22. For the Commission to find an ad unlawfully deceptive, there must be a material representation, omission, or practice that is likely to mislead the reasonable consumer. Further, if a particular consumer group is targeted, or likely to be affected by the ad, the Commission will examine an ad from the perspective of a reasonable member of that group. The CMAB ads are not directed at, nor are they likely to affect, health-conscious consumers, as they make no claims, nor could they, of any superior nutritional value of California cheese. They are not directed at, nor are they likely to affect, consumers who purchase dairy products for the taste, as they make no claims that California cheese tastes better than any other particular kind. The consumers most likely to be affected by the ads are those conscientious and compassionate people who would reasonably be concerned that cows might suffer to produce dairy products, and who are misled by the ads. Being misled by the ads is a reasonable response by such consumers, as the only claims, express or implied, made in them operate to create a broad impression as to the "well-being" of California dairy cows and the clean air and sunshine they are portrayed as constantly enjoying, an impression that is certainly not representative of the majority of the industry.

23. As set forth in the Commission’s policy statement on deceptive advertising, the test for materiality is "whether the act or practice is likely to affect the consumer’s conduct or decision with regard to a product or service." In this case, the method matters. The process under which a product is manufactured is important to consumers and, therefore, a material element of the product itself. Thus, misrepresentations as to the method of production can be as injurious to consumers as misrepresentations about the product itself. If, for example, a consumer buys a shirt labeled "Made in the USA," and the shirt is actually made in a foreign country, possibly even by children or in sweatshops, then despite having received the shirt purchased, the consumer is nevertheless injured by the fact that he or she was deceived into unwittingly supporting an abusive and immoral industry. In short, consumers purchase more than just the product itself, they purchase the method of production as well.

24. The method of production is even more critical when the representations about it implicate animal welfare issues. It is simply common sense that conscientious consumers would prefer to purchase a product that is more compassionate toward animals than competing products.

25. Dr. Grandin has written that "the public is becoming increasingly concerned about how animals are treated." (Grandin, Temple. "Animal Welfare is a Public Concern," at http://www.grandin.com/welfare/public.welfare.html.) That sentiment has been echoed not only among traditionally animal welfare-oriented consumers and groups, but more recently among those in the "food" animal industry itself. Certainly, the federal Humane Methods of Livestock Slaughter Act and state animal cruelty laws demonstrate that the American public takes very seriously issues relating to the treatment of animals.

26. Conscientious, or "compassionate," consumers, reasonably relying on the fact that the representations made in the advertisements are true (lest the advertisers be in violation of federal law), are more likely to purchase California cheese and dairy products over others, not based on nutritional value or taste, but rather for the satisfaction that such a choice would not contribute to any discomfort to cows or degradation of the environment.

27. Consumers would have to conduct extensive research to uncover the inaccuracies of the ads and discover the intensive conditions under which so many of California’s real dairy cows are actually kept, research which, even if they were able to do, they would be deterred from doing because the ads operate to create a false sense of ease and comfort about the industry that the consumer would have no reason to believe is untrue. As a result, the consumer suffers both monetary and psychic injury and does not, in fact, receive the product being purchased, that is, a dairy product produced from cows enjoying comfortable, easy lives, such as those depicted in the ads.

28. By claiming that California dairy cows are "Happy Cows," the CMAB is making an explicit representation not necessarily of the cows’ state of mind, but unquestionably of their state of being. The representation that California cows are kept under conditions of ease and comfort is a fiction in the majority of California’s dairies.

29. It should be noted that while intent to mislead is not required to make a final determination that an ad is unlawfully deceptive, it can be a factor for the Commission's consideration. The Commission has acknowledged in its policy statement that an interpretation of an ad claim will be deemed both reasonable and material if it is the claim the advertiser intended to convey. In this case, the CMAB knew that one of the messages conveyed by the ads was that California dairy cows were beautiful and healthy (which is implicitly a result of their "happy" lives). In a March 31, 2001, article in the Santa Rosa Press Democrat, a Happy Cows ad writer is quoted as stating that he was looking for a new way to view cows. "‘We thought one could be from a guy’s point of view, like how healthy and beautiful California cows look,’ he said. ‘And maybe we could get that message across in a fresh perspective by looking at it from a male bovine point of view.’" (Emphasis added.) That the method of spreading the message of the health and beauty of California’s dairy cows and their surroundings was carried out in a humorous and light-hearted way does not diminish the fact that the ads mislead consumers in a material way. That a false message is funny or entertaining is not a defense to illegal deception.

30. The Commission has held that omissions of material fact can be as unlawfully deceptive as affirmative misrepresentations, particularly where the omitted information is needed to evaluate the product or discover that the ads’ claims are false. Whatever the Commission’s opinion as to the intensive conditions suffered by the majority of California’s dairy cows, at the very least, it must acknowledge that concerned consumers would want and, in fact, require, truthful information as to the actual conditions under which the majority of cows are kept, rather than the falsely overstated implications of the idyllic depictions in the advertisements, so that they can make informed decisions as to whether they wish to support such an industry. While the Commission can’t force the CMAB to depict the actual conditions under which the majority of California’s dairy cows are kept, it can, and in this case it must, prevent the organization from making overly broad and misleading, unqualified implications on animal welfare and environmental issues.