On April 8, 2019, a judge in the Superior Court of the District of Columbia, Civil Division, granted summary judgment to Hormel Food Corporation (Hormel) in a case filed by the Animal Legal Defense Fund (ALDF) on the grounds of standing and pre-emption, confirming the rule established in jurisdictions across the country that the approval of “natural”-related claims by the United States Department of Agriculture (USDA) pre-empts state-law allegations of false and misleading advertising when the manufacturer has used the terms as approved.
ALDF filed its complaints in 2016, seeking declaratory and injunctive relief against Hormel for violations of the D.C. Consumer Protection Procedures Act (CPPA) regarding Hormel’s Natural Choice® meat products and its “Make the Natural Choice” advertising campaign, which started in 2015. ALDF alleged that Hormel violated the CPPA because it materially misled consumers into believing that Hormel’s products are from humanely raised animals, were not “factory farmed,” and that its products do not contain preservatives or nitrates or nitrites not from natural sources. The campaign emphasizes that the products are “100% natural,” are “all natural,” and contain no added preservatives. The ads also use the terms “clean,” “honest,” “higher standards,” “safe,” and “wholesome.” The USDA approved labeling Natural Choice products “Natural,” “All Natural,” “100% Natural,” and “No Preservatives.” The ALDF’s main contention was that the use of the term “natural” was inconsistent with the use of “factory farming.” ALDF had unsuccessfully argued this point before USDA prior to bringing its lawsuit.
The Federal Meat Inspect Act (FMIA) and Poultry Products Inspection Act (PPIA) regulate the labeling of meat and poultry products. These laws prohibit the sale of meat and poultry products if the product has labeling that is false or misleading, and also delegate the regulation of meat and poultry products to the USDA. The USDA, through its Food Safety Inspection Service (FSIS), has promulgated regulations governing the labeling and packaging of these products and, through these regulations, approved Hormel’s Natural Choice labels. Both the PPIA and FMIA contain a pre-emption clause that provides that no state may impose additional or different marking, labeling, packaging, or ingredient requirements. While the PPIA and FMIA do not regulate advertising, where a meat producer is using the same terms in the same way in its advertising and in its approved labeling, courts have found state law claims pre-empted. See Phelps v. Hormel Foods Corp., 244 F.Supp.3d 1312 (S.D.Fla. 2017).
The court’s ruling here followed this precedent. It noted that if a claim is accurate in a label, a state cannot make it illegal to claim the same in advertising. Otherwise, consumers will be confused by the materially different descriptions of the products and prevented from relying on labels as an authoritative source of information about a product’s ingredients, which is one of the purposes of the FMIA and PPIA. The court did acknowledge that Hormel’s current ads do not include the USDA-required disclaimer when a product is described as natural, and that the company uses a possibly confusing leaf instead of an asterisk to indicate the presence of a disclaimer. However, ALDF failed to offer expert or other admissible evidence that consumers were actually misled by the lack of a disclaimer or use of a leaf instead of an asterisk; such evidence is necessary to withstand or support a motion for summary judgment.
While this case is a glimmer of good news in what is otherwise a generally bleak “natural” litigation landscape, it is worth a quick reminder that the pre-emption provision is limited to state law claims. At the federal level, Lanham Act claims that seek to challenge advertising that may satisfy federal regulatory requirements are not subject to pre-emption and may be permitted to proceed. For example, in 2008, a number of Tyson Food’s competitors successfully challenged Tyson’s claim that its chickens were raised without antibiotics even though that claim had been approved by USDA.