Sanderson Farms Must Face ‘100% Natural’ Suit – Law360
(February 9, 2018, 9:55 PM EST) — A California federal judge ruled Friday that Sanderson Farms must face claims from three nonprofits that it falsely advertises its chicken products as "100%natural" and misleads consumers about how the animals are raised, finding their claims aren’t preempted by federal law.
U.S. District Judge Richard Seeborg ruled that the suit brought by the Organic Consumers Association, Friends of the Earth and the Center for Food Safety – alleging that Sanderson products tested in 2015 and 2016 by the U.S. Department of Agriculture’s Food Safety and Inspection Service were found to contain synthetic drug residues in 49 instances – isn’t preempted by the PoultryProducts Inspection Act and Federal Meat Inspection Act.
The judge rejected Sanderson’s argument that allowing the nonprofits’ state law false advertising andunfair competition claims to go forward would foil Congress’ intent in enacting the federal statutes to provide uniform national standards for monitoring food producers and making sure they do not mislead consumers about the contents of meat products. The chicken producer also argued that allowing the groups to challenge advertising using the "100%Natural" language approved by the USDA would undermine the agency’s authority, according to the order.
"Both of these arguments are unavailing," the judge said. "First, as an initial matter, consumer protection laws such as the unfair competition law and false advertising law are within the historic police powers resting with the states and are therefore subject to the presumption against preemption. "Neither the PPIA nor the FMIA shows that Congress intended to limit legislation like the California state laws, the judge said.
The judge also said that the "100% Natural" language approved by the USDA for Sanderson’s labels can still be misleading in other contexts. "Label language is reviewed for technical and scientific accuracy," the judge said. "Yet common sense suggests even ‘language that is technically and scientifically accurate on a label can be manipulated in an advertisement to create a message that is false and misleading to the consumer.’"
Sanderson’s advertising includes images, representations and language beyond what is included on the USDA-approved label, and a court or jury could conclude that the ads are misleading without contradicting the USDA’s authority, the judge said.
Sanderson Farms sells its chicken products to both supermarkets and restaurant chains around the country, and is marketing its chicken in a deceptive manner, the groups alleged in the June complaint. The substances found in Sanderson products included antibiotics used in both humans and animals and other drugs including the anesthetic ketamine.
The tests also revealed an additional 82 instances of unconfirmed residues including pesticides, the complaint said. The findings are the result of 69unique inspections conducted by the National Residue Program of Sanderson farm samples. The tests found residues of antibiotics for human use in 11 separate instances, the complaint said. The test results contradict claims by Sanderson that "since 2009, no violative antibiotic residues have been found in poultry meat," the complaint said.
Representatives for the companies didn’t immediately respond to requests for comment on Friday.
The nonprofits are represented by Kim E. Richman and Jaimie Mak of The Richman Law Group, Gretchen Elsner of Elsner Law & Policy LLC, and Paige Tomaselli and Adam Keats of the Center for Food Safety.
Sanderson is represented by Elizabeth L. Deeley of Latham & Watkins LLP, and Michael Glick, Jonathan Jones, Gregg LoCascio and Mark McKane of Kirkland & Ellis LLP.
The case is Organic Consumers Association et al. v. Sanderson Farms Inc., case number 3:17-cv-03592, in the U.S. District Court for the Northern District of California.–Additional reporting by Sophia Morris.
Editing by Breda Lund.AllContent(c)2003-2018,PortfolioMedia, Inc.