Farmed salmon: under the pink

Gallego v. Wal-Mart Stores, Inc., 707 N.W.2d 539 (Wisc. Ct. App. 2005)

Gallego filed a class action complaint against Wal-Mart for misrepresenting the origin of salmon and failing to disclose that the salmon was artificially colored. The trial court dismissed the complaint. The court of appeals affirmed in part and reversed in part, allowing one of his claims to proceed.

Gallego alleged that he bought artificially colored salmon from a Wal-Mart because he believed, based on the color, that it was “naturally raised or wild” rather than farm-raised; farm-raised salmon allegedly has “gray, unappealing flesh.” (Farmed salmon don’t eat the shrimp and krill that produce the red color of wild salmon, so salmon farmers add the color.) Gallego alleged that this was a misrepresentation, since consumers consider color to be a sign of wildness and think that wild salmon is tastier and more nutritious. Wal-Mart did not disclose the presence of the dye at the point of sale or on the packaging. Gallego sought damages for false advertising and unfair trade practices.

The court of appeals reasoned that Wisconsin law has a specific statutory provision prohibiting false advertising with regard to food. Unlike the general false advertising statute, which covers “merchandise” and other things that clearly aren’t food, the food law does not provide for a private right of action. Because of this more specific provision, which indicated that food is not merchandise, Gallego could not assert a private claim based on the general law.

He could, however, state a claim for unfair trade practices under a separate section of the law. Wisconsin regulations require food sold or distributed for sale in-state to be labeled in compliance with FDA rules, and the law provides a private cause of action for violation of state regulations. Wal-Mart did not dispute that FDA rules require disclosure of artificial coloring in salmon; instead, it argued that, for technical reasons, the relevant regulation didn’t trigger a private right of action, but the court disagreed.

More on the issue of dyed farmed fish, including other lawsuits: here here, and here, the last two of which include the marvelous fact that farmers can use a device called the Salmofan® to choose the color of the dye.