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GREEN BAY - The battle over recombinant bovine somatotropin (rbST) isn’t over quite yet.

A new skirmish is erupting between the maker of the only approved rbST product, Posilac, and the dairy company Arla, which recently launched an advertising campaign that takes a dim view of the supplemental dairy hormone.

Following the April 25 launch of Arla Foods’ ad campaign, Eli Lilly and its animal health division, Elanco, filed suit seeking a temporary restraining order to halt the ad campaign. A hearing on that case will be held June 7 in the U.S. District Court for the Eastern District of Wisconsin, Green Bay Division.

The plaintiffs are asking for a preliminary injunction to halt what they call “a false advertising campaign” by the defendants.

In documents that were filed in the case, and obtained by Wisconsin State Farmer, Elanco notes that Arla’s ads represent that milk and dairy products from cows not supplemented with rbST “are more wholesome and of better quality than milk and dairy products from supplemented cows.”

The lawsuit has come up just as another group of Midwest dairy processors have told their producers that they will not accept milk from rbST-treated cows after January 1, 2018 because that is what their customers want. Many have said that use of the hormone must be discontinued by December 1, 2016 to meet the end-of-year deadline.

Grassland Dairy — before it became infamous for dropping dairy farmers from its patron list — notified its farmers that they must stop using rbST by January 1 of this year. Other company and cooperative officials have said what Grassland said earlier, that they are concerned about their customers’ opinion, driven by consumer preferences, which generally runs against the use of the supplemental hormone.

Posilac, the only approved rbST product, gained federal approval and has been legal to use on dairy cows since 1993. It was developed by Monsanto, which sold the product to Elanco. The U.S. Food and Drug Administration reviewed the safety of rbST in 1999, 2000, 2013 and 2016 and each time concluded it was safe.

However, opponents of the product have, over the years, pointed to things they say affect its safety. Insulin-like growth factor (IGF-1) is higher in the milk of treated cows, they say, and have linked that factor to cancers of the breast, colon and prostate. Opponents have also argued that use of the hormone leads to higher somatic cell counts in treated cows as well as lower protein and higher fat content in the milk.

No scientific basis

Robert Collier, PhD, a professor emeritus at the University of Arizona School of Animal and Comparative Biomedical Sciences, filed a brief on behalf of Elanco in the Wisconsin case, stating that there is “no scientific basis for any claim that milk from cows supplemented with Posilac is any different from or less safe than milk from other cows.”

Collier added that there is no scientific basis for a claim that milk from supplemented cows “is any less wholesome, less healthy, compositionally different or otherwise of inferior quality relative to milk from other cows.”

He was the lead scientist who oversaw all of the animal safety and some of the human safety studies leading up to the approval of rbST. He has published extensively on the subject of rbST and its safety.

Last year the FDA considered and rejected the assertion that increased IGF-1 levels can lead to cancer in humans and that rbST supplementation “does not produce a biologically significant or deleterious effect in people,” Collier pointed out in his comments.

Arla’s campaign

Into this fray comes the Denmark-based Arla Foods, with a dairy plant called Hollandtown Dairy in Kaukauna, WI. At least in part, the case was filed in Wisconsin because Arla does business in the state.

It may also have something to do with the state’s prohibition against advertising that differentiates “either directly or by implication” that dairy products produced with milk from cows treated with rbST are of “lower quality or are less safe or less wholesome than other dairy products.”

On April 25, Arla launched what a company press release called a $30 million advertising campaign centered on a 30-second television commercial depicting rbST as a six-eyed monster with electric fur capable of electrocuting a person who touches it. The campaign also includes print, digital, social media, public relations and consumer promotions with ad buys on 20 national cable networks as well as broadcast and video on demand.

Elanco is arguing that the whole ad campaign is built on a “fundamental deception” and called it “the most egregious false advertising campaign in the history of the U.S. dairy industry.”

The advertisements give the message that Arla’s cheese products are safer and more wholesome than others because Arla does not use milk from cows supplemented with Posilac. Those ads assert that rbST is “weird stuff” that people “should not feel good about consuming.”

In the court papers, Elanco cites the FDA’s repeated assertions that rbST is safe and that there is no discernable difference between the milk of cows supplemented with rbST and that of cows which are not injected with the product.

Elanco called Arla’s ad campaign “particularly egregious” because Wisconsin has state law prohibiting claims which state or imply that milk from untreated cows is in some way better and because FDA has issued similar guidance to the same effect.

By ignoring the state law and federal guidance Arla’s ads “trample federal and state truth-in-advertising laws,” Elanco said.

Misleading message

Arla’s advertising campaign is misleading to consumers, Elanco says, adding that it is also causing “irreparable injury” to Elanco, which is why it is “urgently asking” for the court to halt the advertising campaign. “Any attack on the safety of rbST is therefore and attack on Elanco,” the company argues.

Elanco officials state that since the ad campaign started, some dairy farmers have announced they will abandon Posilac to “assuage the fears that Arla is stoking among consumers.”

The court should promptly curtail the ads, Elanco argues, or it will “inflict harm on Elanco’s business and goodwill that could never be fully quantified or remediated through money damages alone” since it is the only company associated with Posilac.

In launching its ad campaign, Arla said it was their move to be part of its “rapid and bold expansion into the U.S. grocery retail dairy” adding that it “comes at a tipping point of Americans’ increasingly voracious desire to know more about the products they’re eating and feeding their families.”

The ads include the standard disclaimer “no significant difference has been shown between milk derived from rbST-treated cows and non-rbST-treated cows” but Elanco argues that it is tiny, not visible to the ordinary viewer and appears only briefly. “It is so obscure that the overwhelming majority of consumers would not notice it,” they note.

Besides, they argued, the disclaimer contradicts the commercial’s message that rbST is unsafe and “weird” and should be avoided.

Elanco also takes issue with Arla’s characterization of itself as a purveyor of Wisconsin cheese and a farm-to-fridge dairy cooperative “with a heritage of producing natural, better-for-you products.” The company is, says Elanco, a $10-billion international conglomerate and is the fourth-largest dairy company in the world.

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