Articles from February 2019

Friends of the Earth v. Sanderson Farms: The Detective Standard Fails

In a short but substantive opinion issued in December 2018, Judge Richard Seeborg of the Northern District of California slapped down an attempt by Sanderson Farms, Inc. to dismiss claims brought by two non-profit organizations, Friends of the Earth and the Center for Food Safety, regarding Sanderson Farms’ misleading “100% Natural” advertising of their chicken products. Friends of the Earth, et al. v. Sanderson Farms, Inc., No. 17-cv-03592-RS (N.D. Cal. Dec. 3, 2018) (slip op. available here). In a scant eleven pages, the court methodically dismantled each of Sanderson Farms’ arguments—which mainly focused on the notion that the company’s website provided context to the company’s “100% Natural” slogan, rendering it not deceptive or misleading—and sustained the plaintiffs’ third amended complaint in its entirety. This case offers a roadmap for plaintiffs seeking to defeat the kind of tactics deployed by defendants to defeat consumer claims, such as imputing knowledge of disclaimers found in the company’s website to consumers, in an effort to show that its advertising is not false or misleading.

In Friends of the Earth, the plaintiffs alleged that Sanderson Farms’ “100% Natural” advertising campaign falsely and misleadingly suggests that the poultry it produces, through purportedly “natural” farming practices, meets reasonable consumer expectations of “natural” poultry. A reasonable consumer’s expectation is that “natural” poultry would not be regularly treated with antibiotics for a majority of their lives and that the farming practices would not contribute to the spread of antibiotic-resistant bacteria.

In its motion to dismiss, Sanderson Farms argues that the full context of its advertisements, including an infographic on its “100% Natural” webpage, dispels any potential confusion arising from the slogan “100% Natural.” And Sanderson Farms “double[d] down” on its “100% Natural” webpage by pointing to a link on that page that takes consumers to a separate FAQ webpage, which acknowledges that their chicken is treated with antibiotics (contrary to their “100% Natural” advertising and undisclosed elsewhere). According to Sanderson Farms, had consumers reviewed the entire website, the “100% Natural” statement would not have been misleading in that context. Slip op. at 6. The court however, rejected such an argument: “Sanderson attempts to bootstrap case support for the need to assess a full webpage into the proposition that an entire website must be considered in determining if a statement was misleading.” Id. (emphasis added). In its rebuke, the district court stated: “[n]o authority suggests a reasonable consumer is expected to search a company’s entire website . . . to find all possible disclaimers . . . . Although the reasonable consumer standard demands that a plaintiff must show ‘more than a mere possibility’ that a challenged advertisement might conceivably mislead a few consumers, it does not ask they be a private investigator . . . .Id. at 7 (internal citation omitted) (emphasis added).

In other words, consumers should not be required to go trawl through each page of a manufacturer’s website to determine whether they are being misled by claims that are made on food packaging. This pro-consumer opinion should put corporate defendants on notice that plaintiffs are not required to piece together a puzzle of webpages in order to avoid being deceived or misled by mislabeled or falsely advertised goods.

Authored by:
Tarek Zohdy, Senior Counsel