“free-run” chicken was plausibly misleading, but “wild-caught fish” claims needed more

Sultanis v. Champion Petfoods USA Inc., 2021 WL 3373934, No.
21-cv-00162-EMC (N.D. Cal. Aug. 3, 2021)

Sultanis alleged that petfood sold as being made with
“free-run” poultry and “wild-caught” fish was falsely advertised. (Champion’s
website also allegedly described its chicken supplier as “Todd of Clark Farms
in Lexington, Kentucky,” even though the person depicted alongside that
statement was in fact Greg Hefton of Tyson Foods.) She alleged that reasonable
consumers expected the poultry products were made with chickens “raised in
better, more humane conditions than typical chickens grown for meat,” and that
“have access to the outdoors.” She further alleged that “[to] reasonable
consumers…‘free-run’ is synonymous with ‘free range.’ ” For example, an
Amazon review said that “[f]ree range chicken is the meat in [the Products].”
But in fact, she alleged, the products are made from “factory-farmed birds
raised under standard industrial conditions— confined in crowded barns without
outdoor access.”

Similarly, marketing for fish products allegedly depicted a
fisherman next to what looks like a fresh body of water with the caption
“trusted supplier of fresh wild-caught fish,” and the website promised that
“[Champion’s] saltwater fish are sustainable and wild-caught from New England’s
cold and fertile waters, and [their] freshwater fish from American waters.”
However, the products are allegedly actually made with “rainbow trout from
industrial fish farms” in Idaho and “do not use wild-caught fish.” Animal
Equality allegedly commissioned laboratory tests that revealed the fish products
tested positive for ethoxyquin, a chemical that is only found in farmed fish,
not wild-caught fish.

admittedly wrong “wild-caught rainbow trout” description online

“wild=caught fish” description

The court dismissed claims to represent a multi-state class
under Rule 23 because Champion identified “substantial variations in the
consumer protection laws of the [13] states at issue,” including whether
notice, intent, reliance, or causation are required, as well as whether a
three-, four-, five-, or six-year statute of limitations applied.

California statutory claims: The term “free-run,” on its own,
could reasonably be read to imply that the chickens used to make the products
can freely run outside, especially because the label also depicts chicken
running freely on a spacious, grassy, and outdoor field without any disclaimer
that those are not the chickens in the products.

Champion argued that its statements were true because
“Canadian trade organizations” define it as chickens that are “free to run
throughout the barn in which they were raised.” Even if the court were to take
judicial notice of the Canadian definition, “it is highly implausible that Ms.
Sultanis was aware of this Canadian definition given that she lives in the
United States,” and it certainly wasn’t dispositive of what reasonable US
consumers would think.

Wild-caught fish: Champion argued that “brimming with
wild-caught fish” wasn’t false or misleading because the fish products
contained wild-caught catfish and white perch, even though they also contained
farmed rainbow trout. Its photos of fishermen in fresh-water lakes were photos
of the Kentucky fishermen who supply Champion with wild-caught catfish and
white perch.  None of the products
claimed that “all” or “100%” of the fish was wild caught, and other parts of
the packaging tout rainbow trout from Idaho and wild-caught catfish and white
perch from Kentucky.

But “whether a reasonable consumer read the inconspicuous
disclaimers that explain the ingredients include wild-caught and farmed fish
is, at the very least, a question of fact.” And, even if a consumer did, it’s
not clear that would disabuse her of misconceptions; they didn’t specify
percentages or explicitly say the Idaho trout was farmed. Nor was the absence
of “all” or “100%” dispositive, especially with the phrase “brimming with
wild-caught fish.”  And Champion acknowledged
that it at least once “inadvertently” claimed to make the product with
“wild-caught rainbow trout.”

For poultry, Sultanis also alleged both that she relied on
the representations and that reasonable consumers would attach importance to
them, citing studies showing that, for example, “84% of food shoppers say it is
‘important’ or ‘very important’ to provide better living conditions for
animals”; “74% stated that they were willing to pay more for humanely raised
meat products”  three-quarters of respondents
“said they were concerned about how chickens are raised for meat”; and even
studies showing that consumer concerns with how farm animals—particularly
chickens—are raised are “increasingly carrying over to pet foods.”

However, the fish complaint didn’t plead reliance with
sufficient particularity. Sultanis didn’t see the erroneous “wild-caught
rainbow trout” statements. And the statements she did see “to some extent
explain that the Products are made with rainbow trout and wild-caught blue
catfish/white perch.” She didn’t explain what part of the labels she saw and
relied on.

Champion’s disclosure that there were three fish species involved

“rainbow trout from Idaho plus wild-caught blue catfish and whole perch”–better, but not great

from Blogger https://ift.tt/2WaaMLr

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