39. The Commission has stated that before issuing a complaint, it will examine more closely products that depend on repeat purchases for business, as market incentives for such products place constraints on the likelihood of deception. In the instant case, however, where it is the method of production, rather than the final product, that is the subject of controversy, the effect is exactly the opposite—to encourage repeat business, the seller is more likely, rather than less likely, to be deceptive about such manufacturing methods in order that repeat purchasers will not be dissuaded.

40. Just as, for example, a certain company that produces apparel under sweatshop conditions would want to hide its method of production from its customers, so too does the California dairy industry have strong incentives to cover up the actual conditions under which cows are kept. Unlike the constraints associated with advertising the final product, the sweatshop company would have strong incentives, were it able to get away with it, to disseminate ads featuring a state of the art facility with "happy" workers in lush surroundings in order to hide its darker reality and avoid dissuading consumers from repeat purchases. Similarly, the reality of the California dairy industry, for the majority of cows, is one of difficult, unattractive surroundings that would certainly not conjure the beauty of the CMAB ads or do anything to encourage repeat purchases.

41. Choosing to remain silent about the harsh methods of California dairy production is one thing, but making unqualified, affirmative misrepresentations about it is entirely something else. It is unethical. It is deceptive. It is unlawful.