In the last few months, a handful of class actions have been filed challenging label claims regarding the treatment of the animals providing the food item in question. This appears to be a new food litigation trend, as plaintiffs’ attorneys invoke the purchasing public’s apparent concern for “clean”, “pure”, “healthy”, and “organic” food items.

“We Love Our Hens”

In the first of these actions, on March 6, 2019, plaintiffs filed a false advertising class action against Pete and Gerry’s Organics, LLC and Nellie’s Free Range Eggs. Plaintiffs allege that the defendants’ advertisements and product labels falsely represented that the eggs were sourced from humanely-treated hens. The product labels depicted open grass fields, a little girl holding a hen, and phrases including “they roam where they please.” A website link further depicted hens in large grass fields and distinguished the defendants’ farms from typical hen farms. Plaintiffs assert that contrary to the label claims, defendants “cram[] and stuff[] hens … into sheds up to 20,000 at a time.” The complaint includes photos purportedly taken at the farm of these conditions.

Plaintiffs seek to certify a nationwide class action and originally alleged causes of action under New York law in addition to common law fraud and breach of express warranty. On May 7, 2019, plaintiffs filed an amended complaint, which introduced additional named plaintiffs and causes of action under California, Maryland, and North Carolina law.

At this time, a motion to dismiss is not due to be filed until September 16, 2019.

“Fairlife” Dairy

Two separate class actions are now proceeding against Fairlife, LLC. The first was filed against Fairlife alone on June 12, 2019 in the northern district of Illinois. The second was filed on June 13, 2019 in the northern district of Georgia, and that action added Coca-Cola as a defendant. The complaints allege that the companies committed fraud and misrepresentation by advertising that the dairy products were sourced from humanely treated cows. The dairy products were heavily advertised under labels describing the “extraordinary care and comfort” provided to the cows. The class actions were filed after video from an undercover investigation of the dairy farm revealed widespread animal cruelty. The two actions collectively seek certification of nationwide classes and bring claims under Illinois, Florida, and Ohio law.

The complaints apparently will not be answered or responded to until 45 days after a decision by the Judicial Panel on Multidistrict Litigation is reached re consolidation of these proceedings.

“Raising Healthy Chickens”

Building on the theme, on July 10, 2019, Food & Water Watch and Organic Consumers Association sued Tyson Foods both for its treatment of its chickens and for Tyson’s alleged polluting practices. Plaintiffs, two non-profits dedicated to consumer protection and environmental oversight, have alleged that Tyson’s marketing and advertisement of “environmental stewardship,” “sustainability,” “excellence in animal welfare,” and “humane treatment of animals” misled consumers into purchasing Tyson’s products. Plaintiffs rely both on label claims and on representations made on Tyson’s website and social media (Tyson’s YouTube video, “Raising Healthy Chickens” has allegedly been viewed over 4 million times). Plaintiffs assert that independent investigations prove the alleged environmental violations and animal cruelty. Plaintiffs filed suit for violation of the District of Columbia Consumer Protection Procedures Act.

Of the three, the Tyson case is unique in its attack on the environmental label claims. If this case gets any traction, this could be a new area of attack by plaintiffs.

Without the benefit of any rulings on motions to dismiss, it is hard to predict whether courts will permit these claims to move past their pleadings. If they do, companies should anticipate more actions like this.

While the specific claims made in these false labeling/advertising actions (animal treatment) are new and perhaps unexpected, the claims are consistent with the overall trend of attacking representations made on labels and in advertising. Seen from this perspective, both outside counsel and in house counsel can share their awareness of these new actions. To the extent that a company hears about possible issues with the supply chain, the company should be proactive to get out in front of issues.