SAN FRANCISCO (CN) — Public interest groups asked a Ninth Circuit panel Tuesday to resurrect their false advertising fight against Sanderson Farms, the third largest poultry processor in the United States.
Friends of the Earth and the Center for Food Safety sued Sanderson Farms in 2017 for advertising its chicken as “100% Natural” while confining its birds in overcrowded conditions and routinely using mortality-preventing antibiotics and other pharmaceuticals to stave off illness in the flock.
The groups brought claims for false advertising and California’s Unfair Competition Law — which prohibits deceptive and misleading advertising and unlawful, unfair or fraudulent business practices.
But in an order nixing the case last year, U.S. District Judge Richard Seeborg of the Northern District of California said neither organization could establish an injury directly traceable to Sanderson’s advertising and therefore had no grounds to sue.
[P]laintiffs have failed to produce evidence demonstrating they expended additional resources to address Sanderson’s advertisements, as opposed to its practices,” he wrote.
Representing the groups, attorney Paige Tomaselli asked the panel to overturn Seeborg’s ruling, saying the case is more broadly about the organizations’ efforts to counteract Sanderson’s misleading public statements and their diversion of resources to address the alleged deception.
She said Seeborg wrongly discounted Sanderson’s animal husbandry practices and only considered its advertising.
“The unlawful prong is based on a violation of the false advertising law, but we also allege that Sanderson engaged in unfair and unethical practices and that it made false statements and misleading statements about those practices,” Tomaselli said.
“It may be more broad, but the question is what is the claim here with respect to unfair competition?” said U.S. Circuit Judge Margaret McKeown, a Bill Clinton appointee. “It seems to be the conduct of how the farm is run versus representations made about their product. So which is it?”
Tomaselli answered, “It’s both. It’s the practices and the false statements about the practices.”
In other words, the practices and advertising are linked, and Seeborg artificially bifurcated them.
Seeborg also focused on whether the groups diverted resources prior to Aug. 1, 2016, around the time Sanderson Farms launched a television campaign defending its use of antibiotics. In the ad, “Bob and Dale” from Sanderson Farms dismiss chicken advertised as raised “antibiotic-free” as a marketing gimmick. “That’s just a trick to get you to pay more money,” Dale says. Bob adds, “Fact is, by federal law, all chickens must be clear of antibiotics before they leave the harm.”
Sanderson said the groups did not show they diverted resources prior to this ad and Seeborg agreed, finding “little to undercut Sanderson’s contentions regarding plaintiffs’ activities prior to Aug. 1, 2016,” and that “plaintiffs cannot rely on evidence prior to Aug. 1, 2016, to support their standing to sue.”
Tomaselli challenged that. “The appellants have never denied that they were working on antibiotics issues before this Aug. 1, 2016, time period,” she said. “But at this time, they increased their diversion of resources.”
Sanderson Farms attorney Michael Glick said the case was never about anything other than false advertising.
“We don’t dispute that Sanderson’s practices are relevant, but what they are challenging here is the alleged misrepresentation are different from the practices themselves. That’s all this case was ever about,” Glick said.
He said the Center for Food Safety and Friends of the Earth could not show they expended money and staff time to directly combat Sanderson’s advertising, but simply incurred regular program costs, as Seeborg ruled. “Plaintiffs here are self-described advocacy organizations. The few stray references to Sanderson that they identify from those activities are just business as usual,” Glick said.
The panel took the case under submission. U.S. Circuit Judge Jacqueline Nguyen, a Barack Obama appointee, and Senior U.S. District Judge Robert Whaley, a Clinton appointee sitting by designation from the Eastern District of Washington, rounded out the panel.