We're well into November – and Thanksgiving is less than two weeks away. It's a perfect time, then, to talk about turkey advertising.

A few years ago, a consumer went to Whole Foods to purchase her Thanksgiving turkey. She picked out a turkey from Diestel Turkey Ranch that, according to packaging, was "thoughtfully-raised" on a "small, family-run ranch." The packaging also had a sticker on it from the Global Animal Partnership that indicated that it had a "2" rating. The consumer said that, when deciding whether to purchase the turkey, she relied on these statements, as well as others made by Whole Foods regarding the animal welfare standards observed by Diestel Turkey Ranch. The plaintiff alleged, however, that these statements were false and misleading because the company's turkeys were not, in fact, raised in a humane manner.

The consumer also pointed to other allegedly false and misleading statements that Diestel Turkey Ranch made in advertising about its turkeys, which she hadn't relied on when deciding whether to pick out her Thanksgiving turkey that day. These included statements such as, that the turkeys were "slow-grown," that they are grown on a "sustainable ranch," that they are "locally raised in Sonora, CA," and that they are "range grown, never caged."

The consumer sued, alleging false advertising and other claims under New Mexico law, and Diestel Turkey Ranch moved to dismiss.

The Packaging

The court dismissed the plaintiff's claims that were based on statements that the company made on its packaging, holding that they were preempted by the Poultry Products Inspection Act.

The court allowed the plaintiff's claims that were based on the Global Animal Partnership rating to continue, however, finding that Diestel Turkey Ranch hadn't argued that the sticker itself had been approved by the Food Safety and Inspection Service.

While it's too early in the case to know whether the claim, based on the third party certification, has any merit, it is an important reminder that advertisers generally have an obligation to ensure that their product claims are properly substantiated, regardless of what third party certifications they obtain.

The Advertising

Even though the consumer hadn't relied on the statements that Diestel Turkey Ranch had made in its advertising when making her purchasing decision, the court considered those statements as well, since New Mexico provides a cause of action for false advertising, even if the plaintiff wasn't injured by the statements that were made. The court found that consumers may be deceived by claims such as "slow grown," "thoughtfully raised," or "locally raised in Sonora, Ca" because "consumers would lack any means to independently verify those claims." (Apparently, according to the consumer's allegations, less than 1% of the company's turkeys are raised at its ranch in Sonora.)

At this stage of the case, the court wasn't willing to hold that any of these statements were puffery. Noting that puffery is defined as "those vague generalities that no reasonable person would rely on assertions of particular facts," the court held that these statements were sufficiently fact-bound to meet the state's pleading requirements.

Certainly a claim about the origin of a product – such as "locally raised in Sonora, Ca" – is an advertising claim that requires substantiation. And, this case is a good reminder that, if you're going to make an absolute statement like this, you'd better be able to back up that the statement actually applies to the products you're selling (and not to just some small subset of them). It seems pretty likely, however, that the statement "thoughtfully raised" will ultimately be determined to be puffery. While the court may have given the plaintiff a lot of leeway here, I think you'd find other courts being more willing to hold at the motion to dismiss stage that statements like "thoughtfully raised" are puffery.

Thanksgiving!

I'm not only a big fan of Thanksgiving (and turkey!), but of false advertising cases related to Thanksgiving. If you are too, you can also check out a great case about the King's Hawaiian Thanksgiving Day parade float.

Have a great Thanksgiving!

Wetzel v. Diestel Turkey Ranch, 2023 WL 6391677 (D. N.M. 2023).

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