Lawsuits over food labeling on the rise due to loose U.S. regulations
Lawsuits over ‘misleading’ food labels surge as groups cite lax U.S. oversight
Shoppers drawn to sustainable, humanely raised meat and dairy products could be forgiven for thinking the nation’s big food companies have turned away from the industrial farming practices that have long dominated American agriculture.
Consider the package labels and marketing claims for some of the country’s best known brands: Cargill turkeys are sourced from “independent family farmers,” Sargento cheeses contain “no antibiotics” and Tyson uses “humane and environmentally responsible production” to raise its chickens while providing workers “a safe work environment.”
But some claims may not be what they seem, according to a flurry of litigation by advocacy groups seeking to combat what they describe as a surge in deceptive marketing by food giants. The misleading labels, the plaintiffs say, seek to profit off consumers’ growing interest in clean eating, animal welfare and environmentally friendly agriculture — but without making meaningful changes to their farming and production practices.
Class-action litigation against food and beverage companies hit a record high last year, with 220 lawsuits filed in 2020, up from 45 a decade ago, according to a tally by the law firm Perkins Coie.
The mounting wave of legal activism in part reflects the frustration of advocates who have made little headway in recent years convincing federal regulators to increase their oversight of the nation’s food supply — or even to provide definitions for words like “healthy” or “all natural.” Big Food, advocates say, has eagerly exploited the regulatory vacuum.
According to the lawsuits and complaints, Cargill turkeys are actually produced by contract farmers who have no say in the way the birds are raised — and who often become mired in debt complying with Cargill’s strict husbandry requirements.
Tyson’s “all natural” chickens, claims a lawsuit and a complaint filed with the Federal Trade Commission, are mass-produced in crowded sheds contaminated with antibiotic-resistant pathogens, and after slaughter, they are bathed in chemical disinfectants. The federal complaint also questioned Tyson’s “safe work environment” claims, noting that 39 Tyson processing plant employees have died of COVID19 and 12,500 others had become infected, four times more cases than its biggest competitors.
In a statement, Tyson said it complied with all labeling regulations and was transparent about environmental, animal welfare and workplace safety efforts.
Farmed versus wild salmon is another category with nebulous definitions that consumers find hard to parse.
And that antibiotic-free Sargento cheese? One of the two recently filed lawsuits against the company included lab tests that found trace amounts of antibiotics. Sargento declined to comment, but in court filings, it said the amount of antibiotics the plaintiffs claimed to have detected are so minute that it “represents the equivalent of less than half a teaspoon of water in an Olympic-sized swimming pool.”
The Organic Consumers Association, the Family Farm Action Alliance and the Animal Welfare Institute, among the nonprofit organizations behind some of the litigation, say misleading and exaggerated marketing dupes consumers into believing they are supporting companies whose practices align with their values. But deceptive marketing, they contend, has a more pernicious effect: It ensures the continued mistreatment of millions of cows, pigs and chickens raised by Big Agriculture while harming the livelihoods of small farmers committed to more humane animal husbandry.
“We don’t believe that companies should be able to profit from deceiving consumers about their practices,” said Jay Shooster, a lawyer whose firm, Richman Law & Policy, has filed several cases on behalf of advocacy groups. “Even if we can’t sue Tyson for abusing their chickens, at least we can sue them for misleading about how their chickens are treated.”
The companies say the complaints are meritless, noting that a number of cases have been dismissed. Pooja S. Nair, a corporate food lawyer with the firm Ervin Cohen & Jessup, said many are patently frivolous, among them some four dozen cut-and-paste lawsuits filed last year against vanilla-flavored products.
The lawsuits, most of which were dismissed, claimed consumers were misled into thinking the flavoring comes from vanilla beans or vanilla extract. “The landscape for businesses has become increasingly hostile,” she said. “It’s forcing companies to be more creative, and careful, in how they advertise their products.”
Although many of the recently filed lawsuits are still winding their way through federal and state courts, the plaintiffs have been encouraged by a handful of favorable rulings. Other deceptive advertising cases have been settled before trial or through adjudication by the National Advertising Division of the Better Business Bureau.
Last year, Ben & Jerry’s stopped describing the cows that provide the milk for their ice cream as “happy” after the company was sued by an advocacy group. In 2018, General Mills agreed to no longer promote its Nature Valley granola bars as “made with 100% natural whole grain oats,” bowing to plaintiffs who claimed the snack bars contained trace amounts of the herbicide glyphosate. And last month, the NAD recommended that Butterball modify or drop the phrase “farmers humanely raise our turkeys every day” from its labels — although it said it was acceptable for the company to continue saying it has a “zero-tolerance policy against any form of animal mistreatment.”
Advocates say much of the litigation could be avoided through more stringent federal oversight. While they have been heartened by the Biden administration’s efforts to address exaggerated food marketing claims through the FTC and the Food and Drug Administration, they say more systemic change is needed.
A bill introduced in Congress last month would overhaul front-of-package food labeling through a standardized system of symbols to convey whether a product is truly healthy. The measure also directs federal regulators to specifically define terms like “healthy,” and it would require companies to clearly explain how much “whole grain” is in a loaf of highly processed bread. The measure has the backing of nutritionists and healthy food advocates, but opposition from industry lobbyists is likely to complicate its passage in a narrowly divided Congress.
For now, advocates are trying to prod federal regulators through legal activism and public pressure. The Animal Welfare Institute, for instance, has been trying to draw attention to the Department of Agriculture’s role in approving the label descriptions for meat and egg products, which it does by reviewing documents submitted by companies seeking its approval. Inspectors with the Food Safety and Inspection Service, the USDA agency charged with verifying labeling claims, only have jurisdiction over slaughterhouses and meat processing plants, not the farms where the animals are raised.
Since 2013, the institute has requested documentation from the FSIS for nearly 100 package label claims. In more than half of these cases, the agency has been unable to find any documentation to back up its decisions, according to a report. In its review of the files provided, the institute found 28 percent of label claims lacked adequate substantiation.
The FSIS disputed the group’s findings, citing flaws in the institute’s requests submitted under the Freedom of Information Act.
Food marketing can be notoriously fuzzy. Without clear-cut definitions for words like “sustainable,” “humane” or “natural,” food companies have been using claims they know will resonate with Americans concerned with the environment, animal welfare and worker safety.
Jennifer Jacquet, an associate professor of environmental studies at New York University, said legal activism has become the single most effective tool for holding companies accountable for questionable marketing claims. Jacquet, an expert on seafood production, said the labeling rules for farmed salmon, for example, are so weak that companies do not have to disclose whether their fish are wild caught or raised with antibiotics in vast, tightly packed coastal enclosures that can have devastating effects on the surrounding ecosystems.
“Many of these sustainability claims are dubious and wildly overblown,” she said. “And given that labeling requirements are so pathetic, there really is little way for consumers to determine their truthfulness.”
The deceptive advertising claims against Cargill are typical of many recent cases. In a petition filed with the FTC, six advocacy groups took issue with the company’s prominent use of “independent family farmers” to describe the sourcing of the company’s turkey products. The phrase appears on the shrink-wrapped poultry marketed through its Shady Brook Farms and Honest Turkey brands, and cheery claims about the environment are a regular feature of the company’s advertising campaigns.