Monday, August 23, 2021

"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

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