Brooks Law Digest: Advertising

A putative consumer class action has been filed in the U.S. District Court for the Northern District of California alleging that Kellogg Sales Company’s advertisement of its MorningStar brand “Veggie” products (including “Veggie Burgers” and “Veggie Dogs”) violates numerous California consumer protection laws. Plaintiffs allege that the “Veggie” labeling is false or misleading because it suggests that vegetables are the primary ingredients in such products when they instead are predominantly comprised of grain and oil. Plaintiffs are seeking a recall of Kellogg’s MorningStar products labeled in this manner, a corrective advertising campaign, disgorgement, and restitution.

USDA’s Food Safety and Inspection Service has responded to Harvard Animal Law & Policy Program’s petition for FSIS to develop a labeling approach for “cell-based” meat and poultry products that respects First Amendment commercial speech protections by not requiring new standards of identity and not banning the use of common or usual meat or poultry terms or other product terms specified in current codified standards of identity. In its letter, FSIS “agrees that more information is necessary to develop new labeling requirements for these products,” stating that in response to the Harvard petition the agency filed an advance notice of proposed rulemaking (ANPR) on September 3, 2021, “to request comments pertaining to the labeling of meat and poultry products comprised of or containing cultured cells derived from animals subject to the Federal Meat Inspection Act or Poultry Products Inspection Act.” Conversely, FSIS has denied a February 9, 2018, petition by U.S. Cattlemen’s Association which urged the agency to exclude “cell-based” meat and plant-based meat substitutes from the definition of “beef” and “meat,” citing the FDA’s exclusive jurisdiction over plant-based products and the USDA’s September 3, 2021, ANPR regarding labeling of cultivated meat.

The District of Columbia Court of Appeals has issued a decision reversing a lower court’s ruling dismissing a lawsuit brought by the Richman Law Group, Animal Legal Defense Fund, and Public Justice alleging that the company’s “Natural Choice” advertising misleads consumers. The Court ruled that nonprofit organizations have standing to sue to enforce the D.C. Consumer Protection Procedures Act and that the lawsuit’s claims are not preempted by federal law.

The USDA’s Food Safety and Inspection Service has published an advanced notice of proposed rulemaking, soliciting comments to guide the agency’s future labeling requirements for cell-cultured animal products. The FSIS and FDA agreed in 2019 that both agencies will retain regulatory oversight of certain aspects of the production and distribution of products produced using animal cell culture technology, determining that FSIS will have authority over the labeling process. FSIS is accepting comments through November 2, 2021.

Texas House Bill 242 would amend the state Health and Safety Code to define terms such as meat, beef, pork, and poultry to specifically exclude any “cell-cultured, plant-based, or insect-based food product.” The bill would declare a plant-based meat analogue as misbranded if it does not prominently display a term such as “analogue,” “meatless,” or “plant-based” immediately before the name of the product and a cultivated meat product as misbranded if it does not prominently display the term “cell-cultured” or “lab-grown” immediately before the name of the product.

A federal judge has ruled that Canada Goose  must face claims from a proposed class of consumers that its advertised commitment to “ethical, responsible and sustainable sourcing” is misleading because the company actually obtains coyote fur from inhumane sources such as strangulation snares and leghold traps. The court did, however, dismiss the claim for injunctive relief stating the plaintiff was unlikely to purchase additional Canada Goose products after learning how the fur actually is sourced and therefore “lacks standing to seek injunctive relief because he does not allege any injury that is ‘actual and imminent, not conjectural or hypothetical.’”

A proposed class of seafood consumers has filed suit against Red Lobster alleging that the company’s marketing practices are deceptive. The complaint states that while the company claims its seafood is “sourced from the highest standards,” in reality its products come from “suppliers that use environmentally destructive practices that threaten endangered populations of North American right whales” and “industrial shrimp farms that do not employ the highest environmental or animal welfare standards.”

The Animal Legal Defense Fund has filed suit against the Food Safety Inspection Service of the United States Department of Agriculture alleging that the agency has a pattern and practice of unlawfully approving deceptive imagery and graphics on chicken and turkey labels under the Poultry Products Inspection Act and the Administrative Procedure Act.

The seafood company Mowi has agreed to pay over a million dollars to settle a proposed class action alleging that the company misled consumers into believing the animals used in its products were “sustainably sourced,” “all-natural,” and caught in Maine.

A Texas federal judge has denied Texas A&M’s motion to dismiss a lawsuit brought by PETA alleging the University’s refusal to display ads placed by the nonprofit depicting dogs used in a research lab amounts to a violation of its First Amendment rights.