A look at “greenwashing”

By Leisa Boley-Hellwarth

Greenwashing occurs when a company misrepresents its sustainability or eco-friendly policies. Consumer activists are filing legal actions, greenwashing litigation, against the company. These lawsuits often involve allegations based on state and federal claims of unfair and deceptive trade practices, fraud and false advertising.

There is a federal case pending in Texas, Usler v. Vital Farms, Inc., that illustrates greenwashing litigation in agriculture. Nicholas A. Ulser is the lead plaintiff, a resident of Michigan, and a consumer. In the 40-page complaint, filed on May 20, 2021, Ulser states that he purchased Vital eggs on a regular basis because he believed Vital employed unique humane and ethical farming practices. Ulser and other named plaintiffs are represented by an animal rights organization and several civil litigation firms.

Vital Farms, Inc. is a Delaware corporation with its principal place of business in Austin, Texas. The company’s website, www.vitalfarms.com, describes how Vital Farms began “with a husband and wife, 20 Rhode Island Reds, an Austin pasture and a commitment to animal welfare. Matt O’Hayer aspired to produce ethical food and a sustainable business. Instead, they built a transformational one. Today Vital Farms partners with over 300 small family farms. Our hens are humanely treated, our eggs are pasture-raised, and we continue to elevate our (and the industry’s) standards, continuing Matt’s commitment to conscious capitalism.” This is not the website of a company you would anticipate PETA suing.

In the well-drafted complaint, the plaintiffs attacked statements on Vital Farm’s egg cartons that their operations are “ethical” and “certified humane,” their hens are “pasture-raised,” and their “mission is the humane treatment of farm animals.” Plaintiffs argue these statements were false, and when viewed in the context of the pictures on the egg cartons, marketing statements on social media, and statements in its SEC filings, tricked consumers into paying premium prices for eggs that they believed were ethically sourced.

Vital Farms moved to dismiss the case. It argued that its use of the terms “certified humane” and “pasture-raised” was truthful because the organization Humane Farm Animal Care (HFAC) certified its operations met HFAC’s definitions of those terms. The Court rejected this argument, holding that the terms could still mislead consumers because HFAC’s definitions were distinct from the plain meaning of the terms as understood by consumers. Moreover, the Court was unmoved by the egg cartons’ inclusion of the HFAC web address, where consumers could find the definition of the terms.

Vital Farms also argued that its statements about its mission and description of its practices as “ethical” could not support plaintiffs’ claims because they were subjective opinions, which were aspirational in nature and could not be disproved. The Court rejected this argument, citing prior greenwashing cases holding that aspirational statements can still be misleading if using terms that are susceptible to definition, such as “humane.”

The complaint specifically details the following alleged abuses by Vital Egg. Through its farmer network, Vital Farms: (a) obtains hens from hatcheries that kill all male chicks at birth through shockingly cruel methods; (b) removes or permits the removal of the tips of hens’ highly sensitive beaks; (c) confines hens in conditions that cause them to spend most of their time indoors, rather than on a ”pasture”; (d) cultivates hens to lay far more eggs than they would naturally, leading to painful health issues such as bone density loss (osteoporosis); and (e) when hens stop laying shelf-stable eggs efficiently enough — once those hens have lived around 15% to 20% of their natural life spans — sells those adolescent hens to pet food companies, which kill them using unquestionably inhumane industrial slaughter methods.

Vital Farms denies any abuse and is rigorously defending their actions.

Questions of fact are for the jury to decide. And that appears to be where this greenwashing case is headed. On a less litigious note, I wish you a fabulous 2023!

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