Breaded fish fillets were the latest target of an ESG class action lawsuit examining sustainable certifications, traceability claims, and broad environmental benefit claims for ConAgra's fish fillets and similar seafood products. The Northern District of Illinois decided on a motion to dismiss that although "certified sustainable seafood" claims may be permissible in this case, general "good for the environment" claims require further review and so the Court partially denied ConAgra's motion to dismiss.
The fisheries from which ConAgra purchases its fish are certified by the Marine Stewardship Council (MSC) as meeting certain sustainability standards. Plaintiffs challenged the claims, "Certified Sustainable," "Certified Sustainably Sourced," "We have full traceability of all our fish," and "Good for the Environment."
The Court first looked to the claims on the front of the package that the fish are "Certified Sustainable Seafood MSC" and "Certified Sustainably Sourced." Plaintiffs argued that because ConAgra allegedly sourced the fish from fisheries using unsustainable and environmentally detrimental fishing practices, like the pelagic trawl, these claims are misleading. The Court said that whatever gripes the Plaintiff has with MSC's certification standards, the fact remains that ConAgra was certified by MSC and there is nothing false about advertising it as such. Put differently, "ConAgra is not advertising that their products are sustainable, but that their products are certified as sustainable by MSC."
The Court also considered the claim that ConAgra has full traceability of all its fish. The Court was not persuaded by the Plaintiffs' assertion that traceability and unsustainable fishing practices are so connected such that unsustainable fishing practices would preclude ConAgra's ability to trace the path of the pollock from the time of capture to the frozen food packaging. The Court concluded that Plaintiffs did not allege sufficient facts to suggest that ConAgra cannot identify the origin of the pollock or track the history of the sourcing process.
The Court was less persuaded about the veracity of the "Good for the Environment" claim. ConAgra defended its claim by saying the statement is aspirational, non-actionable puffery. And indeed, the Court noted that if it were the only statement on the package, a reasonable consumer may believe it to be. But, as advertisers are well-aware, "context matters."
Because the package displays the MSC certification indicating that the fish is "Certifiably Sustainably Sourced," a reasonable consumer reading that the product is "Good for the Environment," can infer that the fish is sourced in a manner that is not harmful to the environment. Moreover, the claim contains no aspirational language like "promotes," "aims," "or supports," so a reasonable consumer would not take the claim as a mere goal to be sustainable. The Judge said that "because 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," and because the complaint alleged that the products are not in fact sustainable, the claim would be allowed to proceed.
ESG challenges are coming from all angles and consumer plaintiffs are eager to dispel inaccuracies about sustainable practices, even those that rely on technical fishing practices occurring outside of the U.S.. Marketers should carefully craft ESG claims to ensure they are not overstating the benefits. And, when reputable third party certifications may be available, marketers should take advantage of them as they help provide credibility and validation, which ultimately may insulate some of the more technical green claims from legal scrutiny.
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