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Meat Product Companies Face Increasing Litigation for Humane Raising Claims

Mar.12.2021

What do consumers think when they see a label on a package of supermarket chicken, beef or pork, stating that the meat has been “humanely raised?” The final week of February 2021 witnessed two important developments that shed light on a burgeoning legal attack on certain farming production and advertising practices. 

On February 23 the Animal Welfare Institute (AWI) submitted two complaints to the Federal Trade Commission (FTC), alleging that Boar’s Head Provision Co., a purveyor of deli meats to supermarkets, deceptively advertises that its chicken sausages and Simplicity All Natural turkey products come from “humanely raised” animals, when in reality these products merely comply with what the petition describes as a self-certification of “low standards” for animal care. On the same day, however, a California state appellate judge affirmed summary judgment dismissing a class action that had alleged poultry provider Foster Farms misled customers by using American Humane Association (AHA) labels on chickens treated in a manner below consumers’ expectations and industry standards. The court found that the claims were preempted under the Poultry Products Inspection Act (PPIA) because the company’s label that included the AHA Certified logo were reviewed and pre-approved by the U.S. Department of Agriculture’s Food Safety and Inspection Service (FSIS).

The complainants before the FTC and in the class action each allege that consumers interpret a “humanely-raised” claim to mean, for example, that the advertised meat comes from animals that “are raised to a standard of care that is higher than industry norms.” AWI’s petition to the FTC asserts that the Boar’s Head products at issue each contain the following statement: “Boar's Head Brand® defines humanely raised as animals raised with shelter, resting areas, sufficient space and the ability to engage in natural behaviors.” AWI alleges, however, that this falsely supports the impression that the turkeys and chickens are raised to a standard of care that exceeds the baseline standard of care that exists in the industry. AWI argues that Boar’s Head cannot substantiate its humanely raised advertisements because the audits upon which these claims are based—the National Turkey Federation Production Audit and Farm Animal Care Training & Auditing—are conducted by industry-front certifiers that have developed lenient standards which merely codify standard industry animal care practices that fall short of “humane” treatment.

The USDA itself has not mandated or provided specific guidance for animal welfare claims, including “humanely raised.” Instead, the agency allows producers to establish their own definitions or use definitions promulgated by other parties. However, the PPIA requires all consumer-facing labels used on poultry products to be pre-approved by FSIS. In 2019, the FSIS updated its Labeling Guidelines regarding “animal raising claims,” but while they do specify standards for claims such as “free-range” and “raised without antibiotics,” they do not include substantive requirements for a claim of humane animal treatment. Instead, the guidelines specify that the label must either describe what is meant by “humane” or, if a third-party certification is used, provide the certifier’s name, logo, and a website address where the standards are described. AWI alleges that this rule permits USDA to accept audits of industry trade association minimum animal care guidelines as substantiation for “humanely raised” and does not verify compliance with animal welfare standards.

Foster Farms utilizes AHA certification on its labels and states that it provides five “freedoms” their chickens enjoy. Foster Farms suggests their chickens will not experience overcrowding, environmental stressors, or cages. AHA further qualifies the certification as science-based welfare standards and suggests an expectation of humane handling in all stages of life. The now-dismissed class action had alleged that Foster Farms’ claims and use of the AHA certification are negligent and misleading as various “objectively inhumane” procedures are allowed under the certification standard. In dismissing the case, the California court found that the claims were preempted by the PPIA because the AHA certification logo was reviewed and pre-approved by FSIS. The court reasoned that if the plaintiff prevailed, California courts would be imposing an additional requirement to those imposed by the PPIA. The class action narrowly survived demurrer and Foster Farms prevailed in the motion for summary judgment.

AWI has previously levied challenges against companies such as Allen Foods (later renamed Allen Harim Foods) and Perdue Foods, Inc. for using the term “humanely raised” in reference to chicken products. Unlike the Boar’s Head complaint, these claims were brought before the National Advertising Division (NAD), a division of BBB National Programs. Both companies subsequently removed the claim from their products. More recently, AWI successfully challenged Hatfield Quality Meats before the NAD in 2019 for making the claim that its products were “Ethically Raised by family farmers committed to a higher standard of care governed by third party animal welfare audits.” The NAD recommended that Hatfield Quality Meats and its parent company, Clemens Food Group, discontinue using the claim on the pork product packaging at issue. This represented the first time that the NAD has recommended that a company remove an animal welfare-related claim from a meat product. 

Though the FTC is not bound by NAD decisions, the AWI urges that “a finding by the NAD that an advertisement is inconsistent with consumer expectations and therefore misleading should at least be considered” by the agency.1 It remains to be seen whether the FTC will follow the NAD’s example and order that Boar’s Head remove the animal welfare claims from its products. Further, for the time being, state claims against humane advertisements have found a strong defense under the federal preemption doctrine—at least as to poultry. Humane and other animal treatment claims, including claims for beef, lamb and pork, may face more litigation in the future.

For more information, please contact the professional(s) listed below, or your regular Crowell & Moring contact.

Christopher A. Cole
Partner – Washington, D.C.
Phone: +1 202.624.2701
Email: ccole@crowell.com
Helen Osun
Associate – Washington, D.C.
Phone: +1 202.624.2585
Email: hosun@crowell.com
Mariam Sarwar
Associate – Los Angeles
Phone: +1 213.443.5570
Email: msarwar@crowell.com
Roy Abernathy
Associate – Washington, D.C.
Phone: +1 202.654.6722
Email: rabernathy@crowell.com

1 Former FTC Bureau of Consumer Protection Director Mary Engle is now Executive Vice President for Policy of the BBB National Programs, Inc., the organization that administers NAD. In her prior role at the FTC, Ms. Engle reviewed all NAD referrals to the FTC. Her new role at BBB may foreshadow greater deference by the FTC to NAD decisions.