Earlier this year, a class action complaint was filed against Coca-Cola and one of its subsidiaries, Fairlife LLC, alleging false advertising for selling “humanely sourced” milk. Why false? According to the complaint, which was filed in June, the dairy cows milked at Fairlife’s flagship farm were subjected to allegedly “horrendous animal abuse,” despite Fairlife’s claims in its advertising and on its labels that its animals lived in “extraordinary care and comfort.”
Two other plaintiffs filed separate class action suits only weeks later. These complaints followed closely on the release of videos by an animal rights group called “Animal Recovery Mission” that purportedly displays various types of abuse of cows and calves at the farm, sparking a social media wildfire. (The footage reportedly showed, for example, Fairlife cows being dragged, slapped, or pushed.)
The class actions allege that buyers were duped into purchasing Fairlife products based on the “fraudulent” claims by Fairlife of the humane treatment given to Fairlife’s cows. One plaintiff even alleged that Fairlife’s advertising and labeling – which included a “cute drawing” of a cow that suggested “the animal is healthy and happy” – had deceived buyers into contributing to and participating in the cruelty. Fairlife has not yet responded in these actions.
The case is but one more of an increasing number of false advertising lawsuits brought against players in the food and beverage industry in the last several years, perhaps now shifting focus onto animal production issues. The targets of these lawsuits have varied, but in general, potential plaintiffs (and attorneys) tend to key on certain types of “trigger words” that provide fodder for false labeling actions. What makes a good trigger word? Usually, it’s a word or phrase that rings positive but doesn’t have a clear definition or is hard to substantiate. Think “wholesome,” “healthy,” “natural” or “all-natural,” or “produced locally,” among multitudes of other examples.
In Fairlife’s case, the key trigger phrase was “humanely sourced.” What does that mean? The short answer: nothing, or at least nothing specific or independently verifiable, and Fairlife doesn’t define it. The lack of clear definition creates a gray area, and plaintiffs’ attorneys are more than happy to fill in the gray area with their own versions of what the phrase means to consumers – and, accordingly, their own explanation as to how Fairlife’s products did not meet that “understood” definition. What is more, should Fairlife argue that the phrase had no objective or significant meaning to the buyers of their products, the question in response is, “Then why use it at all?”
Another concept highlighted by these Fairlife cases is that trigger words do not necessarily need to be words at all – photos, drawings, or other imagery can provide a basis for false labeling claims. Artwork that suggests something about a product to consumers – like a “cute” drawing of a cow suggesting, allegedly, that Fairlife’s cows are happy and well-treated – may be used by plaintiffs and their attorneys to demonstrate that a company’s practices and promises do not jibe. It may seem far-fetched, but it is not necessarily beyond the pale. Ultimately, if an advertisement or label can be construed as deceptive or misleading to a reasonable consumer, the case may have legs (or at least survive a motion to dismiss).
How can a company best protect itself against the possibility of litigation over its advertising and labeling practices? While no company can completely rid itself of the risk of suit, a few best practices have developed over the years that can help either minimize the chances of a plaintiff identifying certain products as false or misleading or, if a lawsuit does arise, give the company some protection or ammunition to use in its defense.
For any phrase or aspect of a company’s label that could be reasonably construed by consumers to say something about the product, companies should consider: (1) can I expect consumers to give meaning this aspect of my labeling or advertising; (2) is that potential meaning a reasonable one; and (3) can I substantiate or verify this aspect of my label or advertising according to a reasonably objective standard? And for any aspect of a label or advertisement that could be a “trigger” – something that lacks any independent definition but can nevertheless be construed by consumers to mean something – companies should proceed with extra caution. The best approach for trigger words may be to avoid using them entirely. If the company can’t realistically avoid it, though, then it should consider creating its own definition of the trigger word and communicating that definition to buyers – and of course, ensuring that the product actually meets the definition.
*Special thanks to summer associate Zach Meyer for his assistance in researching and preparing this post.