US judge rejects Ben & Jerry bid to halt settlement sales during legal battle

Ruling calls ice cream maker’s claims of imminent harm to its brand ‘too speculative,’ in a setback for the Vermont company, as it seeks to pull products from West Bank

Luke Tress is an editor and a reporter in New York for The Times of Israel.

Pedestrians walk past the Ben & Jerry's shop on Church Street, in Burlington, Vermont, March 11, 2020. (AP Photo/ Charles Krupa)
Pedestrians walk past the Ben & Jerry's shop on Church Street, in Burlington, Vermont, March 11, 2020. (AP Photo/ Charles Krupa)

NEW YORK — A US federal judge on Monday shot down an injunction request from Ben & Jerry’s that sought to temporarily halt sales of its products in West Bank settlements, part of an ongoing legal battle between the ice cream maker and its parent company.

Ben & Jerry’s had sought to prevent its parent firm Unilever from permitting the licensing, sale, distribution or use of Ben & Jerry’s products in the West Bank, during the legal proceedings.

The courtroom struggle stems from the ice cream maker’s attempted boycott of Israeli settlements last year, and has spiraled into a rare legal conflict between a major company and its parent corporation.

Ben & Jerry’s sued Conopco, Unilever’s main US branch, on July 5, after Conopco spun off Ben & Jerry’s Israel, granting it independence as part of a legal settlement. Ben & Jerry’s says the move violated the acquisition deal it had signed with Unilever in 2000. The two sides had a hearing with the judge on August 8, after mediation efforts failed.

US District Judge Andrew L. Carter, Jr., who is handling the case in New York’s federal Southern District Court, denied the Ben & Jerry’s request for the injunction in a ruling issued Monday, saying the company’s arguments were “too speculative.”

The Vermont-based company had argued that its Israeli branch could take new flavors and change their branding to pro-settlement slogans, undermining the Ben & Jerry’s social image. For example, Ben & Jerry’s could make a flavor in support of Palestinians, and the Israel branch could then take the same flavor and brand it as pro-settlement, the lawyers argued. Ben & Jerry’s considers the branding surrounding its social mission and activism as key to its business success.

Ben & Jerry’s also said conflicting labeling could confuse consumers.

To meet the threshold for a preliminary injunction, the ice cream company needed to show it would suffer “actual or imminent” irreparable harm, absent an injunction.

In a response to the Ben & Jerry’s arguments, the judge said “neither reason suffices” to order the move.

“Such purported harm is too speculative,” the judge said, agreeing with the arguments put forward by lawyers for Ben & Jerry’s Israel.

“Plaintiff has failed to demonstrate irreparable harm,” the judge said in his ruling. “The injunctive relief sought cannot issue on the basis of a hypothetical scenario.”

The judge said Ben & Jerry’s Israel will only use Hebrew and Arabic branding, differentiating its products and “mitigating, if not eliminating, the possibility of reputational harm.”

Pro-Israel demonstrators protest against Ben & Jerry’s over its boycott of the West Bank, and against antisemitism, in Manhattan, New York City, on August 12, 2021 (Luke Tress/Flash90)

Last year, Ben & Jerry’s announced a boycott of “occupied Palestinian territory,” saying the occupation conflicted with its company values. The decision, made independently of parent company Unilever, caused the conglomerate massive financial blowback, as US states enacted anti-BDS divestment laws, pulling hundreds of millions of dollars in investments.

Ben & Jerry’s Israel and its owner Avi Zinger refused to comply with the settlement boycott, arguing it was illegal under Israeli and US law. Their license to sell the ice cream was set to expire at the end of 2022, meaning the boycott never came into effect.

Ben & Jerry’s is a wholly owned subsidiary of Unilever, despite its board’s independence on some matters. Unilever is a UK-based conglomerate and one of the largest consumer goods companies in the world, with some 400 brands and a market value of around $116 billion.

The convoluted case has been a thorn in the side of Unilever, highlighting both the difficulty of enacting economic boycotts meant to isolate Israel, and the pitfalls of progressive corporate activism for large businesses.

Last year’s boycott announcement came after Ben & Jerry’s was already under heavy pressure from progressive and anti-Israel activists to condemn the Jewish state, during a conflict between Israel and Gaza terror groups.

The decision sparked uproar in Israel and among some US Jewish groups, many of which called it antisemitic, since the company had no boycotts against any other area of the world.

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