citing Green Guides, court finds "sustainable" fish claim plausibly misleading

Rawson v. ALDI, Inc., 2022 WL 1556395, No. 21-cv-2811 (N.D. Ill. May 17, 2022)

Rawson alleged that at least once a month for the last four years, she bought Atlantic Salmon products from ALDI with the label: “Simple. Sustainable. Seafood.”  

She alleged that, instead, “ALDI sources its salmon from large industrial fish farms that use environmentally destructive and unsustainable practices,” details of which I omit. She brought claims under New York General Business Law § 349 (deceptive acts), § 350 (false advertising), violation of 33 other state consumer protection statutes, breach of express warranty, and unjust enrichment.

ALDI argued that its label wasn’t misleading when read in context with the product’s “Best Aquaculture Practices” (BAP) certification label, conferred by an independent third-party nonprofit trade association, Global Seafood Alliance (GSA).

But that didn’t defeat plausible misleadingness, because “the labels are not next to one another; an unrelated white graphic separates the two,” so a reasonable consumer might very well fail to connect them. Additionally, “a reasonable consumer might not know what the BAP label means, much less know how it relates to ALDI’s claim of sustainability.” The BAP label didn’t serve to clarify “sustainable” or otherwise evidently connect to it. “To the contrary, the BAP label says nothing about sustainability.”

Nor was “sustainable” puffery (at the stage). “[A] reasonable inference can be made that ALDI’s label suggests, at a minimum, that its product is made in such a way that minimizes negative impact to the environment, which can be actionable as something beyond puffery,” a conclusion reinforced by the Green Guides, which found that “[u]nqualified general environmental benefit claims...likely convey that the product ... has specific and far-reaching environmental benefits and may convey that the item ... has no negative environmental impact.”

Rawson sufficiently alleged that she paid a premium for what she believed was a sustainably sourced product, and that generally consumers seek out and will pay more for “ecologically sustainable” products, citing consumer research to support this allegation.

Breach of express warranty claims also survived, though unjust enrichment was dismissed, and whether she could bring claims under the law of other states best awaited the class certification stage, though it would stay discovery under those claims until certification was clearer.

Injunctive relief claims also failed because Rawson wouldn’t be fooled again.