent to impose governmental liability,” the justice wrote. “We agree.”

Since other statutes, such as the Unfair Practices Act, specifically define “person” to include public entities, the justice said, the lack of inclusion of such entities in the UCL definition cannot be treated as an oversight.

Cases Distinguished

The justice acknowledged that the courts have in some cases treated public entities as persons within the meaning of various statutes that did not specifically define them as such. According to those cases, Ruvolo explained, a public entity will be treated the same as a private citizen if its sovereign power is not thereby infringed upon.

But this “infringement” test cannot be applied in contravention of the plain language of a statute, the justice insisted. And even if it were applied in this case, he said, PETA’s action would fail.

Ruvolo cited the California Marketing Act of 1937, which declares a public interest in the marketing of California commodities for the purpose of increasing demand and authorizes the creation of marketing boards like the milk board for that purpose.

The court, the justice said, has “no hesitancy in concluding there would indeed be ‘an infringement of sovereign power’ for the [milk board] to be subject to suit under the UCL for the content of one of its promotional campaigns.”

The case is People for the Ethical Treatment of Animals, Inc. v. California Milk Producers Advisory Board, 05 S.O.S. 139.