36. In its policy statement, the Commission declared that representations do not have to be verbal to be unlawfully deceptive; visual misrepresentations are actionable, as well. The totality of the circumstances will be viewed in making a decision about the advertisement. In the Happy Cows advertisements, such verbal references as "clean air" and "sunshine" being good to cows, coupled with the visual representations of sparsely populated grass-covered pastures with rolling hills and shade trees work to create an image of the California dairy industry that is luxurious to cows. For the majority of California’s dairy cows, this image is a non-existent fairy tale. The implications that California cows are "happier" than any other state’s dairy cows because, unlike the rest of the country’s cows, a California dairy cow lives an easy life without suffering only further compounds the deception.

37. It is important to note that because the CMAB ads make no claims as to the superiority of the nutritional value or taste of its cheese, but rather make only a representation as to how much better the California dairy industry is than others and how "fortunate" its dairy cows are over other cows, the underlying theme of the ads is that superior production conditions lead to a superior product. It is reasonable, then, for consumers to form conclusions based on the representations made in the CMAB ads and choose California dairy products simply because of their mistaken belief that the conditions in the ads are fairly representative of the industry. Such conclusions, however, would be false and, importantly for this complaint, would be injurious in that such consumers would be purchasing a product based on the inaccurate belief that California cows are treated luxuriously and live better lives than dairy cows anywhere else. Given the focus of the ads at issue, such a conclusion is not only reasonable and possible, it is, in fact, probable.