Ninth Circuit Drops Action Aimed at ‘100% Natural’ Chicken Ads

The three-judge panel found environmental and food safety advocates do not have standing to challenge Sanderson Farms over its “misleading” ads on antibiotics in chicken.

(AP Photo/Rich Pedroncelli, File)

SAN FRANCISCO (CN) — Public interest groups cannot show they diverted significant resources to battling poultry producer Sanderson Farms’ ad campaign about the “100% natural” quality of its chickens, the Ninth Circuit ruled Wednesday.

Friends of the Earth and the Center for Food Safety sued Sanderson Farms in 2017, claiming it advertised 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 appellate decision upholds a district judge’s ruling nixing the case in 2019 after he found the groups failed to show they had expended extra time and energy combating the allegedly misleading ads from August 2016 to June 2017. 

The panel heard oral arguments in October 2020, where they questioned the timing of the lawsuit — brought after Sanderson ran an ad defending its use of antibiotics and whether the groups’ activities were just a continuation of an ongoing fight to reduce antibiotic use in animals raised for food.

“Two temporal bookends put into perspective the timing of the advocacy here. Because the Advocacy Groups did not learn of Sanderson’s alleged misrepresentations until August 1, 2016, resources expended before that date are not pertinent,” wrote U.S. Circuit Judge Margaret McKeown, a Clinton appointee, for the three-judge panel. “And activities undertaken after suit was filed in June 2017, such as expending resources on the litigation and litigation publicity, do not confer standing.”

The judges also found the groups’ advocacy efforts to be business as usual, and that the groups could not establish standing to sue. 

“After nearly two years and mountains of discovery, the advocacy groups could meaningfully offer only a single conclusory, contradictory, and uncorroborated statement as evidence of diverted resources,” McKeown wrote. “Once Sanderson’s misleading advertisements were brought to the attention of the Advocacy Groups, they simply continued doing what they were already doing — publishing reports on and informing the public of various companies’ antibiotic practices. This evidentiary void cannot be filled by emails in which the advocacy groups’ employees shared articles about Sanderson’s practices and deceptive advertisements, querying internally whether something should be done; evidence of any diversion of resources remains missing.”

McKeown was joined on the panel by U.S. Circuit Judge Jacqueline Nguyen, a Barack Obama appointee, and fellow Clinton appointee Senior U.S. District Judge Robert Whaley, sitting by designation from the Eastern District of Washington.

Sylvia Wu with the Center for Food Safety said Wednesday that the group is disappointed that the court’s ruling focused on one particular ad campaign when its lawsuit was about Sanderson’s factory farming practices in general. She said Sanderson “continues to mislead consumers” about its products, which it still labels as 100% natural.

“The groups’ efforts were targeted at false and misleading claims against Sanderson about its products being natural when they are anything but,” Wu said. “We will continue our efforts to monitor Sanderson and other factory farms and fight for consumers and the environment.”

Two other false advertising actions are pending against the company in the Northern District of California; one brought by a class of consumers and the other by Friends of the Earth and the animal protection nonprofit In Defense of Animals.

“Friends of the Earth is disappointed in the Ninth Circuit’s narrow application of standing principles to rule that we did not show a sufficient diversion of resources in response to learning about Sanderson’s false advertising practices,” Friends of the Earth Deputy Legal Director Hallie Templeton said in an email. “Despite the bad news today, we continue to fight for what is right by doing all we can to force Sanderson to stop violating the law by deliberately misleading the public and lying to consumers.”

She added that its other case brought along with In Defense of Animals targets Sanderson’s alleged ongoing deception.

“We remain optimistic that our work will make a difference by forcing Sanderson to either come into compliance with its own claims of ‘100% Natural’ chicken, or to stop making these claims altogether,” Templeton said.

Sanderson Farms is represented by Michael Glick with Kirkland & Ellis LLP, who did not return a call seeking comment Wednesday.

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