A California federal court has denied a motion to dismiss a lawsuit alleging that Sanderson Farms Inc. misleads consumers about the presence of antibiotics in its chickens. Friends of the Earth v. Sanderson Farms Inc., No. 17-3592 (N.D. Cal., entered December 3, 2018). The plaintiffs—several advocacy groups—assert that Sanderson’s marketing misleads consumers into believing that its chickens are raised without antibiotics, while Sanderson argues that its labeling, advertisements and website communicate to consumers that the chicken products they purchase do not contain antibiotics.

“Sanderson argues its infographic on its ‘100% Natural’ webpage contains only true statements: it shows what ingredients are not added to the chicken and says nothing about antibiotic use or nonuse,” the court stated. “Defendant appears to make an expressio unius argument: that because antibiotics are not included in the list of excluded artificial ingredients, a reasonable consumer could not conclude that antibiotics are also excluded. As Plaintiffs correctly point out, however, the fact that the infographic contains true statements regarding the nonuse of hormones, steroids, seaweed, etc., does not provide sufficient context for a reasonable consumer to conclude that this chicken product, which is advertised as ‘100% Natural,’ has not been treated with antibiotics as part of the production process. A reasonable consumer, in light of Sanderson’s ‘100% Natural’ slogan, could plausibly believe that the infographic’s ‘no additives or artificial ingredients’ statement means no synthetic pharmaceuticals. Sanderson does not include a disclosure on the webpage stating unequivocally that antibiotics are used in its production process, and the infographic’s silence on the issue is not a disclosure. Sanderson is allegedly making an affirmative representation (‘100% Natural,’ ‘no additives or artificial ingredients’) that is contrary to the undisclosed characteristic (chicken raised with antibiotics before point of sale).”

The court was further unpersuaded by Sanderson’s argument that its Frequently Asked Questions page discloses the use of antibiotics: “Review, to the contrary, is limited to the four corners of a specific webpage at issue. No authority suggests a reasonable consumer is expected to search a company’s entire website (or certainly all of a company’s statements across all forms of advertisements) to find all possible disclaimers.” The court also dismissed Sanderson’s arguments about its careful wording in a series of commercials. “A lawyer may well catch this turn of phrase, but the reasonable consumer standard does not demand that consumers interpret advertisements the same way a judge interprets statutes,” the court noted. Finding none of Sanderson’s arguments persuasive, the court denied the motion to dismiss.

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For decades, manufacturers, distributors and retailers at every link in the food chain have come to Shook, Hardy & Bacon to partner with a legal team that understands the issues they face in today's evolving food production industry. Shook attorneys work with some of the world's largest food, beverage and agribusiness companies to establish preventative measures, conduct internal audits, develop public relations strategies, and advance tort reform initiatives.

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