Suit Over Whole Foods’ Humane Ads Faltering

SAN JOSE, Calif. (CN) - A federal judge appeared ready to dismiss a PETA lawsuit claiming Whole Foods misrepresents its animal-welfare standards.

In staking out a tentative ruling, U.S. Magistrate Judge Nathanael Cousins told People for the Ethical Treatment of Animals and Whole Foods shopper Lori Grass that they needed to prove that Whole Foods' assertions about how its animal products are treated while alive were not simply omissions of something they would've liked to have disclosed, but actual material misrepresentations.

"If Whole Foods is right in their arguments, I am inclined to dismiss the case," Cousins said in a hearing in San Jose federal court on Wednesday afternoon.

PETA and Grass sued Whole Foods in September 2015, targeting the high-end grocer's five-step animal welfare rating system for meat suppliers as a "sham."

Whole Foods rolled out its five-step rating system developed by the Global Animal Partnership in 2009, and expanded it nationwide in 2011. All its suppliers must meet Step 1 standards to sell products in Whole Foods stores, which say its suppliers use "no crates, cages or crowding."

But PETA says suppliers fail to live up to even the lowest standard, and Whole Foods only requires that they submit to one scheduled audit every 15 months.

"They do not have a sufficiently rigorous auditing standard and so they are misrepresenting this program to the public," PETA attorney Christopher Pitoun said. "They say their farmers and ranchers focus on and emphasize good treatment of animals, but there is no way for us to know that."

But Whole Foods says the Global Animal Partnership is recognized by federal agencies as a legitimate certification of ethical treatment of animals, and there is nothing misleading about telling consumers their meet meets such standards.

"The plaintiffs' theory is that a company can say a completely true statement and then be sued for creating a false impression based on a true statement," Whole Foods attorney Brian Blackman said.

Blackman further argued that PETA has a pure omissions case, and several similarly situated consumer cases have failed because they failed to show the omission related directly to consumer safety.

Cousins seemed inclined to accept that argument.

"Here the concerns are not safety concerns, they are something different," Cousins said.

Nevertheless, Pitoun persisted in arguing the case is not about omission or something Whole Foods left out, but instead that the company misrepresented its position by claiming they sourced their meat from farmers and ranchers who claim to care about animal welfare without the proper mechanism to verify whether that is true.

The judge has twice granted Whole Foods' motions to dismiss, giving the PETA and Grass the opportunity to amend the complaint.

Cousins said he would issue a written ruling soon.

Neither lawyer commented after the hearing. Pitoun is with Hagens Berman Sobol Shapiro in Los Angeles. Blackman is based in San Francisco.

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