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Lawsuit targets Trader Joe’s for ‘deceptive’ imagery on cage-free eggs

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The imagery retailers use on packaging of cage-free eggs has become a target for lawsuits, as Trader Joe’s is the latest company to be sued for using pictures on packaging that allegedly misrepresent birds’ living conditions and mislead consumers to believe the cage-free eggs come from chickens free to roam outdoors.

The latest complaint comes from the Animal Legal Defense Fund (ALDF), which on March 15 filed a lawsuit, claiming that the Monrovia, Calif.-based grocer Trader Joe’s is trying to capitalize on consumers’ confusion over the real meaning of cage-free eggs.

The lawsuit was filed in the Superior Court of the State of California for the County of Alameda on behalf of Carolyn Claybaugh, a Danville, Calif. resident and Trader Joe’s shopper. The complaint states the company’s images of hens foraging outside, “in green, wide-open pastures,” is a “sham” and is meant to deceive shoppers into thinking the eggs come from chickens that are also pasture-raised, when in fact, those hens are still confined in indoor facilities and never go outside.

“There can be only one reason Trader Joe’s uses false representations of hens foraging outdoors on its Cage Free egg cartons: To trick consumers into believing that Trader Joe’s use of the term ‘cage-free’ is synonymous with hens humanely living outdoors,” ALDF states in the complaint.

“While the hens who lay Trader Joe’s Cage Free eggs are not confined to battery cages, they also never see the sunshine, grass, and natural living conditions depicted on Trader Joe’s Cage Free egg cartons. Instead … the hens who lay Trader Joe’s Cage Free eggs are never allowed to leave the indoor confines of industrial hen houses, and are never given access to grass, much less expansive pasture, upon which to roam, forage, and engage in other natural behaviors.”

The complaint alleges that the marketing tactic employed by Trader Joe’s violates a number of California consumer protection laws, including the Unfair Competition Law, False Advertising Law, and Consumer Legal Remedies Act.

According to Tyler Lobdell, a food law fellow at ALDF, the complaint is similar to a class action lawsuit that was filed against Walmart in January that also alleged the retailer used misleading pictures on the packaging of its organic cage-free Marketside eggs.

“There can be only one reason Trader Joe’s uses false representations of hens foraging outdoors on its Cage Free egg cartons: To trick consumers into believing that Trader Joe’s use of the term ‘cage-free’ is synonymous with hens humanely living outdoors.” - Animal Legal Defense Fund

However, unlike in the Walmart lawsuit, Claybaugh and ALDF are not asking the company to pay damages, Lobdell explained. Instead, the group just want the courts to force Trader Joe’s to stop using the deceptive images.

“What we are asking for, is an injunction to bar Trader Joe’s from using these misleading packages,” Lobdell told IEG Policy on Monday (March 19). “It just feeds consumer confusion.”

Labeling terms not codified

Part of the problem, according to Lobdell, is a widespread confusion among consumers over the meaning of terms such as “cage-free” versus “free range” or “pasture-raised” chickens.

“These are not codified terms,” Lobdell noted.

USDA has a voluntary grading and certification process for cage-free eggs that requires producers to provide hens with unlimited access to food and water and ensure that the birds are free to roam within their indoor facility.

However, the USDA certification does not include a requirement for chickens to be allowed to go outdoors, which is why cage-free eggs can still come from facilities that ALDF views as intensive confinement housing, Lobdell explained.

Based on the way industry typically uses the terms, free-range on the other hand, typically suggests that the birds go outdoors.

The golden standard that is starting to emerge for the industry is what is often referred to as “pasture-raised” chickens, a term that usually means that each bird is given at least 108 square feet of outdoor space, Lobdell explained.

The recently withdrawn Organic Livestock and Poultry Practices rule may have resolved some of the confusion, as it addressed four areas of organic livestock and poultry practices, including living conditions.

The controversial rule, which enjoyed support among organic producers and was opposed by mainstream meat and poultry producers, was developed to refine and clarify a series of organic animal welfare recommendations incorporated into the Organic Foods Production Act of 1990.

An especially controversial provision of the OLPP rule would have banned the use of “porches” in organic poultry production, and would have required producers to give their poultry access to the outdoors.

However, USDA’s Agricultural Marketing Service (AMS) last week announced it was withdrawing the rule, because the agency did not have the statutory authority to impose the rule’s animal welfare provisions.

ALDF is currently not focused on getting USDA to provide a definition for these terms, though such a change could bring clarity into the marketplace, Lobdell noted.

The group is optimistic that the existing case law would support the complaint against Trader Joe’s and lead the company to stop using the deceptive imagery, he said.  “Our argument will be that a picture is worth a thousand words,” he said.

Trader Joe’s, which has more than 500 stores nationwide, was one of the first grocery stores in the country to begin selling cage free eggs about a decade ago. And in 2016, the grocery chain made a commitment to sell only cage-free eggs by 2025. According to the company’s original announcement, stores in California, Oregon, Washington, Arizona, New Mexico, and Colorado were even expected to make that target as early as 2020.

Trader Joe’s did not immediately return calls for comment on Monday.

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