Friends
of the Earth v. Sanderson Farms, Inc., 992 F.3d 939 (9th Cir. 2021)
Although the animal/farm advocacy
organization plaintiffs won some early skirmishes, they faltered on lack of
organizational standing against a poultry producer to bring consumer protection
claims. The court of appeals affirmed their loss.
The
groups’ activities included informing consumers about the downsides of routine
antibiotic use and pressuring restaurants to stop sourcing meat from producers
that routinely use antibiotics. Sanderson continues to use and defend the use
of antibiotics, but advertised its chicken products as “100% Natural” and ran
advertisements stating that there were “[n]o antibiotics to worry about here.” The
groups sued under the UCL and FAL.”To establish organizational standing, the
Advocacy Groups needed to show that the challenged conduct frustrated their
organizational missions and that they diverted resources to combat that
conduct.” Only the latter was at issue. Diversion of resources has been found when
organizations “expended additional resources that they would not otherwise have
expended, and in ways that they would not have expended them.” By contrast,
merely continuing ongoing activities does not satisfy this requirement.
The
groups didn’t learn of Sanderson’s alleged misrepresentations until August 1,
2016, so resources expended before that date weren’t pertinent. Nor were
activities after suit was filed in June 2017, such as expending resources on
the litigation and litigation publicity. The district court correctly found
that the groups’ activities were “business as usual” during the period, not a
diversion of resources. They were already fighting routine antibiotic use in
animal agriculture. During the relevant period, they didn’t “publish action
alerts or other advice to their members targeting the advertising; did not
address Sanderson’s advertising in any campaign, press release, blog post, or
other communication; did not petition Sanderson; and did not protest
Sanderson’s advertising.” Internal
discussions about whether something should be done didn’t suffice.
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Rebecca Tushnet 