7. As set forth in its policy statement on deception, the "Commission will find an act or practice deceptive if there is a misrepresentation, omission, or other practice, that misleads the consumer acting reasonably in the circumstances, to the consumer’s detriment." Before this issue can be addressed in the instant case, it is first necessary to examine the actual conditions under which California’s real dairy cows are routinely kept.

8. Contrary to the depictions in the Happy Cows ads, the vast majority of California dairy cows do not live easy lives. They are not typically permitted to roam freely in grass-covered, pastures of rolling hills and shade trees, but are kept on dry lots of urine- and dung-fouled dirt (urine- and dung-fouled mud at some times of the year), and sometimes concrete. According to a University of California-Davis study, because of the expense of real estate in California, dry lot farming was developed and is the predominate method of keeping dairy cows today. "Dry lots allow for a more intensive system of milk production than traditional pasture-based systems." (Dairy Care Practices, University of California-Davis, 2d Edition, June 1998.)

9. The result of dry lot farming is that California dairy cows are kept in larger numbers in smaller areas than anywhere else in the country. In 1998, the national average dairy herd size was 60 cows; California herds averaged 650 cows. And the herd sizes are growing; by last year, the average had ballooned to 720 cows. Currently, a number of operations in the state milk as many as several thousand cows each day.

10. Dairy cows are pushed hard; California dairy cows are pushed even harder. In 1997, the nationwide annual average milk production per cow was 16,915 pounds; in California, the average was 20,851 pounds. This inordinately demanding level of milk production, which is significantly higher than a cow would naturally produce, is not achieved as a result of California dairy cows being "happier" than others across the country; it is the result of bovine growth hormones or other drugs, intensive milking regimens, and high-energy feed concentrates, all designed to stimulate the cows into producing as much milk as possible before being sent to slaughter.

11. The regular administration of growth hormones and other drugs, feed concentrates, and unduly intensive daily regimens and living conditions often result in California dairy cows suffering from painful maladies, such as laminitis (a painful hoof condition), mastitis (a bacterial infection of the cow’s udder), milk fever (caused by inadequate levels of calcium in the cow’s blood), and Johne’s disease (a bacterial infection that can result in severe weight loss, diarrhea, and even death).

12. In order to produce milk, cows must be impregnated. California dairy cows are repeatedly impregnated, most often by artificial means, throughout their lives, and continue to be milked during most of their pregnancies. They generally deliver a calf every twelve to thirteen months, and when they can no longer deliver calves or produce milk, they are sent to slaughter; in other words, their bodies are treated like machines to be used until they can’t keep up. Slaughter occurs at only a fraction of what a cow’s natural lifespan would otherwise be.

13. The most widely used method of artificial insemination involves a process called rectal palpation. In this method, which is typically first employed when the cow is barely more than a year old, an immobilization device is used (often a restraint stanchion), a "farmer" puts a plastic sleeve (that runs all the way to the shoulder) on his arm, and then inserts his arm into the dairy cow’s rectum. The farmer then feels through the rectal walls and directs a catheter as it is pushed into the cow’s cervix and uterus where the semen is deposited. As with any invasive procedure, the risk of injury is always present. And for each of California’s 1.6 million dairy cows who are repeatedly impregnated throughout their lives, with minimal "dry" time between pregnancies, the injury risks (both to mother and calf) are significant and severe. In fact, the difficulties associated with calving often results in crippling paralysis or worse for mother dairy cows. Calving problems are the leading cause of death on the farm for dairy cows. And the calves are at great risk as well. Fetal deaths among California dairy cows number in the tens of thousands every year. And of the hundreds of thousands of calves that are born alive each year, as many as ten percent die before they even reach weaning. When cows are treated as mere milk machines, injury and death risks, such as those just detailed, are calculated simply in terms of economics, rather than welfare.

14. Dairy cows are milked several times a day for nearly their entire lives, which, as indicated above, last only as long as they can continue to meet the inordinately high production demands of the dairy industry. Because California dairy herds are so large, typically, giant mechanical "milking wheels" are used to milk many cows simultaneously. These wheels serve to make the lives of dairy cows even more difficult because, at any given operation, they enable operations to milk each cow a higher number of times per day. The cows are hooked by their udders to electronic milking machines, which can cause the cows to suffer electrical shocks, painful lesions, and mastitis.

15. As an example of just how hard dairy cows are pushed, consider the case of "downer" cows. A significant number of cows arrive at slaughterhouses throughout the country unable to stand. Whether it is because they are injured, diseased, crippled, or simply too weak to support themselves, these cows suffer greatly as a result of their difficult lives. Invariably, the highest percentage of downer cows arriving at slaughterhouses are dairy cows. Among the reasons for this are the intense difficulties and dangers associated with a life of constant milk production. Dairy cows are forced to produce significantly larger amounts of milk than their bodies are designed for. Nutrients, such as calcium and magnesium, that would otherwise be used for the cows’ own nutritional needs, are diverted to the milk the cows produce. As a result, cows often suffer from brittle, broken bones, milk fever or other diseases, or emaciation and weakness to the point that they cannot even stand up. Also, poor sanitation and housing conditions on many farms result in bacterial infections and injuries from falling on wet, slippery ground. California dairy cows hardly live lives of comfort and ease.

16. Further, whether downers or not, because of the repeated calvings (which are physically demanding for the mother and are accompanied by constant risk of complications, such as paralysis), the steady administration of hormones and other drugs, and the constant depletion of desperately needed nutrients throughout their lives, dairy cows are severely debilitated by the time they are sent to slaughter. As a result, much of the meat used to make hamburgers in this country, meat which is typically considered too tough to be used for "prime" beef, comes from the worn out bodies of dairy cows.

17. As further evidence of how much harder California dairy cows are pushed than those in the rest of the country, the percentage of dairy cows selected for slaughter each year is higher in California than anywhere else. According to statistics taken from the United States Department of Agriculture and the University of California-Davis study, the national average of dairy cows "culled" from large herds each year is just over twenty-five percent; in California, the average is one-third, which translates to a significantly higher number of cows, considering California’s average herd size is more than ten times the national average. Of the cows culled from the herd, more than half are suffering from debilitating medical conditions, lameness or injury, disease, or reproductive distress. Rather than treat these conditions, many of which are intensely painful, or retire the cows to pastoral fields where they can live out their lives in the type of comfortable surroundings depicted in the ads, these cows are sent to auctions, markets, and stockyards where they are sold for slaughter. In more than twenty percent of cases, they are sold directly to a meat packer or slaughter plant. Unlike the luxurious depictions in the Happy Cows ads, the majority of California dairy cows endure hard lives of pain, disease, suffering, and work. They are worked until they cannot possibly work anymore, and then their lives are ended prematurely. California dairy cows do not die of old age; the ones who don’t die prematurely on the "farm" or during transport inevitably end up at slaughterhouses, where they are hung upside down by one leg and have their throats slit, most without ever having seen a field, a blade of grass, or a shade tree.

18. The Happy Cows ads show young calves roaming in the fields with adult cows; this simply does not happen. In fact, nearly all calves born on dairy operations in California are removed forever from their mothers within twenty-four hours of their births, causing their mothers obvious documented distress. Dr. Temple Grandin, consultant to many of the biggest corporations in the meat and dairy industry and widely recognized as one of the foremost experts on animal welfare and handling, has spoken about the intensely traumatic experience of separating calves from their mothers. In his book An Anthropologist on Mars (Alfred A. Knopf 1995), Oliver Sacks wrote of a visit he and Dr. Grandin made to a cattle farm, which is usually a quiet place even on large operations, and of the great tumult of bellowing they heard when they arrived:

"They must have separated the calves from the cows this morning," Temple said, and, indeed, this was what had happened. We saw one cow outside the stockade, roaming, looking for her calf, and bellowing. "That's not a happy cow," Temple said. "That's one sad, unhappy, upset cow. She wants her baby. Bellowing for it, hunting for it. She’ll forget for a while, then start again. It's like grieving, mourning—not much written about it. People don't like to allow them thoughts or feelings." (Emphasis added.) p. 267.

19. Once taken from their mothers, many of the calves are sent (through auctions, stockyards, and the like) to beef feedlots or directly to slaughter. Of the others, the females are raised to replace their mothers (often in cramped, solitary pens). The males are condemned to another fate—to be killed for veal. These calves are kept in wooden stalls or metal crates barely larger than their bodies to limit their movement only to standing or kneeling down on the bare, hard floors (some are even tied to the walls of their enclosures to restrict their movement even further). For nearly their entire lives, they are unable to lie down, turn around, or experience anything close to the pastoral fields featured so prominently in the Happy Cows ads. After suffering through as many as seventeen weeks of being handled this way, the calves are removed from their enclosures, their sore legs often too painful and swollen from lack of movement and from balancing on slatted or grated floors to even permit them to walk properly, and then shipped in all weather to the slaughterhouse, where they are killed. There is not a moment in the lives of these calves or, for that matter, most other calves born on dairy farms, that remotely resembles the idyllic depictions in the Happy Cows ads.

20. The conditions described above are just a sampling of the facts surrounding the lives of dairy cows and calves. Contrasting pictures of CMAB ad screen shots and actual California dairy cows and calves are attached to this complaint as Composite Exhibit "A(1)-(4)," and are incorporated as if fully set forth herein.

21. The CMAB ads conceal the truth by painting an artificially "Utopian" existence for dairy cows in order to increase dairy sales, and so are unlawfully deceptive to consumers. The Commission must take action to prevent such deception.