A D.C. Superior Court has denied Smithfield Foods’ motion to dismiss a lawsuit alleging it misleads consumers by marketing its products as “safer pork.” Organic Consumers Assn. v. Smithfield Foods Inc., No. 2020 CA 2566 B (D.C. Super. Ct., entered December 14, 2020). The lawsuit, filed by the Organic Consumers Association (OCA), alleged that Smithfield “employs production practices that result in less-safe conditions, effects, and Products, including the routine preventative use of medically important antibiotics, crowded conditions, the use of potentially carcinogenic drugs, and rapid slaughter methods.”

The court disagreed with Smithfield’s argument that the marketing statements were puffery or “too general to be actionable,” finding that the statements Smithfield made about its safety were specific. Further, OCA’s “allegations about consumer understanding are plausible,” the court held, because the complaint cited sources “stating that food safety is an issue of significant concern to consumers” and studies showing “that a ‘reasonable consumer’ would expect ‘that products marketed with Smithfield’s Food Safety Representations are produced in conformance with international guidelines regarding antibiotics use, produced without the use of potentially carcinogenic drugs, have lower-than-average rates of Salmonella contamination, and are not contaminated with particularly dangerous disease strains.’”

The court also refused to strike as immaterial an allegation that Smithfield “failed to take adequate steps to protect its workers from COVID-19” because it found that the allegations were related to the unsafe practices at issue in the case.

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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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