Is Humane Washing of Meat and Poultry False Advertising?

What is Humane Washing?

Humane-washing is the practice of making false or misleading claims about the treatment of farmed animals. Claims may include the conditions in which animals are born, raised, or killed. Such false or misleading claims convey a false impression through advertising, packaging, and brand-images.

Humane-washing conceals many ugly realities about how animals are often treated in meat production.

The companies operating factory farms and marketing their products know that people will pay a premium price for products derived from animals perceived as being treated better.

Some examples of humane-washing may include the following claims on labels or in other advertising media such as websites:

• "Humanely raised"
• "Humanely treated"
• "Raised humanely"
• "Ethically raised"
• "Raised ethically"
• "Ethical"
• "Responsibly raised"
• "Responsibly sourced"
• "Thoughtfully raised"
• "Stress-free"
• "Free-range"
• "Pasture-raised"
• "Traceable"
• Pictures of animals or cartoons of animals (often with children) on bucolic fields and green pastures next to barns.

Humane-washing seeks to influence consumers’ perceptions about how animals are raised and slaughtered. It attempts to divert, distract, and detach consumers from the realities of modern-day meat agriculture and farming.

Humane-washing is often purposefully vague and meant to have the consumer make inferences. Such vagueness is often purposeful so the meat seller can claim “puffery,” which means exaggerations or aspirations. A valid example of puffery would be, “the best product ever.”

Humane-washed claims are often accompanied by certifications that purport to substantiate, standardize—and therefore measure—the "humaneness" of the treatment given to farmed animals in life and in death.

Humane-washing is similar to “green-washing,” which creates the false impression that a company’s products are more environmentally sound than they are. Green-washing often intersects with humane-washing with claims on packages that may reflect the following:

• "Sustainable"
• "Agriculturally sustainable"
• "Sustainably raised"
• "Sustainably farmed"
• "Thoughtfully raised"
• "Family farmed"
• "Environmentally friendly"
• "Natural"
• "Local"
• "Locally sourced"

Most or all of the above humane-washed words and phrases are not defined by the USDA so companies may contrive their own definitions.

Not a single federal law protects farmed animals during their lives on factory farms.

Most state anti-cruelty laws exempt “standard” agricultural practices under “common farming exemptions.”

Companies that produce meat (i.e. turkey, beef, pork)—not eggs or dairy —must substantiate “special claims” such as “humanely raised” to the Food Safety and Inspection Service (FSIS). They submit an application tending basic proof. 

Humane-washing is on the rise. According to SPINS, the USDA reports that in 2019, it received over 10,000 applications for animal-raising claims.

Humane-washing is enabled through weak or non-existent regulatory enforcement. The USDA and FDA oversee different parts of the food industry, and each agency processes different labels differently. For example, the USDA regulates beef, pork, chicken, turkey, other meats, and liquid eggs (liquid or powder form). Without a requisite pre-approval of labeling, the FDA regulates shell eggs, dairy, and fish. Producers of shell eggs, dairy, and fish are free to make whichever claims they want.

How Does Humane Washing Affect Consumers?

1. Humane-washing may alter and maintain false and misleading perceptions, beliefs, and schemas relating to the real treatment of animals in animal production.
2. Humane-washing may reduce the transparency of the real treatment of animals during the animal-production process.
3. According to Melany Joy, PhD., humane-washing causes “psychic numbing,” which disconnects consumers from the realities of what takes place on farms and in slaughterhouses.
4. Humane-washed statements are often repeated so often that they cause an illusory truth effect (believe a falsity due to frequent exposure).

How Can Consumers Fight Humane-Washing?

1. Stop eating, or eat less of, animal products. Purchasing them reinforces demand. Although this option may be undesired or inconvenient, it's true and direct.
2. Vote on state laws that ban bad practices such as intensive confinement (i.e. pig gestation crates and battery cages for hens).
3. Pressure food companies to adopt better standards.

Legal Remedies

Consumers or organizations challenging a company’s humane-washing can

1. File a lawsuit in court;
2. File a complaint with the Federal Trade Commission (FTC); or
3. File a complaint with the National Advertising Division (NAD).

In 2019, the NAD ruled against Hatfield Quality Meats for improperly using the claim that its pigs were “Ethically Raised by Family Farmers Committed to a Higher Standard of Care, Governed by Third Party Animal Welfare Audits.” NAD found that Hatfield’s standards were “not sufficient to substantiate the claim,” and recommended Hatfield remove those ethics claim from its labels.

While we are on the topic of meat-agriculture advertising, let's take a look at some common animal-raising claims. The below claims are not necessarily humane-washing, and many of them are actually defined by the USDA or the FDA.

Is Humane-Washing Considered False Advertising?

You could argue that humane-washing represents false advertising if you were misled in a "material respect" under NYGBL § 350-a. In Animal Legal Defense Fund v. HVFG, LLC (2013), the district court found that “a slogan indicating a product is ‘humane’ might therefore be subject to a false advertising claim” after considering and analogizing federal statutes concerning the “humane” slaughter of livestock. Although those statutes were not directly applicable, the court held “their guidance indicates: (i) that in some contexts, including the treatment of food animals, Congress has found that ‘humane’ is susceptible of definition; and (ii) that a possible legal definition of ‘humane’ might reference treatment that does not cause undue pain to an animal.” This case involved a Lanham Act claim by a vegan food producer against a real foie gras producer. Foie gras is a pate produced by the livers of forcefully fattened ducks. At issue was the defendant's use of the slogan "the humane choice," which allegedly cut into the plaintiff's sales. 

On March 2, 2022, a federal judge cited the above case in Usler v. Vital Farms when it permitted to move forward a false-advertising lawsuit against Vital Farms for its use of "pasture-raised" and "ethical" claims. In Ulser, the ad claims at issue were broad advertising campaigns mostly related to eggs—two facts that remove a preemption defense. 

As to USDA-approved animal-product labels (beef, pork, chicken, turkey, powdered eggs), we find fascinating the caselaw governing federal preemption—a potentially strong argument by meat companies. Our full analysis of federal preemption can be found in Does Federal Law “Preempt” (Block) State Lawsuits for Humane-Washing?

Examples of Commonly Used Label Claims:

Grass-fed

Producers supply documentation to the USDA as to the animal’s diet. Grass, hay (dried grass), baleage, and legumes are acceptable. But certifications as to cows’ diets do not address welfare problems common in the dairy industry including dehorning, disbudding, branding, weaning time, or transport conditions.

Cage-free

This claim references only egg-laying hens, not broiler chickens raised for meat (although some broiler producers speciously use “cage-free” on broiler packages). Most cage-free eggs in the United States follow the United Egg Producers’ voluntary standards, which require each bird to be given 1 to 1.5 square feet of floor space, depending on the barn type, as well as environmental enrichments like perches and nests. But cage-free systems still involve bad welfare treatment such as poor lighting, no access to the outdoors, and beak “trimming” (a euphemism for slicing or burning off hens’ beaks). Like caged hens, cage-free hens are often transported long distances to slaughter plants in cramped trucks without food or water since birds are excluded from the 28-Hour Transport Law.

Free-range or free-roaming

The USDA defines free-range only with regard to poultry and eggs that carry an official USDA grade ("inspected by the USDA"). “Free-range” birds must be “allowed” outside at least 120 days of the year. Sadly, commercial chickens are slaughtered at approximately six weeks or 42 days, however. For USDA-graded “free-range” birds, space requirements and quality of outdoor space are undefined. If eggs are ungraded (not inspected by the USDA), producers need only demonstrate that animals were “allowed access to the outside” to use the free-range label.

Natural

Under the USDA, the term “natural” must refer to food that is minimally processed without artificial ingredients. Product labels must contain a statement explaining their meaning. The USDA also requires substantiation through supporting documents with an explanation in order to use "natural" on a label. The USDA does not conduct on-site inspections to verify this claim (unless the product also bears an official "USDA Organic" label).

Pasture-raised

No legal definition exists for “pasture-raised.” If an animal product is certified “organic,” there may be some legitimacy to this claim. But standing alone, a grower making up their own definition is free to define it how she wishes subject to potential substantiation requirements discussed above.

Organic (Animal Welfare and Dairy Livestock)

An “organic” claim actually has some reliable meaning as to how a product was made, what it contains, and how some of the animals were treated. Organic farms are supposed to grow foods without using man-made chemicals (like pesticides or herbicides) which can harm the environment and wildlife. In ecological terms, organic is a labeling term found on products that have been produced using "cultural, biological, and mechanical practices that support the cycling of on-farm resources, promote ecological balance, and conserve biodiversity."

The National Organic Program – part of USDA’s Agricultural Marketing Service – enforces the organic regulations, ensuring the integrity of the USDA Organic Seal.

In order to make an organic claim or use the USDA Organic Seal, the final product must follow strict production, handling and labeling standards and go through the organic certification process.[1]

Under these organic standards, dairy animals need to be managed organically for at least 12 months in order for milk or dairy products to be sold, labeled, or represented as organic. Also, ruminants, such as cows, must be out on pasture for the entire grazing season, but not for less than 120 days. These animals must also receive at least 30 percent of their feed, or dry matter intake, from pasture.

The ability to move about is an animal-welfare issue. Under USDA Organic Livestock Requirements, organic producers must allow animals to graze outside for at least 120 days a year on pasture that meets USDA requirements. The living conditions for animals must “accommodate the health and natural behavior of animals” and include shade, shelter, an exercise area, fresh air, clean drinking water, direct sunlight, clean and dry bedding, and a suitable temperature." Condition guidelines must also allow for “freedom of movement and reduction of stress.” There are actual on-site inspections to enforce this.

At some large-scale organic poultry and egg farms, “outdoor access” may mean “tiny screen-in concrete porches for thousands of chickens.

Structural welfare defects of such farming operations, such as forcible insemination, transport conditions, and separation of mothers and babies, are not addressed by an “organic” label. The organic scheme actually encourages mutilations, such as clipping pigs’ teeth or slicing off hens’ beaks “if needed to promote animal’s welfare” whatever that means. Furthermore, calves can be confined up to six months of age according to USDA regulations.

The Trump Administration withdrew regulations titled the “Organic Livestock and Poultry Practices Rule” also known as the “The Animal Welfare Rule” which would have required better welfare for organic livestock. Even the USDA has conceded that “a lack of clarity in organic livestock and poultry standards has led to inconsistent practices among organic producers.”

More Links About Humane-Washing & The Law

• 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. 

Contact us right away if you feel deceived by any advertising claim that claims "humane," "humanely raised," "ethically raised," or the like. 

[1] https://www.usda.gov/media/blog/2016/07/22/understanding-usda-organic-label

[2] Fatema Merchant, Got Organic Milk? "Pasture"-Ize It!: An Analysis of the Usda's Pasture Regulations for Organic Dairy Animals, 14 Animal L 237, 252 (2008).

[3] 7 U.S.C. § 6509(c)(1)-(2).

[4] Id. at § 6509(c)(3).

[5] Id. at § 6509(d)(1)(A), (C). In addition, poultry and dairy livestock are subject to “unique, additional requirements” relating to organic eggs and dairy products. Id. at § 6509(e). The “additional requirement” in the dairy livestock provision requires that dairy products labeled as organic must “be raised and handled in accordance with this title [organic certification] for not less than the 12-month period immediately prior to the sale of such [dairy product].” Id. at § 6509(e)(2).

[6] Id. at § 6509(d)(2).

[7] 7 C.F.R. § 205.239(a).

[8] Id. at § 205.239(a)(1).

[9] Id. at § 205.238(a)(4).

[10] Id. at § 205.239(a).

[11] Unfortunately, the NOP regulations do not discuss the importance of grass for nutrition. However, the rules do stipulate that cow feed should include forage and pasture. 7 C.F.R § 205.237(a). The Center for Food Safety encouraged the USDA to adopt a dry matter intake recommendation based on “dairy business definitions used by Cornell University and the University of Wisconsin, which define grazing farms as those which provide at least 30 to 40 percent of dry matter from foraging pasture during the grazing season.” Ctr. for Food Safety, Comments on National Organic Program's ANPRM--Access to Pasture (Livestock) 3, (June 12, 2006) (available at http:// www.centerforfoodsafety.org/pubs/Organic_Comments_PastureANPRM6-12-06.pdf).

[12] See 7 C.F.R. § 205.239(a)(1)-(4) (requiring farmers to provide access to pasture, access to the outdoors, as well as appropriate exercise conditions, and conditions that limit physical stress on the animals).

[13] See Melissa Allison, Organic-milk Fight Takes Aim at Grazing time, Seattle Times (June 6, 2006) (available at http:// seattletimes.nwsource.com/html/businesstechnology/2003042016_dairy06.html) (describing how one farmer notes that “grazing works well for us in Southwest Washington,” but is “a little reluctant as a farmer to judge different areas of the country”).

[14] 7 C.F.R. § 205.239(b)(2). (“(2) The animal's stage of life: Except, that lactation is not a stage of life that would exempt ruminants from any of the mandates set forth in this regulation”)

[15] Kastel, supra n. 12, at 19 (claiming that large dairy operators have made statements akin to “all of our animals have access to pasture during some of their lives, or during some of the year, but due to ‘stage of production’ we do not pasture our lactating animals”).

[16] Envtl. Protection Agency, Lifecycle Production Phases, http:// www.epa.gov/oecaagct/ag101/dairyphases.html (accessed Apr. 13, 2008).

[17] 7 C.F.R. § 205.239(b)(2).