Inside D.C.

Order in the court…

The assault on U.S. food production by activists in search of gustatory nirvana is expanding, much to the consternation of big food processors and retailers.  No longer satisfied to attack on-farm production practices and the alleged inherent inhumanity of farmers and ranchers, this new, multifront strategy seeks to drag the food retailers/processors into the courtroom, while relishing the negative publicity such action brings to the industry.

As much as I enjoyed this week’s “what-if-you-gave-a-press-conference-and-nobody-cared” scenario surrounding the Humane Society of the U.S.’s (HSUS) latest “undercover” video allegedly shot on a Kentucky pig farm,  I’ve watched the activist shift from barnyard to courtroom with interest.  Branded product producers, food processors and retailers should wake up quickly to the fact you can no longer hide behind conciliatory press releases and “clever” marketing to avoid the dreaded NGO with a pro bono lawyer.

A food industry trade magazine reported February 14, grocery giant Kroger Co. is the target of a proposed class action suit filed by DC-based Compassion over Killing (COK) in Los Angeles County Superior Court.  The proposed action alleges Kroger’s marketing of “Simple Truth” brand chicken – promoted, the plaintiff says, as raised “cage-free in a humane environment” – is deceptive, misleading and violates California consumer protection laws.  Why? Because despite the marketing claim – remember, all broiler chickens are raised cage free – Kroger’s “Simple Truth” chickens, supplied by a Perdue Farms plant in Kentucky, are treated “the same as other mass-produced birds” according to the complaint, the article says.

Keep in mind marketing claims are not the same as label claims when it comes to the fight for your food dollar.  For instance,  USDA labeling regulations generally don’t permit a company to make a humaneness or outright food safety claim on a label. You can’t label something as “raised humanely” or “more humanely” or “our guacamole/peanut butter spread won’t make you sick like the other one.”  However, marketing claims in print, on TV or on websites –  activists routinely patrol farm and food industry websites for animal welfare claims – are kind of the Wild West of advertising/marketing for just about any product out there.  HSUS, for instance, is very good at filing Federal Trade Commission (FTC) complaints against groups/companies whose standards it finds lacking and, of course, then putting out a press release.

Both animal rights groups pushing “humane” on-farm production practices and producers trying to distinguish themselves from competition have seized on USDA’s Process Verified Program (PVP) as a marketing tool.  What’s important to know about PVP, however, is that while the program is rigorous, what it boils down to is it’s a department evaluation of whether the system proposed by a company upon which claims will be made is doable within the rules of the program.

USDA evaluates the company PVP application, inspects to see if the actions folks must carry out as part of the company’s claim are real and achievable, but – and this is a BIG but – USDA PVP is essentially agnostic as the program’s necessity or merit.  USDA does NOT take a public or private position or make any value judgment on whether a PVP’s program is good or bad, better or worse, only if the program mechanics are doable and the program/claims do not break the law.

I’ve counseled company clients for years that to succumb to the notion you can appease activists with a “give-them-something-make-them-go-away” strategy is to try and manage these attacks using short-term advertising/PR think. This approach inevitably fails.

Once you’ve shown weakness, you’ve thrown chum into a tank of sharks.  The activist may rest easy, swimming around you in lazy circles after the first or second chomp, but they’ll come back and demand a bigger bite time and again; in some cases, it’s the strategic equivalent of being nibbled to death by ducks.

Consider this first COK action a wakeup call to the industry across the board, from farm to board room. This should be an alarm sounding loudly to warn you not only that these lawsuits will proliferate like rabbits across the country, but if you’re contemplating “giving them something,” it may be more than you think.


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  • So long as these “animal rights”-oriented NPOs can use the legal loopholes to get taxpayers to pay for most of their legal fees every time they sue for something that will harass animal enterprises, they will not stop. There needs to be teeth in the law to go after them (for frivolous lawsuits) that affects their “bottom line” just like everyone else. A good start is what has happened with the frivolous lawsuit by several AR organizations against Feld Entertainment (Ringling Brothers). The A$PCA has already settled for $9.2M to Feld, while the rest of the sociopathic AR groups are digging in their heels and fighting what a judge has ruled is Feld’s right to get back legal fees (and possible more) from this RICO-tainted lawsuit.

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