Is farmed fish “sustainably sourced”? – Advertising, marketing and branding

The Federal Trade Commission’s Green Guides provide advice on how to make environmental marketing claims that are truthful and not misleading. The green guides explain how to make claims such as “recyclable” and “made with renewable energy”, and they also warn against general environmental benefit claims, such as “eco-friendly”.

The Green Guides were last revised in 2012, so they lag a little behind on a number of key claims, such as ‘sustainable’ and ‘circular’, that advertisers commonly use today to market environmental benefits of their products. Late last year, however, the FTC announced that it planned to launch a review of green guides in 2022. So over the next year, we should expect to see new guidelines from the Commission on how she views green claims, which will hopefully include guidance on some of the new types of claims marketers are currently using.

In the meantime, there’s plenty of other green marketing activity going on, which may give us some clues as to how the FTC can address these issues when it addresses them. For example, the International Chamber of Commerce recently launched its updated Framework for Responsible Environmental Marketing Communications, which provides helpful guidance on some newer claims. The National Advertising Division of BBB National Programs, in its rulings, is also grappling with some of these new claims. Some states, such as California, are passing new environmental marketing laws. Additionally, the FTC has issued warning letters warning marketers against claims such as “sustainable” and the like. And there’s no shortage of other regulatory action and lawsuits to challenge all the different types of green claims.

One of the areas we are watching closely is how the courts and self-regulatory assess sustainability claims, as ‘sustainable’ claims are widely used by marketers but not covered in green guides. . When the green guides were released more than a decade ago, the FTC said it didn’t have enough evidence about the meaning of the claim to provide guidance on how to use it.

Recently, in a false advertising lawsuit against ALDI, the supermarket chain argued that its claim that its salmon was “sustainable” was inflated. The court, however, found this argument to be quite fishy, ​​saying that ALDI claimed its product was “sustainable” in order to “tie its product to at least some environmental benefits”. Accordingly, it can reasonably be inferred that ALDI’s label suggests, at a minimum, that its product is manufactured in such a way as to minimize negative impact on the environment, which may be actionable as something beyond the buffoonery.”

Recently, a federal court in Massachusetts ruled on another case that provides a bit more guidance on what “durability” claims may communicate to consumers. In the lawsuit, some consumers sued Gorton’s – which is apparently the largest producer of fish fingers in North America – alleging the company falsely claimed its grilled tilapia product was “sustainably sourced”.

The plaintiffs claimed that this statement was false and misleading because tilapia is “industrially farmed using unsustainable practices that are environmentally destructive and inhumane”. The plaintiffs point to the fact that some of Gorton’s tilapia comes from large industrial fish farms in China and that Monterey Bay Aquarium Seafood Watch had specifically warned consumers to avoid tilapia raised in China due to sustainability concerns. The plaintiffs alleged that the use of pond aquaculture by Chinese fish farms – where, apparently, thousands of fish are crammed into shallow ponds – not only creates various environmental hazards, but mistreats the fish. Gorton’s, however, argued that its farming practices are sustainable, relying on credible third-party certifications to ensure it followed industry best practices.

On a motion to dismiss, the court allowed the case to continue, but limited the scope of the plaintiffs’ claims. The court found that the plaintiffs had made a plausible claim that the company’s tilapia came from Chinese fish farms that are unsustainable due to their alleged environmentally destructive and inhumane practices. The court also held, however, that the fact that the fish was farmed – as opposed to wild – did not necessarily mean that the fish was not sustainably sourced. The court wrote, “To the extent plaintiffs cast a wider net in arguing that only wild-raised tilapia are sustainable, they will end up empty.”

Why is this case significant? One of the concerns with “sustainability” claims is that regulators and complainants may argue that “sustainable” means that the production of the product has no negative impact on the environment. If sustainability means “the ability to meet the needs of the present generation without compromising the ability of future generations to meet theirs”, how do you claim that a product is “sustainable” if there is an unavoidable negative impact on the environment? This court, at least, seems open to the idea that “enduring” claims can communicate something more nuanced than that.

Spindel versus Gorton2022 WL 3648823 (D. Mass. 2022).

Originally posted by Advertising Law Updates

This alert provides general coverage of its domain. We provide it on the understanding that Frankfurt Kurnit Klein & Selz does not here undertake to provide legal advice and will not be liable for any damages resulting from any error, inaccuracy or omission. Our attorneys practice law only in jurisdictions where they are duly licensed to do so. We do not seek to represent clients in other jurisdictions.

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