In the

United States Court of Appeals

For the Seventh Circuit ____________________

No. 17-2252

ELI LILLY AND COMPANY and

ELANCO US, INC.,

Plaintiffs-Appellees,

v.

ARLA FOODS, INC., and

ARLA FOODS PRODUCTION LLC,

Defendants-Appellants.

____________________

Appeal from the United States District Court 

for the Eastern District of Wisconsin.

No. 17-C-703 — William C. Griesbach, Chief Judge.

____________________

ARGUED SEPTEMBER 13, 2017 — DECIDED JUNE 15, 2018

____________________

Before BAUER, ROVNER, and SYKES, Circuit Judges.

SYKES, Circuit Judge. In 2017 Arla Foods, a global dairy 

conglomerate based in Denmark, launched a $30 million

advertising campaign aimed at expanding its cheese sales in 

the United States. Branded “Live UnprocessedTM,” the 

campaign covers all major media platforms and targets the

growing market for all-natural foods. To that end, the ads 
2 No. 17-2252

assure consumers that Arla cheese contains no “weird stuff” 

or “ingredients that you can’t pronounce”—in particular, no 

milk from cows treated with recombinant bovine somatotropin (“rbST”), an artificial growth hormone. The flagship 

ad in the campaign features a vivid rhetorical flourish

implying that milk from rbST-treated cows is unwholesome. 

Narrated by a seven-year-old girl, the ad depicts rbST as 

(among other things) a cartoon monster with razor sharp 

horns and electric fur.

Enter Eli Lilly & Company and its subsidiary, Elanco US,

Inc. (collectively, “Elanco”). Elanco makes the only FDAapproved rbST supplement and markets it under the brand 

name Posilac®. Soon after the Arla ad campaign debuted, 

Elanco filed suit alleging that the ads contain false and 

misleading statements in violation of the Lanham Act.

Elanco simultaneously moved for a preliminary injunction 

and supported the motion with copies of the ads, scientific

literature documenting rbST’s safety, and evidence that a 

major cheese producer had decreased its demand for rbST in 

response to the ad campaign. The district judge concluded 

that Elanco has a reasonable likelihood of success on the 

merits and issued the requested injunction. The judge later 

modified his order to cure technical deficiencies. 

Arla appeals, arguing that Elanco (1) failed to produce 

consumer surveys or other reliable evidence of actual consumer confusion; and (2) did not submit adequate evidence 

linking the ad campaign to decreased demand for its rbST. 

Arla also challenges the modified injunction as vague and 

overbroad and lacking adequate factual findings. 

We affirm. Consumer surveys or other “hard” evidence

of actual consumer confusion are unnecessary at the 
No. 17-2252 3

preliminary-injunction stage. And the evidence of causation 

is sufficient at this stage of the proceedings: the harm is 

easily traced because Elanco manufactures the only FDAapproved rbST supplement on the market. Finally, the 

modified injunction is sufficiently definite and adequately 

supported by the record and the judge’s findings. 

I. Background

On April 25, 2017, Arla rolled out a $30 million advertising campaign designed to expand its presence in the United 

States. Dubbed “Live UnprocessedTM,” the campaign centers

on “Americans’ increasingly voracious desire to know more 

about the products they’re eating and feeding their families.” The campaign spans all platforms: television commercials, YouTube advertisements, social-media outreach, instore advertising, and a website.

Two 30-second television commercials form the centerpiece of Arla’s campaign. One is specifically at issue here. 

The commercial opens with this caption: “Arla Cheese 

Asked Kids: What is r[b]ST?” As the audience watches a 

cartoon of a six-eyed monster and a fisherman, a seven-yearold girl named Leah narrates: “RbST has razor sharp horns. 

It’s so tall that it could eat clouds. You may want to pet it but 

the fur is electric.” The commercial then cuts to a scene of 

Leah enjoying a cheese sandwich, and the narrator’s voice

switches to that of an adult woman: “Actually, rbST is an 

artificial growth hormone given to some cows, but not the 

cows that make Arla cheese. No added hormones. No weird 

stuff. Arla, live unprocessed.” A small written disclaimer 

appears for a few seconds toward the end of the commercial: 

“Made with milk from cows not treated with r[b]ST. No 
4 No. 17-2252

significant difference has been shown between milk derived 

from r[b]ST-treated and non r[b]ST-treated cows.”

Other parts of the ad campaign reiterate the claim that 

Arla cheese contains “no weird stuff.” Arla defines “weird 

stuff” on its website:

No artificial additives. No ingredients that you 

can’t pronounce. No ingredients that sound 

confusing or in any way like a made-up word. 

No ingredients with names that sound like 

they may be aliens with nine arms, beasts with 

electric fur, gigantic robots[,] or bears in disguise. No artificial growth hormones like 

r[b]ST.* ... Nor anything else artificial[] because our cheese has always been made with 

simple ingredients and never anything weird.

The asterisk directs readers to another part of the website 

containing the same disclaimer that appears in small print in 

the television commercial. 

Elanco produces and sells the only FDA-approved rbST 

supplement under the brand name Posilac®. On May 19, 

2017, Elanco filed suit against Arla and simultaneously 

moved for a preliminary injunction. The suit alleges that 

Arla’s ad campaign makes false and misleading statements 

concerning the composition, health, and safety of dairy 

products made from milk from rbST-treated cows. The 

complaint asserts claims for violation of the Lanham Act, 

15 U.S.C. § 1125(a), and the Wisconsin Deceptive Trade 

Practices Act, WIS. STAT. § 100.20(1).

As factual support for a preliminary injunction, Elanco 

submitted copies of the advertisements themselves, scientific 
No. 17-2252 5

studies and expert testimony about the safety of rbST, the 

FDA’s regulatory guidance regarding rbST-related advertisements, and confidential information that a major cheese 

producer chose to terminate its use of rbST partially in 

response to Arla’s advertisements.

The judge held an evidentiary hearing and thereafter 

granted Elanco’s motion for preliminary injunctive relief. 

After reviewing the scientific evidence submitted by the 

parties, the judge found that milk from rbST-treated cows is

equally safe and healthy for human consumption as other 

milk. He then concluded that Arla’s ads contain a “misleading message that cheese from cows treated with rbST is 

dangerous, unhealthy, and something that you should not 

feel good about feeding to your family.” The judge preliminarily enjoined Arla from disseminating the ads and any

others “substantially similar thereto.” The order also prohibited Arla from making claims disparaging rbST or Posilac®. 

Arla sought interlocutory review as permitted under

28 U.S.C. § 1292(a)(1). In its opening brief, Arla identified 

two technical defects in the judge’s order: it impermissibly 

incorporated documents by reference, and it failed to specify 

which advertisements or specific promotional claims were 

enjoined. In response Elanco returned to the district court 

and asked the judge to cure the technical problems in a 

modified order. The judge did so, issuing a modified injunction pursuant to Rule 62(c) of the Federal Rules of Civil 

Procedure.

II. Discussion

To win a preliminary injunction, the moving party must 

establish that (1) without preliminary relief, it will suffer 
6 No. 17-2252

irreparable harm before final resolution of its claims; 

(2) legal remedies are inadequate; and (3) its claim has some 

likelihood of success on the merits. BBL, Inc. v. City of Angola, 

809 F.3d 317, 323–24 (7th Cir. 2015). If the moving party 

makes this showing, the court balances the harms to the 

moving party, other parties, and the public. Id.

For purposes of this appeal, Arla concedes that rbSTderived dairy products are of the same quality, nutrition, 

and safety as other dairy products.1 Arla instead focuses on 

whether Elanco produced sufficient evidence to establish a 

 1 Arla would have trouble contesting the point anyway. The FDA has 

twice confirmed the safety of rbST-derived dairy products. It initially 

approved Posilac® in 1993 after determining that rbST “is safe and 

effective for dairy cows, that milk from rbST-treated cows is safe for 

human consumption, and that production and use of the product do not 

have a significant impact on the environment.” Interim Guidance on the 

Voluntary Labeling of Milk and Milk Products from Cows that Have Not 

Been Treated with Recombinant Bovine Somatotropin, 59 Fed. Reg. 6279, 

6279–80 (Feb. 17, 1994). The FDA reexamined the possible health risks of 

rbST in 2016, confirming that rbST is “safe and effective for its intended 

uses and that there is no significant difference between milk from cows 

treated with [rbST] and untreated cows.” U.S. FOOD & DRUG ADMIN.,

U.S. DEP’T OF HEALTH & HUMAN SERVS., CITIZEN PETITION DENIAL 

RESPONSE FROM FDA CDER TO THE CANCER PREVENTION COALITION, ET 

AL., 16 (Mar. 21, 2016), https://www.regulations.gov/document?D=FDA2007-P-0119-0007. 

In 2014 a joint panel of the United Nations and World Health Organization also found “no evidence to suggest that the use of rbSTs would 

result in a higher risk to human health.” World Health Organization, 

Food and Agriculture Organization of the United Nations, Joint 

FAO/WHO Expert Committee on Food Additives, Evaluation of Certain 

Veterinary Drug Residues in Food, WHO TECHNICAL REPORT SERIES 988, 78 

(2014), http://apps.who.int/iris/bitstream/10665/127845/1/9789241209885_

eng.pdf?ua=1.
No. 17-2252 7

likelihood of success on the merits of its Lanham Act claim.

We review an order granting a preliminary injunction for 

abuse of discretion. Id. at 324. Arla also challenges the scope 

of the injunction, arguing that it is vague and overbroad and 

does not meet various formal requirements of Rule 65(d) of 

the Federal Rules of Civil Procedure. We review these questions of law de novo. Lineback v. Spurlino Materials, LLC, 

546 F.3d 491, 504 (7th Cir. 2008). 

A. Likelihood of Success on the Merits

To prevail on a deceptive-advertising claim under the 

Lanham Act, a plaintiff must establish that (1) the defendant 

made a material false statement of fact in a commercial 

advertisement; (2) the false statement actually deceived or 

had the tendency to deceive a substantial segment of its 

audience; and (3) the plaintiff has been or is likely to be 

injured as a result of the false statement.2 Hot Wax, Inc. v. 

Turtle Wax, Inc., 191 F.3d 813, 819 (7th Cir. 1999). We have 

recognized two types of actionable statements under the 

Lanham Act: those that are literally false and those that are 

literally true but misleading. Id. at 820. The evidence required to satisfy the first two elements of the claim varies 

according to the type of statement at issue. 

A literally false statement will necessarily deceive consumers, so extrinsic evidence of actual consumer confusion

is not required. Id. We have characterized statements in this 

category as “bald-faced, egregious, undeniable, [and] over 

the top.” Schering-Plough Healthcare Prods., Inc. v. Schwarz 

 

2 Elanco’s Lanham Act claim is the main event at this stage of the 

proceedings. The state-law claim is largely duplicative, so the judge 

didn’t need to say much about it and neither do we.
8 No. 17-2252

Pharma, Inc., 586 F.3d 500, 513 (7th Cir. 2009). The inquiry 

asks whether the defendant made an explicit representation 

of fact that on its face conflicts with reality. See BASF Corp. v. 

Old World Trading Co., 41 F.3d 1081, 1091 (7th Cir. 1994). For 

example, if Arla’s television commercial had said, “drinking 

milk from cows treated with rbST gravely endangers your 

health,” Elanco would need no additional evidence of 

consumer confusion to prevail on its claim. 

Arla’s ads make no explicit false claims about the composition of or dangers posed by milk from rbST-treated cows. 

Indeed, the explicit statements about rbST are factually 

accurate: RbST is an artificial growth hormone given to some 

cows, and Arla does not use milk from those cows. We 

therefore leave to one side Elanco’s contention that Arla’s ad 

campaign contains literally false statements.

For the other category of actionable statements—those 

that are literally true but misleading—the plaintiff ordinarily 

must produce evidence of actual consumer confusion in 

order to carry its burden to show that the challenged statement has “the tendency to deceive a substantial segment of 

its audience.” Hot Wax, 191 F.3d at 819–20. The parties agree 

that at trial this evidence typically comes in the form of 

consumer surveys. They dispute, however, whether Elanco 

was required to conduct consumer surveys or produce other 

hard evidence of actual consumer confusion in order to win 

a preliminary injunction. 

We’ve held that “such proofs are not required at the preliminary injunction stage.” Abbott Labs. v. Mead Johnson & Co., 

971 F.2d 6, 15 (7th Cir. 1992). It’s not feasible to require a 

Lanham Act plaintiff to conduct full-blown consumer surveys in the truncated timeframe between filing suit and 
No. 17-2252 9

seeking a preliminary injunction. Here the judge properly 

analyzed whether the evidence Elanco submitted at this 

stage—the ads themselves, the regulatory guidance, and the

evidence of decreased demand—established a likelihood of 

success on the merits. Consumer surveys were unnecessary.

The judge permissibly scrutinized the content of Arla’s 

ads to determine whether they convey a misleading message. Some of that content is mundane and noncontroversial—for example, the characterization of Arla cheese as a

food “[y]ou can feel good serving ... to the whole family.” 

But the ad campaign centers on disparaging dairy products 

made from milk supplied by rbST-treated cows. The ads 

draw a clear contrast between Arla cheese (high quality, 

nutritious) and cheese made from rbST-treated cows (impure, unwholesome). The use of monster imagery, “weird 

stuff” language, and child actors combine to colorfully 

communicate the message that responsible consumers 

should be concerned about rbST-derived dairy products. The 

judge reasonably concluded that these ads are likely to 

mislead consumers about the wholesomeness of products 

made from milk supplied by rbST-treated cows. 

Regulatory guidance supports the judge’s conclusion. 

The FDA has warned that ads concerning rbST may be 

misleading if not placed “in proper context.” Interim Guidance on the Voluntary Labeling of Milk and Milk Products 

from Cows that Have Not Been Treated with Recombinant 

Bovine Somatotropin, 59 Fed. Reg. 6279, 6280 (Feb. 17, 1994).

Specifically, when a food advertisement states that the 

product is made “from cows not treated with rbST,” the 

FDA recommends that the ad also include the following 

disclaimer: “No significant difference has been shown 
10 No. 17-2252

between milk derived from rbST-treated and non-rbSTtreated cows.” Id.

Arla’s ads do not provide this needed context. True, the 

FDA’s recommended disclaimer appears in the ad campaign, but only in tiny print in the television commercial and

in an obscure location on the webpage. Neither disclaimer

dispels the central message of these advertisements: that

cheese made from milk supplied by rbST-treated cows is 

unwholesome.

Elanco also introduced confidential evidence that a major 

cheese producer decided to cease using milk from rbSTtreated cows based in part on Arla’s ads. To be sure, this 

evidence of decreased demand does not reflect actual consumer confusion. But given the cheese producer’s economic 

incentive to accurately predict consumer demand, its concern about the ad campaign’s impact on consumers supports 

the judge’s conclusion that the ads convey a misleading 

message about rbST. Given Arla’s concession that rbSTderived dairy products are no different than other dairy 

products, all the available evidence at this stage—the ads 

themselves, the FDA’s regulatory guidance, and the evidence of decreased demand—points in the same direction:

Elanco has a reasonable likelihood of success on the merits

of its Lanham Act claim.3

 3 Elanco argues in the alternative that Arla’s ads are false by necessary 

implication. This Lanham Act doctrine allows a plaintiff to bypass 

presenting evidence of consumer confusion altogether “[i]f the words or 

images, considered in context, necessarily imply a false message.” Time 

Warner Cable, Inc. v. DIRECTV, Inc., 497 F.3d 144, 158 (2d Cir. 2007). At 

least five other circuits use this “misleading per se” doctrine for Lanham 

Act claims. See id.; Scotts Co. v. United Indus. Corp., 315 F.3d 264, 274 (4th 
No. 17-2252 11

Arla next attacks the sufficiency of the evidence on the 

element of causation—that is, whether Elanco established a 

likelihood of success that the ads actually drove away customers. Causation requires proof of an injury to a commercial interest in sales or business reputation proximately 

caused by the defendant’s misrepresentations. Lexmark Int’l, 

Inc. v. Static Control Components, Inc., 134 S. Ct. 1377, 1395 

(2014). 

As an initial matter, Arla contends that the judge improperly skipped the causation question in his preliminaryinjunction analysis. Not so. After concluding that Arla’s ads 

are misleading, the judge specifically addressed Elanco’s 

evidence that a major cheese producer stopped using milk 

from rbST-treated cows based in part on the ad campaign.

A more extended treatment of the causation question was

largely unnecessary given how easy it is to trace Elanco’s

harm. Elanco sells the only FDA-approved rbST supplement 

in the United States, so any false or misleading advertising

regarding rbST that decreases demand for the supplement 

will necessarily harm Elanco. And Elanco’s evidence of a 

large cheese producer’s response to Arla’s ad campaign is 

sufficient factual support for the judge’s decision to issue a 

preliminary injunction. Nothing more was needed at this 

stage.

 

Cir. 2002); Clorox Co. P.R. v. Proctor & Gamble Commercial Co., 228 F.3d 24, 

34–35 (1st Cir. 2000); Southland Sod Farms v. Stover Seed Co., 108 F.3d 1134, 

1139 (9th Cir. 1997); Castrol Inc. v. Pennzoil Co., 987 F.2d 939, 946–47 (3d 

Cir. 1993). Because we agree with the judge that Elanco presented 

sufficient evidence of consumer confusion at this stage of the proceedings, we do not need to consider the alternative theory that the ads are 

false by necessary implication.
12 No. 17-2252

B. Challenges to the Form of the Injunction

As we’ve noted, in its opening brief, Arla raised several 

objections to the form of the original injunction. At Elanco’s 

request, the judge issued a modified injunction responding 

to these objections. That’s a permissible procedure. The civil

rules allow the district court to modify an injunction to 

maintain the status quo pending appeal. FED. R. CIV. P. 62(c). 

More to the point, the court is authorized to “aid[] in the 

appeal” by resolving technical objections or clarifying 

imprecise wording. See Dixon v. Edwards, 290 F.3d 699, 709 

n.14 (4th Cir. 2002). The judge did just that when he issued 

the modified injunction.

Arla continues to press some of its objections to the form

of the injunction. Most prominently, it contends that the 

injunction is vague and overbroad, so we’ll start there.

Rule 65 requires that every injunction “(A) state the reasons 

why it issued; (B) state its terms specifically; and (C) describe 

in reasonable detail—and not by referring to the complaint 

or other document—the act or acts restrained or required.” 

FED. R. CIV. P. 65(d).

The specificity requirements in the rule “spare[] courts 

and litigants from struggling over an injunction’s scope and 

meaning by informing those who are enjoined of the specific 

conduct regulated by the injunction and subject to contempt.” Patriot Homes, Inc. v. Forest River Hous., Inc., 512 F.3d 

412, 415 (7th Cir. 2008) (internal quotation marks omitted).

Whether a particular injunction is overbroad or vague is 

necessarily a highly fact-bound inquiry. “[An] injunction 

must ... be broad enough to be effective, and the appropriate 

scope of the injunction is left to the district court’s sound 
No. 17-2252 13

discretion.” Russian Media Grp., LLC v. Cable Am., Inc., 

598 F.3d 302, 307 (7th Cir. 2010).

Section 1 of the modified injunction prohibits Arla from 

disseminating the advertisement attached as Exhibit 1 to the 

order (we’ve described it above) and “any other advertisement substantially similar thereto” that “claims, either 

directly or by implication,” that rbST or Posilac® is “a 

massive beast, animal, or monster” with “razor sharp 

horns,” or “is so tall it could eat clouds,” or has “electric 

fur,” or “electrocutes or harms people.” This section of the 

injunction also prohibits Arla from disseminating any advertisement that claims or implies that rbST or Posilac® is 

anything other than an artificial hormone that prolongs the 

lactation of dairy cows.

Arla insists that the “substantially similar” language is

vague and overbroad. We disagree. The Lanham Act’s 

prohibition on implied falsehoods makes the use of somewhat inexact language unavoidable. See Scandia Down Corp. 

v. Euroquilt, Inc., 772 F.2d 1423, 1432 (7th Cir. 1985) (“When 

the difficulty stems from the inability of words to describe 

the variousness of experience, the court may prefer brief 

imprecise standards to prolix imprecise standards.”). Read 

as a whole, the modified injunction essentially prohibits Arla 

from portraying rbST as something it’s not. That’s sufficiently definite, especially when considered in the context of the 

rest of the order. See S.C. Johnson & Son, Inc. v. Clorox Co., 

241 F.3d 232, 238 (2d Cir. 2001) (finding a bar on “false or 

misleading descriptions” sufficiently specific when read in 

the context of the district court’s orders). 

Arla also objects to section 2(e) of the modified injunction, which prohibits any advertisement that claims, “either 
14 No. 17-2252

directly or by implication,” that “consumers should not feel 

‘good about eating’ or ‘serving to [their] friends and family’

dairy products made from milk of cows supplemented with 

rbST or Posilac®.” Arla objects that this part of the injunction 

forecloses any positive statement that its own products are 

“something you should feel good about eating.” That fear is 

unfounded. The prohibited negative inference can arise only 

if an Arla advertisement specifically mentions rbST or 

Posilac® in a disparaging way. Nothing in the injunction 

prohibits Arla from claiming that consumers can feel good 

about eating its own products. 

Finally, Arla argues that the modified injunction lacks 

adequate factual findings. Two rules govern here.

Rule 52(a)(2) of the Federal Rules of Civil Procedure requires 

that the court “state the findings and conclusions that support its action.” Rule 65(d)(1) requires that every injunction 

“state the reasons why it was issued.” A court “need only 

make brief, definite, [and] pertinent findings” to support its 

order. FED. R. CIV. P. 52 advisory committee’s note to 1946 

amendment. 

Arla first complains that section 2(a) of the injunction

broadly prohibits any statements claiming that rbST is 

“dangerous or unsafe,” but the judge’s factual finding in 

support of this prohibition says only that rbST-derived dairy 

products are not dangerous or unsafe for human consumption.

This is hair-splitting. Rule 52(a)(2) does not require “overelaboration of detail” or “particularization of facts.” Id. This 

case concerns Arla’s misleading advertising claims about the 

safety of rbST-derived dairy products for human consumption; it has nothing to do with other uses of rbST-derived 

dairy products. There is no ambiguity here.
No. 17-2252 15

Second, Arla contends that the judge’s factual findings 

do not adequately support Section 2(e) of the injunction,

which again prohibits any direct or implied claim that 

consumers should not feel “good about eating” cheese made 

from milk supplied by rbST-treated cows. To the contrary, 

the order traces the scientific evidence regarding rbST before 

concluding that milk from rbST-treated cows is just as safe 

and healthy as other milk.

In sum, we find no abuse of discretion, no substantive 

legal error, and no defect in the form or content of the injunction. The judge’s order therefore is

AFFIRMED.
16 No. 17-2252

ROVNER, Circuit Judge, concurring in part and concurring 

in the judgment. I join all but one discrete portion of Judge 

Sykes’ well-reasoned opinion. For purposes of this interlocutory appeal, Arla has not challenged the district court’s finding that its advertisements are likely to mislead consumers. 

Apart from arguing (erroneously, I agree) that Elanco was 

required to submit proof of actual consumer confusion at 

this stage of the proceedings, Arla has not quarreled with the 

district court’s preliminary analysis of the content of the ads 

and the message they convey to consumers. See Arla Reply 

Br. 10. Consequently, there is no need for us to address that 

aspect of Elanco’s Lanham Act claim at this time.