Tyson faces Arkansas class action over chicken labeling

TEXARKANA, Ark. � Shortly after an injunction barring Tyson Foods from advertising that its chicken products do not contain antibiotics, consumers are filing class actions claiming the poultry giant used deceptive marketing.

The class actions allege that Tyson "labeled its chicken as antibiotic free, when it knew it used antibiotics in raising chicken."

Arkansas residents Rosalyn Mize and Linda Latimer filed the latest class action against Tyson Foods Inc. on June 30 in the Texarkana federal court of the Western District of Arkansas.

According to the complaint, Tyson began an extensive marketing campaign in June 2007 to promote products labeled "raised without antibiotics" and "100 percent all natural," in an effort to meet the public's growing demand for healthier products.

Tyson voluntarily removed its chicken that was labeled "raised without antibiotics" after an U.S. Department of Agriculture investigation reversed the originally approved application which included the feed ingredient ionophores, a commonly-used antimicrobial. Ionophores are not believed to raise human health concerns.

Further complicating the labeling issue, the plaintiffs allege that Tyson Foods failed to disclose that it administers the antibiotics Gentamicin and Ceftiofur into the eggs of the chickens.

According to the complaint, Tyson uses these antibiotics as a vaccination against Marek's disease, to prevent illness and death in chicks. The antibiotics are given in Tyson's hatchery two or three days before the eggs hatch.

The Food and Safety Inspection Service gave Tyson until July 9 to stop using the label.

"Tyson's defense is that it defines the word 'raised' for its labels differently than it is commonly understood to mean by customers," the complaint alleges.

By the company's definition, "raised" means from the time of hatch to slaughter.

Questions common to the proposed class of plaintiffs include whether Tyson used antibiotics in raising chickens, whether the marketing campaign and promotions were deceptive, whether Tyson was unjustly enriched form the promotions, if the company violated the Lanham Act or other consumer protections laws.

The complaint is seeking more than $5 million in damages for a refund of all monies received from the purchase of Tyson chicken that was labeled free from antibiotics.

In June, Tyson foods fired back at the USDA with a lawsuit over the ruling. Believing it to be the victim of flawed labeling procedures, Tyson accuses the USDA's ruling of being made "arbitrarily and capriciously."

Since the labeling issues became public, Tyson's shares have fallen dramatically from a $24.04 high to Wednesday's closing of $14.31.

Texarkana attorneys James C. Wyly and Sean F. Rommel of the Patton Roberts LLC law firm and Little Rock attorneys Jeremy V. Hutchinson and Jack T. Patterson are representing the proposed class.

U.S. District Judge Harry F. Barnes is assigned to the litigation.

Case No 08-4051