Tyson & Others in Animal Treatment False Claims Class Actions
Over the past few months, a handful of class actions have been filed to challenge labeling claims regarding the treatment of animals providing the feed in question. This appears to be a new trend in food litigation, as lawyers for the plaintiffs cite the buying public’s apparent concern for “clean”, “pure”, “healthy” and “organic” food products.
“We love our chickens”
In the first of those actions, on March 6, 2019, the plaintiffs filed a class action lawsuit against false advertising against Pete and Gerry’s Organics, LLC and Nellie’s Free Range Eggs. The plaintiffs allege that the advertisements and labels of the defendants’ products falsely indicated that the eggs were from humane treated hens. Product labels featured open fields of grass, a little girl holding a hen, and phrases such as “they roam wherever they want”. A link to a website further described hens in large fields of grass and distinguished the defendants’ farms from typical chicken farms. The plaintiffs claim that contrary to the label’s claims, the defendants are “heaping up and other things chickens… in sheds up to 20,000 at a time. The complaint includes photos allegedly taken on the farm of these conditions.
The plaintiffs seek to certify a nationwide class action lawsuit and originally alleged causes of action under New York law, in addition to common law fraud and express warranty breach. On May 7, 2019, the plaintiffs filed an amended complaint, which brought additional named plaintiffs and causes of action under the laws of California, Maryland and North Carolina.
For the moment, a motion to dismiss should not be filed before September 16, 2019.
Two separate class actions are currently pending against Fairlife, LLC. The first was filed against Fairlife alone on June 12, 2019 in the Northern District of Illinois. The second was filed on June 13, 2019 in the Northern District of Georgia, and this action added Coca-Cola as a defendant. The complaints allege that the companies committed fraud and misrepresentation by claiming that the dairy products came from cows treated humanely. Dairy products were heavily advertised with labels describing the “extraordinary care and comfort” provided to cows. The class actions were filed after a video of a secret dairy farm investigation revealed widespread animal cruelty. Both actions collectively seek certification of national classes and bring claims under the laws of Illinois, Florida and Ohio.
Apparently, complaints will not receive a response or response until 45 days after a decision of the Judicial Commission on Multidistrict Litigation has been issued regarding the consolidation of these procedures.
“Raising healthy chickens”
Building on the theme, on July 10, 2019, Food & Water Watch and the Organic Consumers Association sued Tyson Foods for both the treatment of its chickens and for Tyson’s alleged polluting practices. The plaintiffs, two non-profit organizations dedicated to consumer protection and environmental monitoring, alleged that Tyson’s marketing and advertising of “environmental stewardship,” “sustainability,” “excellence welfare policy ”and the“ humane treatment of animals ”have misled consumers into buying Tyson products. some products. The plaintiffs rely on both the label’s claims and representations made on Tyson’s website and social media (Tyson’s YouTube video, “Raising Healthy Chickens” has reportedly been viewed over 4 million times). The plaintiffs say independent investigations prove the allegations of environmental violations and animal cruelty. The plaintiffs filed a complaint for violating the District of Columbia’s Consumer Protection Procedures Act.
Of the three, the Tyson case is unique in its attack on environmental label claims. If this case gets traction, it could be a new area of attack by plaintiffs.
Without the benefit of any ruling on dismissal motions, it is difficult to predict whether the courts will allow these claims to go beyond their pleadings. If so, companies should anticipate more actions like this.
While the specific claims made in these false labeling / advertising actions (animal treatment) are new and perhaps unexpected, the claims are consistent with the general tendency to attack representations made on labels and in advertising. Seen in this light, both external lawyers and internal lawyers can share their knowledge of these new actions. Since a business hears about possible issues with the supply chain, it needs to be proactive in addressing the issues.
Copyright © 2021, Sheppard Mullin Richter & Hampton LLP.Revue nationale de droit, volume IX, number 231