Christopher A. Cole is a partner in the intellectual property department and chair of the advertising, marketing and promotions practice at Katten Muchin Rosenman, a Chicago, Illinois, U.S.A.-based law firm.
Fisheries and aquaculture industries are highly complex and more dependent on climatic, anthropogenic, and political factors than many other agricultural enterprises. Fisheries managers have to contend with complicating factors such as migratory species, competing territorial claims, criminal activities such as misreporting or underreporting of catch, and of course the uncertainties inherent in estimating the sizes of fish populations that are invisible from the surface. Aquaculture, once thought of as a “solution” to the vagaries of wild catch, is also under attack. Activists variously contend it can be dirty, chemical or drug-intensive, and even inhumane. Yet, consumers are being advised by health experts to eat less red meat and more fish – which by and large Americans are doing. Pressure is building on all sides.
Food marketers have jumped headlong into the ESG craze, with retailers pushing suppliers to provide only “sustainable” fish. Some retailers even promise to carry only sustainable seafood. The question arises, naturally, what does “sustainable” mean? Activists and plaintiffs’ lawyers have been filing lawsuits seeking to answer this question in a way that forces changes to industry practices.
For example, two lawsuits recently challenged Aldi’s claim for farmed salmon it sold that it is “Simple, Sustainable, Seafood.” In its motion to dismiss, the retailer pointed to the Global Seafood Alliance’s Best Aquaculture Practices (BAP) certification as evidence its salmon was, indeed, certified as sustainable by expert third party. The courts, however, denied Aldi’s motion to dismiss, finding that the plaintiffs had plausibly alleged consumer confusion, notwithstanding the BAP certifications.
A separate lawsuit against Gorton’s, again by the same lawyers, alleged the fish stick maker’s farm-raised tilapia is not sustainable as claimed because “products are made from tilapia … industrially farmed using unsustainable practices that are environmentally destructive and inhumane.” Gorton’s, with the support of the Global Seafood Alliance and the New England Aquarium, unsuccessfully moved to dismiss. The suit has moved toward a settlement.
Another case against Bumble Bee Foods filed in the U.S. District of Columbia Superior Court alleges that the defendant’s canned tuna cannot be called “sustainable” because of forced labor practices it claims it has observed within fishing fleets used for tuna.
So, what does – what should – “sustainable” mean in the context of farmed or wild-caught seafood? If a supplier cannot rely on an industry consensus certification such as BAP, Marine Stewardship Council, or any number of other reputable certifiers, can any company ever safely make the claim without fear of litigation?
The Magnuson-Stevens Act, as amended by the Sustainable Fisheries Act of 1996 refers to “optimum sustainable yield,” which is the maximum amount of take that can be sustained without depleting the stock irrevocably. “The terms ‘overfishing’ and ‘overfished’ mean a rate or level of fishing mortality that jeopardizes the capacity of a fishery to produce the maximum sustainable yield on a continuing basis.” Indeed, federal fisheries managers are tasked with managing wild stocks to prevent overfishing while achieving, on a continuing basis, the optimum sustainable yield from each fishery. By definition, therefore, all fisheries are managed under U.S. law to be “sustainable.”
Despite this clear legal mandate, private plaintiffs have tried to import a variety of different concepts into the term “sustainable.” These can include labor practices, “humane” treatment of the fish, and elimination of chemical inputs such as antibiotics. When tasked with providing evidence that ordinary consumers agree with such ideas, plaintiffs typically provide biased multiple choice consumer surveys that are unpersuasive and inadmissible. Nevertheless, the gambit for most private plaintiffs is to survive a motion to dismiss and get to discovery, when their leverage for settlement increases. Few are truly prepared to litigate, but then again, most defendants wish to avoid this, too.
In its most recent revision of the “Green Guides,” which covers the advertising of environmental claims in the United States, the Federal Trade Commission initially sought to take on a definition of “sustainability.” It surveyed the term with consumers, however, and found that there was insufficient evidence from which it could issue recommendations to industry. (Interestingly, EPA submitted comments to the FTC suggesting it caution marketers “not to use the term ‘sustainable’ as a marketing claim for products or services. It explained that ‘sustainable’ refers to a “characteristic of systems … the quality of being able to continue in their present state and mode of operation indefinitely.’”) The FTC declined to adopt the EPA’s definition, however. Consumers in the survey equated the term with concepts such as “long-lasting” and “durable,” and not necessarily with any highbrow concept of integrated plant and animal management practices. The Green Guides are expected to be revised at some point in 2023, and one can expect that the FTC will take a hard look at the term in the update.
Into the present chasm have stepped marketers who recognize that consumers may not be able to define sustainability, but like the term and feel good about products advertised as sustainable. Not only do they like it, but they equate it with high quality and tend to prefer products labeled as “sustainable,” all other things being equal. Investors too have gravitated to sustainable funds, with the SEC taking note and undertaking regulatory scrutiny.
With all of this turmoil, what is a marketer to do? Things are in flux, but here are my best recommendations:
- If the marketing team is set on using the term “sustainable,” it should consider qualifying the term as to those attributes on which the claim is based.
- Appropriate qualifications should include reliance on a reputable third-party certifier, such as BAP or MSC, with the certifier’s name and the date the product was certified listed.
- Provide an informational link or QR code on the package or point-of-purchase material. The link should point to a website that honestly explains the sustainable practices.
- As the issue of labor practices in the supply chain is still highly unsettled, consider including a certification or disclaiming this aspect.
- Pay attention to developing laws, guidance, and cases. This is a rapidly evolving area and new court opinions or regulatory guidance can have an immediate impact on the risk calculus.
Photo courtesy of Katten Muchin Rosenman
