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Tyson Foods to Stop Making Antibiotic-Free Claims

Jun 3, 2008 | Parker Waichman LLP

Yesterday, Tyson Foods Inc. announced it would "voluntarily withdraw" advertising and labels claiming that its poultry products do not contain antibiotics; this, following a federal court injunction stopping the practice.  It seems there is some controversy over antibiotics in Tyson chicken products, despite its claims to the contrary.

Tyson said it notified the U.S. Department of Agriculture (USDA) that it would stop using the "raised without antibiotics" chicken label and asked the USDA—which previously had approved the slogan—to start "a public process to bring more clarity and consistency to labeling and advertising rules" on antibiotic claims.  Tyson claimed it based the slogan on the absence of any antibiotic believed to affect humans.  "We still support the idea of marketing chicken raised without antibiotics because we know it's what most consumers want," Tyson senior vice president Dave Hogberg said. "However, in order to preserve the integrity of our label and our reputation as a premier company in the food industry, we believe there needs to be more specific labeling and advertising protocols."

U.S. District Judge Richard Bennett in Baltimore set a May 15 deadline to stop Tyson from running any of the "raised without antibiotics" advertisements.  The injunction followed a suit by Tyson competitors Perdue Farms Inc. and Sanderson Farms Inc. which both claimed that Tyson's advertising was misleading.  Although Tyson appealed the ruling, the 4th Circuit Court of Appeals in Richmond, Virginia, denied a motion by Tyson to stay the order in May.

Laurel, Mississippi-based Sanderson Farms argued that it lost a $4 million account to Tyson and Salisbury-based Perdue claims it has lost about $10 million in revenue since last year, both due to the Tyson “raised without antibiotics” advertising campaign.   Charles Hansen of the Truthful Labeling Coalition—members include Perdue; Sanderson; and Livingston, California-based Foster Farms—requested that the USDA rescind its approval for Tyson's labeling.

After approving the "raised without antibiotics" advertising, the USDA later told Tyson that when it approved the no-antibiotics label, it mistakenly overlooked additives called ionophores used in feed for Tyson's chicken.  Regulators said the USDA's Food Safety and Inspection Service (FSIS) has a long-standing policy of classifying ionophores as antibiotics. Tyson disagreed, saying the U.S. Food and Drug Administration (FDA) did not consider ionophores antibiotics.

Hogberg of Tyson testified in court that the company spent about $16 million on the original publicity campaign, including about $4 million in promotional materials.  Tyson said Monday it has begun designing and ordering new labeling and packaging for its poultry products and said its decision would not cause any changes in how it "protects the health of its birds," adding that, "The company does not use antibiotics for the purpose of growth promotion.  On those rare occasions when antibiotics are used to treat an illness, it is on a prescription-basis only to protect birth health."

Tyson is the world’s largest meat producer and the country's second-largest chicken producer after Pilgrim's Pride Corp.

An ionophore is a molecule that permits ions to cross lipid bilayers.  Some ionophores are considered antibiotics.


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