• Ad Age , Wednesday, June 25, 2008 10:30 AM

Tyson scored a coup when it became the first marketer to receive approval from the U.S. Department of Agriculture to tout in advertising and on packaging that its birds were "raised without antibiotics." Court documents indicate that its sales jumped 35 million pounds as a result of the campaign.

The hitch is that while Tyson's chickens did not receive any antibiotics commonly given to humans, they did receive ionophores, which are antibiotics that are used in veterinary medicine. The USDA worked with Tyson to modify the claim last December to state the chickens were "raised without antibiotics that impact resistance in humans," but competitors Sanderson Farms, Perdue Farms and Foster Farms filed a false-advertising case in Maryland District Court the following month, claiming that the ad message would lead to "irreparable harm" to their brands.

When the USDA learned that Tyson was administering a small amount of an antibiotic used in humans, it rescinded approval for the modified label. Randall K. Miller, a partner with law firm Arnold & Porter who worked with both Sanderson and Perdue on the suit, says that the body of litigation will now make it harder for any company wanting to claim that its meat has been raised without antibiotics. But because Tyson has demonstrated how lucrative the market is, he says, it's only a matter of time before someone tries.

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