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Legal Remedies for "Humane-Washing" The Courts: State & Federal Court

Food-Label & False Advertising Attorney

"Humanely Raised" Deception: What is it?

Consumers increasingly want their products created in the most animal-friendly and environmentally-friendly ways. Unethical meat sellers exploit these desires through false advertising known as humane-washing and green-washing. Typical phrases that may amount to humane-washing include:

  • "Humanely raised"
  • "Humanely treated"
  • "Raised humanely"
  • "Ethically raised"
  • "Raised ethically"
  • "Ethical"
  • "Responsibly raised"
  • "Responsibly sourced"
  • "Thoughtfully raised"
  • "Stress-free"

The United States Department of Agriculture (USDA) does not define these terms, leaving it to the sellers to contrive their own definitions. When challenged, some meat sellers claim that these advertising claims are "puffery" or "aspirational" to dodge responsibility for any deception they may cause. Although sellers of meat (not eggs or dairy) must technically "substantiate" these "special claims," I personally have yet to see one FOIA response (Freedom of Information Act) that I've made that reasonably substantiates these types of advertising claims.

For an in-depth look at humane-washing, read, Is Humane-Washing of Meat and Poultry False Adversing?

"Humanely-Raised" Claims Influence Consumers' Decisions, Studies Show

Consumers who are sensitive to animal suffering are willing to pay more for "humanely-raised" or "ethically sourced" animal flesh—whatever that means. To consumers, ethical choices matter in their purchases as much as how well a product functions, or how long it lasts.

American consumers increasingly identify the welfare and protection of food animals as a major area of concern, both politically and as criteria for food selection.[1]

"Humanely-raised" animals in theory cost more to produce. Sellers are financially incentivized to misrepresent the truth, or at least come up with misleading definitions of what "humanely-raised" means. Doing so, however, interferes with the free market, and violates the law. False-advertising laws exist to ensure that consumers receive the information they need to make the purchasing choices they want. Where regulatory bodies fail (FTC, FDA, and USDA), consumers may engage the court system.

Consumers Can Fight Back Under State False-Advertising Statutes

False-advertising law is one way that consumers can make their votes count. Consumers who rely on humane-washing may suffer a direct, actionable injury. State courts have false-advertising statutes, referred to as "little FTC" acts, available for consumers to sue meat and food sellers for false advertising. In New York, we have General Business Law § 350, coupled with General Business Law § 349, which are closely examined in The Ultimate Guide to False-Advertising Law in New York: 22 FAQs.

In a nutshell, in order for a private plaintiff to "state a claim" under GBL § 350, she “must allege that a defendant has engaged in

  1. consumer-oriented conduct; that is
  2. materially misleading; and that
  3. plaintiff suffered injury as a result of the allegedly deceptive act or practice.”

Both private plaintiffs and the Attorney General can bring a false-advertising lawsuit. As far as damages, prevailing private plaintiffs (consumers or competitors) are entitled to damages and/or injunctive relief in successful cases. The court, at its discretion, may also award reasonable attorneys' fees with treble damages (three times actual or compensatory damages). Treble damages require a willfulness to violate GBL § 350, and are limited to ten thousand dollars.

Businesses Can Sue Competitors for Injuries Caused by False Advertising

Businesses can sue competitors for commercial injuries caused by false advertising under the Lanham Act. 15 U.S.C. § 1125. This Act creates a federal cause of action for false advertising in interstate commerce with broad remedies ranging from injunctive relief and damages, to corrective advertising.

Businesses Suing Inhumane Meat Producers Under the Federal Lanham Act

In the area of humane-washing, the Lanham Act may provide good grounds for a "humane" food producer to sue a meat producer for misleadingly highjacking the word "humane." Under the law, courts would analyze consumer perceptions about the animal treatment at issue. A shining example of a businesses using the Lanham Act to address humane-washing is Animal Legal Defense Fund et al v. HVFG, LLC. The plaintiff, Regal Vegan, produced a non-meat spread called faux gras to compete with fois gras, which is produced from the livers of forcefully fattened ducks or geese. This "delicacy" is typically made by force-feeding the water fowl through a “gavage” (a long feeding tube) causing their livers to become greatly enlarged. The defendant, HVFG, LLC, actually used the slogan "the humane choice" for this product based on its argument that the fowl were not caged and were given "extra care." The court found that Regal Vegan had standing to address injury in the market of "spreadable pates for consumers interested in animal welfare."

As we saw in Is Humane-Washing of Meat and Poultry False Adversing, the word "humane" is susceptible to definition, held the court. As such, the defendant here could not argue that the word "humane" constitutes merey "puffery" (opinion). The court held that Congress' two other definitions of "humane" in other contexts carried a "theme of pain." Therefore, a claim that a product is “the humane choice” might constitute a statement that could be proved false or “reasonably interpreted as a statement of objective fact.”

Broader Remedies for Businesses Injured Under the Lanham Act

The federal Lanham Act may be attractive for businesses because of its broad remedies, which may include injunctions, corrective advertising, damages for lost profits or defendant’s profits, costs, and attorney’s fees.

Contact us right away for a free consultation due to any injury or deception caused by false advertising, especially in the area of humane-washing.

[1] The welfare and protection of animals raised for food was seen as very or somewhat important by 79 percent of respondents to a survey managed by the Humane Research Council. Humane Research Council, Animal Tracker – Wave 112 (2008), available at 73 percent responded that they would support a law requiring that farm animals, including, pigs, cows, and chickens, be provided with enough space to behave naturally.