ConAgra makes frozen fish products – such as Mrs. Paul's Crispy Battered Fillets and Van De Kamp's Fish Sticks – which it advertises as "Certified Sustainably Sourced." Is it proper for ConAgra to promote this certification on its packaging, even if there are questions about whether the company's fish is, in fact, sustainably sourced? That was one of the issues in a very interesting case that was recently decided by a federal district court in Illinois.
ConAgra works with the Marine Stewardship Council ("MSC"), which is a non-profit organization that certifies fisheries who meet its standards for sustainable and marine-friendly fishing practices. ConAgra sources its fish from MSC-certified fisheries and then receives a "Certified Sustainable Seafood MSC" certification to use on its packaging. On the packaging, ConAgra also claims that its products are "Good for the Environment."
Some consumers sued, alleging false advertising and other claims under various state laws. The plaintiffs claimed that, contrary to ConAgra's claims, the company's fish isn't sourced sustainably. The plaintiffs alleged that, in fact, the fisheries from whom ConAgra sources its fish use "harmful fishing techniques that injure marine wildlife and the marine ecosystem." The plaintiffs were particularly concerned about the fact that the fish is caught using pelagic midwater trawls, which are giant nets which each "indiscriminately captures everything within its path, including trapping and killing endangered species like steller sea lions, albatross, and snow crabs." According to the plaintiff, among other things, this fishing technique also kills a significant number of juvenile pollock, which "prevents the establishment of a healthy pollock population." The plaintiffs argued that the certification (and the company's other claims) falsely communicated that the fish was sourced in a way that "would not harm the marine ecosystem and promote marine health."
Although the plaintiffs asserted claims under various state laws, the core issue was, ultimately, whether ConAgra's packaging was likely to be misleading to a reasonable consumer. Under the "reasonable consumer" standard, the plaintiffs much show that there is "a probability that a significant portion of the general consuming public or of targeted consumers, acting reasonably in the circumstances, could be misled."
First, the court addressed the plaintiffs' argument that ConAgra's use of the MSC certification is misleading because the organization is certifying fisheries as sustainable "even though they practice unsustainable and environmentally detrimental fishing practices, like using the pelagic trawl." The court rejected this argument, saying that it didn't think the claim was misleading. Here, the court differentiated between the company making its own "sustainable" claim versus just promoting a certification it had received. The court explains, "ConAgra is not advertising that their products are sustainable, but that their products are certified as sustainable by MSC. This is a distinction with a difference."
Next, the court addressed ConAgra's claim that its product is "Good for the Environment." ConAgra argued that the claim was puffery – "an exaggeration or overstatement expressed in broad, vague, and commendatory language." In order to determine whether a statement is puffery, the court considered two factors. First, does the statement communicate objective claims that describe specific product characteristics that are capable of testing? And, second, would a reasonable consumer rely on the statement when making a purchasing decision? When looking at the statement in context, the court didn't think that – as a matter of law – it was necessarily puffery. In light of the fact that the packaging made other environmental claims, the court determined that it was reasonable for consumers to "infer that the fish is sourced in a manner that is not harmful to the environment." While the court acknowledged that "Good for the Environment" is a broad statement, "the question of whether a fish is sourced in a manner that benefits, or at least does not harm, the environment can be evaluated and measured."
Interestingly, the court looked to the FTC's Guides for the Use of Environmental Marketing Claims as support for its holding that "Good for the Environment" may communicate specific product claims requiring substantiation. The court explained that general environmental benefit claims – like "Good for the Environment" – "likely convey that the product . . . has specific and far-reaching environmental benefits and may convey that the item . . . has no negative environmental impact."
The court seemed to overlook, however, what the FTC's expectations are when an advertiser promotes a certification. The Green Guides explain that, "Third-party certification does not eliminate a marketer's obligation that it has substantiation for all claims reasonably communicated by the certification." In other words, the FTC's position is that, even though an advertiser has been certified, it doesn't eliminate the advertiser's obligation to ensure that both its express and implied claims have been properly substantiated. While the court believes that claiming to be "certified sustainable" versus claiming to be "sustainable" is a "distinction with a difference," I think it's highly likely that the FTC would say that it's not a distinction at all (or not much of one, anyway).
While only time will tell whether ConAgra's fishing practices are sustainable, I'll tell you what's not sustainable. If we're looking for companies to play a meaningful role in the fight against global warming – and not to engage in greenhushing – they're going to need clearer and more consistent guidance about how they can advertise what they're doing.
Bohen v. ConAgra Brands, No. 23 C 129a (E.D. Ill. March 25, 2024).
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