"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.