This piece was written for Lewis & Clark’s Emerging Topics in Animal Law course. All views expressed are those of the author.
By Sadie Jacobs
Animals living on organic and “free-range” farms often endure the same cruel treatment as those on other farms. And at the end of their lives, these animals are typically shipped on trucks to the same slaughterhouses used by massive factory farms.[1] Terms like “organic,” “natural,” “humane,” “pasture-raised,” “grass-fed,” and “free-range” are merely labels representing little more than efforts to make consumers feel better and continue purchasing products — they often mean effectively nothing for the animals involved.[2] False advertising laws exist to ensure that consumers receive the information they need to make the market choices they want, but these laws are not always effective.[3] There are several ways to challenge these laws, however, as the Federal Trade Commission, Food and Drug Administration, and U.S. Department of Agriculture (USDA) have authority to control how products are advertised and can promulgate regulations to this effect.[4]
I. Misleading Labeling
In U.S. markets today, meat and dairy items are often marked with a “humane” label. Indeed, the rise of these “humane” labels signifies that producers are recognizing consumers’ concern for the well-being of animals raised for food.[5] “Humane” is an adjective defined as: “marked by compassion, sympathy, or consideration for humans or animals.”[6] However, these food labels are confusing and can be misleading, and often do not offer healthier or more humane options.[7] Although some food label claims have definitions controlled by the government, most do not have legal definitions.[8] In addition, most label claims are “self-made” by companies merely for marketing purposes, and the accuracy of the claims are not verified.[9]
Oftentimes, humane label requirements are loosely defined and ill-regulated. Euphemisms are commonly used to obscure cruel practices. As a result, many animals raised on allegedly “humane” farms suffer from similar cruelties as animals raised on conventional farms. For example, “Certified Humane” does not allow identification methods such as ear-notching (cutting portions of a pig’s ear off) but does allow slap marking, which is the process of pressing a spiked metal plate with ink into a pig’s skin, without any anesthesia.[10] Similarly, cows on “organic” dairy farms are still forcibly impregnated and have their babies taken from them often moments after birth.[11] And “cage-free” facilities require farms to have only 1-1.5 square feet per hen in cage-free facilities.[12] Egg producers have to “demonstrate that the poultry has been allowed access to the outside” and nothing further to meet the USDA’s definition of “free range” and “free roaming.”[13] The “cage-free” egg industry generates a billion dollars annually in the U.S.; thus, there is an obvious financial incentive for companies to continue to provide such labeling.[14] Additionally, nearly two-thirds of Americans think animals deserve protection from harm in factory farms, and may be likely to believe that “cage-free” chickens are receiving better protection.[15]
II. False Advertising Laws
Today in the U.S., there are no federal laws protecting the billions of animals who suffer each day on farms destined to become food for Americans.[16] Therefore, animal advocates often turn to false advertising laws as a means of protecting these animals.
False advertising laws exist to ensure that consumers receive the information they need to make the market choices they want.[17] Consumer protection laws are put in to place to guarantee that consumers are not deceived in many ways such as by how goods function and how long they will last. Arguably, consumer protection laws also exist to ensure that consumers are not deceived when it comes to ethical choices as well.
III. Solutions
A. Federal Agencies
One strategy for tackling false advertisements is to directly confront federal agencies. Confronting federal agencies involves advocating before the advertisements are released to the general public. This requires lobbying the various agencies that control language within the advertisements. Confronting federal agencies is an effective strategy because it allows for public input, generally through public notice and comment procedures.[18]
B. Independent Review
Another method used to tackle false or misleading advertisements is through independent review. Independent review involves filing a complaint with the National Advertising Division of the Council of Better Business Bureaus.[19] This organization and its appeal body, the National Advertising Review Board, are the advertising industry’s self-regulating forums and provide for formal adjudication of false advertising claims.[20] After a complaint is submitted, a formal process begins by requiring a response from the advertiser. As always, there is an incentive for self-regulation for these companies because sellers ultimately will also hurt themselves when consumers are deceived. The main benefit of this kind of action is that anyone can bring a complaint against the advertisers. Conversely, the downside is that the general public does not always know whom to bring the claim against.
C. State Agencies
Just as federal agencies act to protect consumers from false advertising, states do as well. Every state in the union has enacted a “little FTC” act that prohibits false advertising and can empower state agencies to take action against it.[21] In general, complaints concerning false advertising are filed directly with the particular state attorney general’s office that has false advertising jurisdiction within the state.
D. Federal Court
Bringing a seller or advertiser directly to court is always an option instead of utilizing third party government agencies. This often can be challenging because of issues related to standing and a lack of traditional “injuries.”[22] Federal courts can also be a difficult remedy as they can hear only cases authorized by the Constitution or federal statute, such as cases concerning a federal question. However, one way to bring false advertising claims is under the federal Lanham Act, which “creates a federal cause of action for false advertising in interstate commerce” and provides broad remedies ranging from injunctive relief and damages to corrective advertising.[23] Unfortunately, as it stands, there is almost no jurisdiction in which a typical consumer can bring a Lanham Act claim.[24]
E. State Court
As discussed above, the “little FTC” acts at the state level help consumers bring private causes of action against companies for false advertising. Although consumers can bring claims under the FTC, they also can resort to more traditional claims such as fraud and misrepresentation, claims that cannot generally be brought in federal court. These claims, however, are more tailored to claims animal advocates wish to bring in court.[25]
F. Private Attorney General Actions
Some states have enacted legislation enabling private individuals to bring causes of action as private attorney general actions. Private attorney general actions allow members of the general public, as well as animal advocacy groups, to bring actions to “remedy illegal acts for the public good.”[26] There is a well-developed body of case law demonstrating that concerned citizens bringing these cases create “a strong incentive” for businesses to stay in line when it comes to advertisements.[27]
G. First Amendment Protections
Many companies argue that the labeling of their products is protected under the First Amendment. Indeed, the First Amendment offers food companies some freedom to label their products as they wish and challenge compelled government disclosures.[28] However, if the government can show that there exists a substantial government interest in prohibiting or requiring certain speech, and the government’s action is reasonable, then a court may find that the regulation is constitutional.
IV. Conclusion
Consumer protection laws can be an effective way to protect farmed animals. Without enforcement, however, these laws do nothing for either the consumers or the animals involved.
People want to believe that the animals being used for their products are happy and content, which suggests that a significant portion of the U.S. population not only want to support ethical practices but may also be willing to pay more for that guarantee. Companies know this, too, and eagerly “humane wash” their products to capitalize on people’s good intentions. Consequently, these industries generate billions of dollars in revenue annually.[29] Generally Without consumer protection laws to enforce false advertising and labeling, the general population will continue to support some of the cruelest factory farms with the intention of not doing so. Indeed, there are several reasons why factory farms have no windows, and one such reason is that the operators of these farms know that much of the general public does not want to see how animals are treated there.[30]
Right now, the companies operating factory farms and marketing their products know that people will pay a premium price for products from animals that are treated better, or more commonly, animals who are portrayed as receiving better treatment. If consumer protection laws were enforced properly, companies would either be forced to change either their marketing or improve the lives of animals within their care. If companies choose to change their marketing, then they will be forced to lower the price of their products or produce some other justification for the additional cost. More ideally, perhaps, the companies would just improve the lives of animals within their care, though this likely would be more expensive; then at least, the companies would be able to justify increasing their prices too.
Footnotes
[1] Animals Used for Food, PETA, https://www.peta.org/issues/animals-used-for-food/, (last visited Feb. 12, 2022).
[2] Id.
[3] Carter Dillard, False Advertising, Animals, and Ethical Consumption, 10 Animal L. 27 (2004).
[4] Id. at 28.
[5] False Advertising, Farm Sanctuary, https://www.farmsanctuary.org/issue/humane-labels/, (last visited Mar. 15, 2022).
[6] Humane, Merriam Webster Dictionary (2022).
[7] Supra note 5.
[8] A Consumer’s Guide to Food Labels and Animal Welfare, AWI, https://awionline.org/content/consumers-guide-food-labels-and-animal-welfare, (last visited Mar 18, 2022).
[9] Id.
[10] Id.
[11] Id.
[12] Id.
[13] Id.
[14] Egg Producers Shift as Public Demand for Cage Free Hens Grows, PBS, https://www.pbs.org/newshour/economy/egg-producers-shift-as-public-demand-for-cage-free-hens-grows, (last visited Mar. 20, 2022).
[15] Supra note 14.
[16] Supra note 8.
[17] Supra note 3.
[18] Id.
[19] Supra note 3.
[20] Id.
[21] Supra note 3 at 35.
[22] Id. at 37.
[23] Supra note 3.
[24] Id.
[25] Id.
[26] Id. at 42.
[27] Id.
[28] Focus on Food: Understanding Labeling and the First Amendment, The National Agricultural Law Center, https://nationalaglawcenter.org/focus-on-food-understanding-labeling-and-the-first-amendment/, (last visited Mar. 20, 2022).
[29] Supra note 14.
[30] This is often seen in the form of “ag-gag” laws, which seek to “gag” would-be whistleblowers and undercover activists by punishing them for recording footage of what happens in industrial agriculture. Fortunately, many ag-gag laws have been found unconstitutional recently. Ag-Gag Laws, ALDF, https://aldf.org/issue/ag-gag/, (last visited Mar. 20, 2022).