Foie gras is produced from the livers of specially fattened ducks or geese. The delicacy is typically made by force-feeding the water fowl through a “gavage” (a long feeding tube) causing their livers to become greatly enlarged. In 2004, California enacted a law banning force-feeding of birds for the purpose of producing an enlarged liver, as well as banning the sale in California of any products resulting from force-feeding. Cal. Health & Safety Code § 225980. This law does not, however, prohibit out-of-state foie gras producers from marketing and shipping their products to California.

HVFG is the largest producer of foie gras in the United States. On its website and its Facebook page, HVFG markets its foie gras as “The Humane Choice.” Like other producers, HVFG apparently feeds its ducks with a gavage. The “humane” slogan is based on the cage-free environment in which HVFG ducks are raised and the company’s claim that its “trained caretakers spend four times as much caring [sic] for each animal as is the case in other foie gras farms.”

On November 13, 2012 the Animal Legal Defense Fund and Regal Vegan filed suit against HVFG alleging that the “humane choice” slogan is false and misleading. Regal Vegan – which produces a non-meat, spreadable product it calls “Faux Gras” – also claimed the allegedly deceptive slogan harms sales of Faux Gras. See Complaint.

HVFG moved to dismiss these claims arguing that Regal Vegan lacked standing to bring a Lanham Act claim because it was not a direct competitor in the foie gras market. Order at 9. The Court disregarded this argument, noting that a plaintiff need not be a direct competitor of the defendant to have Lanham Act Standing. Id. at 10. The Court held: “When one product is marketed to compete with another product whose advertisements may mislead consumers, then the first product’s maker may be harmed” and standing will be conferred. Id. The Court noted that in this case, the market for which the parties competed could be described as “spreadable pâtés for consumers interested in animal welfare.” Id. Accepting as true the allegation that HVFG’s ducks were not treated humanely, the Court concluded Regal Vegan had plead facts sufficient to provide Lanham Act Standing. Id.

HVFG also argued that its “humane choice” slogan was not actionable because it was not a “specific and measurable claim, capable of being proved false or of being reasonably interpreted as a statement of objective fact.” Id. Instead, HVFG characterized its slogan as a statement of opinion, i.e., puffery. Id.

The Court rejected this argument as well. While acknowledging that the “meaning and import of the word ‘humane’ are hard to pin down,” the Court noted that Congress had previously defined “humane” twice, both times in reference to the killing of animals. Id. at 11. Although neither definition was applicable in the present case, the Court found that both definitions had a theme of “pain,” i.e., that the animals be killed in a way to minimize the pain caused. Id. The Court therefore noted that “humane” is a term susceptible of definition, and therefore, a claim that a product is “the humane choice” might constitute a statement that could be proved false or “reasonably interpreted as a statement of objective fact.” Id.

While Regal Vegan’s false advertising claims again HVFG will proceed, the Court did dismiss the claims of the Animal Legal Defense Fund for lack of standing, concluding the non-profit group could not be considered business competitors. Id. at 8.

Source: Animal Legal Defense Fund et al v. HVFG, L.L.C. et al, Case No. 3:12-cv-05809-WHA (N.D. Cal.)

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This article was prepared by Kathy Grant (kgrant@fulbright.com / 210 270 7182) and Saul Perloff (sperloff@fulbright.com / 210 270 7166) of Fulbright’s False Advertising Practice.