“ethical” fur sourcing claims not puffery

Lee
v. Canada Goose US, Inc., 2021 WL 2665955, No. 20 Civ. 9809 (VM) (S.D.N.Y. Jun.
29, 2021)

Lee
sued Canada Goose alleging misrepresentations about the methods used to procure
coyote fur for certain Canada Goose jackets:

“The Canada Goose Fur Transparency StandardTM is our
commitment to support the ethical, responsible, and sustainable sourcing and
use of real fur”;

• “The first traceability program to cover the wild
habitat, it ensures that all fur sourced by Canada Goose is in accordance with
the Agreement of International Humane Trapping Standards (AIHTS) in Canada and
the Best Managed Practices (BMP) in the United States, and is fully traceable
throughout the supply chain”; and

• “The standard certifies that we never purchase fur from
fur farms, never use fur from endangered animals, and only purchase fur from
licensed North American trappers strictly regulated by state, provincial and
federal standards.”

Lee
alleged that these statements suggested that the fur-sourcing practices used by
Canada Goose trappers “prevent the infliction of extreme pain or distress on
animals trapped for its fur products” when they do not. In reality, according
to Lee, “Canada Goose’s suppliers use cruel methods that cause strangulation
and broken bones to coyotes and other animals who are inadvertently trapped and
discarded,” specifically leg traps and snares, in contravention of its “ethical”
and “sustainable” language. Even alternatives to traditional leg traps
allegedly cause “severe distress and injuries,” with long-term effects for
animals released after trapping. Likewise, studies on the use of snares and
leghold traps allegedly indicate that up to 67% of the animals caught in the
traps are not the intended targets.

As
to the AIHTS and BMP standards, Lee alleged that the claims were misleading
because “these standards themselves authorize inhumane trapping practices that
reasonable consumers would perceive as neglectful and unduly harmful.” AIHTS standards
allegedly tolerate traps in which up to 20% of animals tested demonstrate
physical and emotional suffering, while BMP accepts 30%. Neither bar leg traps
or snares, and while AIHTS standards require that any device used to kill
animals must render them “irreversibly unconscious within 300 seconds,” snares
do not consistently accomplish that, and the ones who don’t die immediately “suffer
painful injuries including dehydration or starvation, compounded by the fact
that in many cases snares may be left unchecked for lengthy periods of time.”

Likewise,
Canada Goose’s statements about licensure of its trappers and compliance with
governmental regulations were also allegedly misleading: Canada Goose states
that it “only purchase[s] fur from licensed North American trappers strictly
regulated by state, provincial and federal standards,” but many places have no
relevant licensing or regulation, and Canada Goose didn’t exclude fur from
those places. Anyway, licensing from the North American Fur Industry
Communications group is “simply a matter of taking a training course on
conservation and trapping systems, and then purchasing the license.”

The
court dismissed the claims with respect to some statements, but not with
respect to “ethical, responsible, and sustainable sourcing” which was plausibly
alleged to mislead a reasonable consumer. But statements about compliance with
AIHTS and BMP standards, and sourcing from licensed fur trappers regulated by
state, provincial, and federal standards, were “accurate and therefore unlikely
to mislead,” which is not really what “misleading” means.

It
was not enough to allege that the AIHTS and BMP standards were too low, or that
licensing for trappers was too minimal, without alleging that Canada Goose
didn’t comply with those standards or didn’t only work with licensed trappers.
Because accurate claims generally aren’t misleading, these weren’t. [This
result may be right, but the reasoning reads “misleading” out of the standard,
replacing it with “false.” Sigh.]

Nor
was it false to claim they worked with “North American trappers strictly
regulated by state, provincial and federal standards” when there were no US
federal standards for trapping—Canada is also a federal system and the word
could refer to federal laws in Canada.

However,
Canada Goose’s purported commitment to “ethical” fur sourcing could be
misleading because Canada Goose obtains fur from trappers who use allegedly
inhumane leghold traps and snares. And this was material because plaintiff
alleged that reasonable consumers consider “animal welfare” to be an important
factor in whether a product is “ethically produced,” and that
consumer-perception research indicates that terms such as “sustainably
produced” are perceived as signaling compliance with “higher animal welfare
standards.” These weren’t puffery: “the ethical, responsible, and sustainable
sourcing and use of real fur” was measurable and discernable, not “outrageous”
or “generalized.”

No
standing for injunctive relief, though.

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