Food-Label & False Advertising Attorney

"Humanely Raised" Deception: What is it?

Consumers increasingly want their products created in the most animal-friendly and environmentally-friendly ways. Unethical meat sellers exploit these desires through false advertising known as humane-washing and green-washing. Unsupported animal-raising claims and phrases, such as the below, may amount to actionable false advertising if other legal conditions are met.

• "Humanely raised"
• "Humanely treated"
• "Raised humanely"
• "Ethically raised"
• "Raised ethically"
• "Ethical"
• "Responsibly raised"
• "Responsibly sourced"
• "Thoughtfully raised"
• "Stress-free"

For food labeling, the United States Department of Agriculture (USDA) does not define the above terms, leaving it to the sellers to create their own definitions. When challenged, some meat sellers claim that these advertising claims are "puffery" or "aspirational" to dodge responsibility for any deception that they may cause. Although sellers must generally "substantiate" these "special claims" with the government, any member of the public may make a FOIA request (Freedom of Information Act) to examine the sellers' support for these types of animal-raising claims. Advertising claims, such as "humanely raised," are loaded with implications that may require scientific support in order to make sense to reasonable consumers.

Which Agencies Regulate Animal Products, Fruits, and Vegetables?

The USDA regulates beef, pork, lamb, and poultry, including canned chicken, packaged and powdered eggs, raw produce, and raw vegetables. The FDA regulates seafood, including shellfish fish (except farmed catfish, which is inspected by the USDA), whole eggs, processed fruits, and raw vegetables. Packaged or prepared products containing over 50% meat or poultry are regulated by the USDA.

For an in-depth look at humane-washing, read, Is Humane-Washing of Meat and Poultry False Adversing?

"Humanely-Raised" Claims Influence Consumers' Decisions, Studies Show

Consumers who are sensitive to animal welfare and suffering are reportedly willing to pay more for "humanely-raised" or "ethically sourced" food products.

American consumers increasingly identify the welfare and protection of food animals as a major area of concern, both politically and as criteria for food selection.[1]

"Humanely-raised" animals in theory cost more to produce. Sellers may be financially incentivized to misrepresent the truth, in order to use such advertising to compete in the competitive marketplace. Misrepresenting the truth, however, interferes with the free market, and violates the law. False-advertising laws exist to ensure that consumers receive the information they need to make the purchasing choices they want. Where regulatory bodies fail (FTC, FDA, and USDA), consumers may engage the court system.

Consumers Can Fight Back Under State False-Advertising Statutes

False-advertising law is one way that consumers can make their votes count. Consumers who rely on humane-washing claims to influence a purchase may be entitled to take action, and receive up to $10,000.00 under NYGBL § 350, assuming other conditions are met. State courts implemented false-advertising statutes, referred to as "little FTC" acts, available for consumers to sue meat and food sellers for false advertising. In New York, we have General Business Law § 350, coupled with General Business Law § 349, which are closely examined in The Ultimate Guide to False-Advertising Law in New York: 22 FAQs.

In a nutshell, in order for a private plaintiff to "state a claim" under GBL § 350 (false advertising), she must allege that a defendant has engaged in

1. consumer-oriented conduct; that is
2. materially misleading; and that
3. plaintiff suffered injury as a result of the allegedly deceptive act or practice.”

Both private plaintiffs and the Attorney General can bring a false-advertising lawsuit. As far as damages, prevailing private plaintiffs (consumers or competitors) are entitled to damages and/or injunctive relief in successful cases. The court, at its discretion, may also award reasonable attorneys' fees with treble damages (three times actual or compensatory damages). Treble damages require a willfulness to violate GBL § 350, and are limited to ten thousand dollars.

Businesses Can Sue Competitors for Injuries Caused by False Advertising

Businesses can sue competitors for commercial injuries caused by false advertising under the Lanham Act. 15 U.S.C. § 1125. This Act creates a federal cause of action for false advertising in interstate commerce with broad remedies ranging from injunctive relief and damages, to corrective advertising.

Businesses Suing Inhumane Meat Producers Under the Federal Lanham Act

In the area of humane-washing, the Lanham Act may provide good grounds for a "humane" food producer to sue a meat producer for misleadingly using the word "humane," as shown in Animal Legal Defense Fund et al v. HVFG, LLC. The plaintiff, Regal Vegan, produced a non-meat spread called faux gras to compete with fois gras, which is produced from the livers of forcefully fattened ducks or geese. This "delicacy" is typically made by force-feeding the water fowl through a “gavage” (a long feeding tube) causing their livers to become greatly enlarged. The defendant, HVFG, LLC, used the slogan "the humane choice" for this product based on its argument that the fowl were not caged and were given "extra care." The court found that Regal Vegan had standing to address injury in the market of "spreadable pates for consumers interested in animal welfare."

As we saw in Is Humane-Washing of Meat and Poultry False Adversing, the word "humane" is susceptible to definition, held the court in Animal Legal Defense Fund. The defendant could not argue that the word "humane" constitutes mere "puffery" (opinion). The court held that Congress' two other definitions of "humane" in other contexts carried a "theme of pain." Therefore, a claim that a product is “the humane choice” might constitute a statement that could be proved false or “reasonably interpreted as a statement of objective fact.”

Broader Remedies for Businesses Injured Under the Lanham Act

The federal Lanham Act may be attractive for businesses because of its broad remedies, which may include injunctions, corrective advertising, damages for lost profits or defendant’s profits, costs, and attorney’s fees.

Contact us right away for a free consultation due to any injury or deception caused by false advertising, especially in the area of humane-washing.