Federal court clears up challenge to dubious environmental claims | Kelly Dry & Warren LLP

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Breaded fish fillets have become the latest target of an ESG class action lawsuit examining the sustainable certification, traceability claims and broader environmental benefit claims of seafood similar to ConAgra’s fish fillets. The Northern District of Illinois decided on a motion to dismiss, butIn this case, a “certified sustainable seafood” claim may generally be acceptable.The court partially denied ConAgra’s motion to dismiss because the “environmentally friendly” claim requires further consideration.

The fisheries from which ConAgra purchases fish are certified by the Marine Stewardship Council (MSC) as meeting certain sustainability standards. Plaintiffs object to this claim;Certified sustainable.”Certified sustainably sourced. ”We have full traceability of all fish. ”Good for the environment. ”

The court first decided that the fishSustainable Seafood MSC Certified”Certified sustainably sourced. ” The plaintiffs argued that these claims are misleading because ConAgra claims to source fish from fisheries that use unsustainable and environmentally harmful fishing methods, such as deep-sea trawling. The court stated that regardless of the complainant’s complaints about the MSC’s certification standards, the fact remains that ConAgra was certified by the MSC, and there was no falsehood in advertising it as such. . To put it another way,ConAgra does not advertise that its products are: Sustainablebut their product is certified as sustainable By MSC. ”

The court also considered ConAgra’s claim that it had full traceability of all its fish. The court found that traceability and unsustainable fishing practices go hand in hand, and that unsustainable fishing practices could impede ConAgra’s ability to trace the path of walleye from the time of capture to the packaging of frozen food. I was not satisfied with the plaintiffs’ argument that it would be a hindrance. The court concluded that the plaintiffs did not allege sufficient facts to suggest that ConAgra could not determine the origin of the pollock or trace the history of its sourcing process.

The court was not very persuaded by its veracity.Claim that it is good for the environment. ConAgra defended the statement, arguing that it was wishful thinking and an unworkable exaggeration. And in fact, the court noted that a reasonable consumer might believe it if that was the only statement on the package. But, as advertisers well know,Context matters. ”

The packaging will display the MSC certification indicating that the fish is“Certified sustainable sourcing” means that a rational consumer can“Good for the environment” means that the fish has been sourced in a way that does not harm the environment. Furthermore, this claim does not contain any aspirational language such as:promotes it”We aim toTherefore, a rational consumer would not consider this claim to be just a goal of being sustainable.the judge said:This is because the question of whether fish is sourced in a way that benefits the environment, or at least does not harm the environment, can be assessed and measured. ” And since the complaint alleges that the product is not actually sustainable, that claim will succeed. Continue.

ESG issues are coming from all angles, and consumer plaintiffs are dispelling inaccuracies about sustainable practices, even those that rely on technical fishing practices conducted outside the United States. He is very enthusiastic about this. Marketers need to carefully craft their ESG claims to avoid exaggerating the benefits. Additionally, marketers should leverage trusted third-party certifications when available, as they help provide credibility and verification. This could ultimately shield some of the more technical green claims from legal scrutiny.

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