"better lives for hens" was puffery, but hen living conditions claims weren't

Lugones v. Pete & Gerry’s Organic, LLC, No. 19 Civ. 2097 (KPF), 2020 WL 871521  (S.D.N.Y. Feb. 21, 2020

Plaintiffs alleged that they bought defendant’s eggs, branded as Nellie’s Free Range Eggs, based on false advertisements indicating that the hens were loved and are given ample access to open, green spaces in which they can peck, perch, and play. Instead, (i) defendant’s hens are allegedly kept in tightly constricted spaces, with no real access to the outdoors; they are crammed “into sheds up to 20,000 at a time ... prevent[ing] them from extending their wings, foraging or making their way to the outdoor space [Defendant] advertises so prominently”, and (ii) the hens are subject to numerous husbandry practices that plaintiffs oppose, such as beak-cutting and culling for slaughter when they’re calcium-depleted.

The containers used slogans like “we love our hens, you’ll love our eggs”; “we love our hens”; “better lives for hens mean better eggs for you!”; and “outdoor forage.” The container also claimed that “[m]ost hens don’t have it as good as Nellie’s,” because Nellie’s hens “can peck, perch, and play on plenty of green grass.” The containers all included imagery highlighting young children playing with hens in an open field.

Plaintiffs alleged they “would only consider purchasing Nellie’s eggs in the future if Defendant[ ] were to treat chickens in a manner consistent with [its] advertising.” The court held this conditional intent wasn’t enough to give them standing to pursue injunctive relief.

However, plaintiffs did state claims under GBL §§ 349 and 350, based only on statements and images they claimed to have viewed before purchase: the statements and images on the container, including this paragraph:

Most hens don’t have it as good as Nellie’s. 9 out of 10 hens in the U.S. are kept in tiny cages at giant egg factories housing millions of birds. Sadly, even “cage-free” is now being used to describe hens that are crowded into large, stacked cages on factory farms, who never see the sun. Nellie’s small family farms are all Certified Humane Free-Range. Our hens can peck, perch, and play on plenty of green grass.

Statements on the website, however, were non-actionable because plaintiffs didn’t allege that they viewed the website before purchasing and thus they couldn’t have relied on those statements.

Also, many of the challenged parts of the container were not actionable.  “We love our hens, you’ll love our eggs” and “better lives for hens mean better eggs for you” were “paradigmatic examples of puffery.” It was unreasonable to interpret such statements to mean that the hens were free “from chick culling, beak-cutting, calcium depletion[,] and sale to commercial slaughterhouses and live markets.”  But “[m]ost hens don’t have it as good as Nellie’s. ... Our hens can peck, perch, and play on plenty of green grass” was factual, reinforced by references to “OUTDOOR FORAGE” and images of hens frolicking in elysian pastures. There was enough specificity to go beyond puffery and into potential materiality. Defendants argued that reasonable consumers wouldn’t rely on these claims, but that wasn’t a good argument on a motion to dismiss: the court wasn’t willing to find as a matter of law that consumers wouldn’t look at these claims and the associated iamges “and not believe that Defendant’s hens have significant access to the outdoors.”

Fraud/fraudulent misrepresentation claims likewise survived. When it came to reasonable reliance, “Plaintiffs would have had no independent means of ascertaining the truth of Defendant’s misrepresentations — short of driving themselves to Defendant’s facilities and sleuthing about the grounds for the truth. Such an effort would go far beyond the ‘minimal diligence’” required.” But breach of express warranty claims failed.