Does "Humanely Raised" placed near "USDA Process Certified" imply that the USDA certified "Humanely Raised"?
Yes, plausibly so, held a federal judge in New Jersey in the class action, Hemy v. Perdue Farms, Inc. (2013). The court found it reasonable to connect the two label claims on a chicken product. The court denied Perdue's motion to dismiss. The two claims, taken together, were sufficient to state a claim for a breach of an express warranty. The high-burden fraud claim survived as well. The court permitted use of an internet survey to plausibly support the claim that consumers believed that Perdue was making promises as to its slaughtering process as well.
The class plaintiffs also produced alleged admissions by Perdue (letter, email, and checklist) that supported their argument that Perdue mirrors the inhumane practices of the National Chicken Council. If true, that practice would contradict the beliefs and reasonable interpretations of the plaintiffs as reasonable consumers. Worth noting here is that an advertisement may create an express warranty, which in this case was the warranty that the chickens used were "humanely raised" from birth through slaughter.
Did Congress intend to exclusively regulate animal-raising claims?
The question here is whether federal law "preempts" (blocks or prevents) state mislabeling or misbranding lawsuits based on alleged "pre-approval" of labels of meat and poultry. Generally, if federal law already regulates meat and poultry labeling under the FMIA and PPIA, and if Congress intended to exclusively regulate such labeling, then state plaintiffs may not take action that would add an additional or different burden not required under federal law. But state lawsuits that don't impose new labeling "requirements," but mirror what is already prohibited under federal law may be fair game.
What about circumstances that are not clear as to whether federal law exclusively occupies a particular area of meat or poultry labeling? For example, what if the FMIA or PPIA do not explicitly address label claims about on-farm animal husbandry? Both preemptive clauses appear "silent" on the issue of animal husbandry, and focus on activities related to "official establishments" (slaughterhouses). Plus, what about the fact that both preemptive clauses under the FMIA and PPIA endow states with broad concurrent jurisdiction to help enforce provisions of both federal statutes, including those related to misbranding?
Should the law immunize meat suppliers who make label claims that are actually false but deemed "not misleading" under the pre-approval process under USDA and FSIS standards?
What does the USDA regulate as compared to the FDA?
The USDA regulates beef, pork, lamb, and poultry, including canned chicken, packaged and powdered eggs, raw produce, and raw vegetables, Packaged or prepared products containing over 50% meat or poultry are also regulated by the USDA. The USDA generally "pre-approves" labels that contain these ingredients.
The FDA regulates seafood, including shellfish fish (except farmed catfish, which is inspected by the USDA), whole eggs, processed fruits, and raw vegetables. The FDA does not pre-approve labels that contain these ingredients. As you can imagine, preemption is more frequently applied to claims involving meat and poultry labeling.
Federal Preemption will take center stage in animal-welfare labeling litigation
Our next blog discusses the evolution of preemption doctrine in all labeling. At issue are states' rights to preserve its powers, and its citizens' powers, to also prosecute claims for misbranding and false advertising.
The Supreme Court of the United States is the highest court of the land, and will always be consulted first. Next are federal appellate courts. Then federal trial courts. State trial courts also contend with animal-based false advertising cases. After all, in large part of what we do is bring false-advertising lawsuits in New York State under New York state laws.
It's only when cases are either a) brought as class actions or b) otherwise qualify for federal jurisdiction, do they end up in federal court.
Related Links:
- For an expansive look into humane-washing, click Is Humane-Washing of Meat and Poultry False Advertising?
- Learn about the 4 purposes of advertising, along with numerous common myths in false adverting.
- For a comprehensive review of New York law, click The Ultimate Guide to False-Advertising Law in New York: 22 FAQs.
- Click here to learn more about humane-washing, green-washing, and nutri-washing.
- Were you Misled?: Complete that form for a free legal analysis to determine if you were deceived by humane-washing or green-washing.
- A library of links relating to nutrition, animal welfare, and advertising law.
To speak with Jesse Langel personally about these types of claims, contact him or complete this tailored questionnaire.