From time to time, I would like to use this space to talk about a particular case that is either, in my view, particularly important, or particularly interesting, or particularly entertaining. Every lawsuit is, after all, a story, but often the story is difficult to glean from the legal opinion. This week, I want to go into a case from back in 2013. The case itself didn’t go very far, but, in my view, made a big difference in getting people to think about consumer protection law in advancing animal interests. As always, my ruminations definitely don’t constitute legal advice.
***
Ella Nemcova has an entrepreneurial spirit. And a good deal of courage. And a truly amazing head of red hair. She also really loves animals and is a superb cook. Thus, Faux Gras was born.
Made in Brooklyn, the plant-based delicacy was designed to satisfy folks who love a nice chopped liver. And, hopefully, would also satisfy some of those who had once or twice tasted, or just always wanted to try, foie gras—the storied delicacy celebrated in Parisian shops, especially at Christmas—that gave Faux Gras its name. (I actually tried “the real thing” once, long before I woke up about animals. Honestly, I do not recall being impressed.)
Faux Gras was made in the factory used by Nemcova’s company, Regal Vegan, out of lentils, onions, walnuts, and various flavorings. It was, I can assure you, delicious.
Much of the foie gras sold in the US was “made” not too far away from Nemcova’s Brooklyn operation, in New York’s Catskill Mountains, by a company known as Hudson Valley Foie Gras (which was actually not located in the somewhat posh valley but right next door, deep in the largely impoverished Catskill Mountains). And, in fact, while Nemcova’s company, Regal Vegan, has since disappeared, Hudson Valley Foie Gras is still there as of this writing.
The problem with foie gras
Foie gras had been a particular target of the animal rights movement for a number of reasons. For one thing, hardly anyone in the US eats it, and it’s also very expensive, so it doesn’t have that many fans — though those it has are ardent. More importantly, its production involves a particularly ugly practice, involving a process called “gavage,” which consists of force-feeding ducks or geese with a tube that inserts too much grain into their stomachs, more than they can naturally digest, so that they gradually develop what would ordinarily be considered a diseased liver.
Plus, foie gras production is not really capable of being done differently so it seems impossible to claim you are making a “humane” foie gras, no matter how loosely you use that word. Sure, some producers might be nicer to their ducks and geese than others, but there’s generally no way around the force-feeding, and, indeed, Hudson Valley did feed its ducks by way of gavage.
At some point, probably sick of the animal rights activists, Hudson Valley decided to label its product “The Humane Choice.” It’s unclear what got into them and why they thought this was a good idea, as they must have known there would be pushback.
One reason might have been that they were tired of seeing pictures on social media of other foie gras production in which ducks or geese were confined in tiny individual cages, side by side, unable to move, while waiting for the next time a tube would be shoved down their throats to overfill their stomachs with grain.
Hudson Valley’s ducks were not in individual tiny cages. Oh, no — they were in indoor pens, albeit crowded ones, where they could sort of move around. Of course, there was no water, other than that which was provided for them to drink, even though, as we all know, ducks are animals whose lives would normally revolve around water.
And it was crowded, and it was dark, and inevitably dirty. And, yes, the ducks probably didn’t feel well since they were developing liver disease, as every day tubes were shoved down their throats and their stomachs overfilled with grain because that’s simply how foie gras is made.
But they weren’t in those tiny cages. Someone out there was treating ducks even worse. That, perhaps, was the thought process behind the label, “The Humane Choice.” The bar was, to say the least, low.
The lawsuit
Nemcova must have found this annoying. Or, perhaps, infuriating.
It seems likely that, in her mind, the only truly humane choice was to make your pâté out of vegetables. Another person who noticed this particularly egregious label was attorney Carter Dillard, then at the Animal Legal Defense Fund (“ALDF”), the not-for-profit law firm and advocacy organization. Apparently, he believed that the word “humane” should mean something more than better-than-the-worst-possible-thing-someone-else-is-doing-to-an-animal.
So, Regal Vegan — joined by, and represented by, ALDF — sued. There is a federal law, the Lanham Act, which doesn’t have anything to do with ducks, or even with animals, but, among other things, it allows competitors to sue each other for false advertising. A consumer can’t use this statute, but, of course, Nemcova was not a consumer of foie gras. Heaven forbid!
Instead, she was pretty sure she was a competitor.
By calling her product Faux Gras, her purpose was to appeal to those who had enjoyed foie gras, or at least always planned on trying foie gras someday, and get them to try her product instead. She no doubt wanted to capture those people who might not like the way foie gras was made, or possibly couldn’t afford it, but were willing to try something sort of like it. She believed she was offering a truly humane choice.
But if Hudson Valley was able to put on their package that it was the humane choice, that was a problem. And, as far as Nemcova and Dillard were concerned, it was false advertising.
But the big question before the court on the motion to dismiss wasn’t whether it was false advertising; it was whether Nemcova was actually going to be able to get into court. Was she really a competitor? Hudson Valley apparently found ludicrous the idea that a vegetable-based spread made in Brooklyn could possibly be considered a competitor of a luxury pâté that could only be produced by the very difficult and dirty process of keeping animals for long periods of time while every day forcing food down their throats in a labor-intensive process, until their livers were adequately engorged.
Hudson Valley thus argued that just because something is a “spread” doesn’t mean it is in competition with foie gras. Is peanut butter a competitor? Is a schmear?
The court found (among a bunch of other things that were also argued) that Nemcova was, in fact, a competitor. Thus, the case could proceed. The next step, presumably, would be discovery, when lawyers give up a lot of information to each other about the facts underlying the case. Dillard was, I assume, eager to get as much information as possible from Hudson Valley about how their ducks were treated and why they thought it was OK to say that that treatment was “humane.”
However, it was not to be. As so often happens in animal law cases, once it was clear that the case was going to go forward (and discovery was going to commence), the defendants decided to settle and no longer fight it. It’s really hard to get these cases into court, so for defendants, it’s almost always a good idea to make the argument right off the bat that this particular plaintiff just isn’t allowed to sue for one reason or another. But, once it’s clear the case is going ahead and the court is actually going to be able to decide the real issue — which, here, was whether or not consumers who knew the truth would think foie gras really is a “humane” choice — it might be easiest to agree to just stop saying it is, and make the lawsuit go away.
Whatever their thought process was, that’s what they did.
Why does this matter?
While this could be seen as a relatively tiny victory — no ducks were saved, and all that happened was that Hudson Valley changed its label — the case of Faux Gras was a shot in the arm for a fairly new approach to representing animal interests in court, i.e., through consumer protection law.
Like most approaches to animal law, false advertising law is an indirect route. Consumer protection law, of which false advertising law is a subset, cannot directly change how animals are treated or even force companies to tell the truth about how animals are being treated. At most, it can only stop companies from lying.
So, how can this limited area of law change what people eat? Here’s the deal, or at least the theory of change: The public is, excruciatingly slowly, becoming more aware of the horrors of factory farming. It’s bad beyond most people’s ability to comprehend, and people don’t really want to know — so this huge, huge secret has been able to be kept. But, due to often intrepid animal rights activists, their lawyers, and a few journalists, word is getting out.
But the industry is stuck. Imagine yourself in the place of a chicken producer, small or large. If you treat your animals better, your costs will go up and no one will buy your chicken. As anyone who has a dog or cat knows, it can be quite expensive to treat animals well. Also, it’s an incredibly competitive industry so it’s really impossible to be a leader on animal welfare without running the risk of immediately going out of business.
OK, you say, but I can charge a premium for my chicken if I tell people I’m treating the chickens well. The growing number of people who understand how bad factory farming is will be willing to pay more.
But, sorry, you may still be stuck.
If you label your product “humane,” you probably can’t get away with just being a bit better, like raising them in overcrowded pens instead of cages. That’s not what people think “humane” means, and, like Hudson Valley Foie Gras, you might be opening yourself up to a lawsuit for deceptive advertising. The public tends to be very naive, and in deep denial, about the treatment of animals raised for food, and to meet public expectations of what “humane” means, you may have to make your product very expensive indeed. It might be literally impossible. In fact, this is where a lot of the industry is facing legal challenges.
So, if you can’t spend the money to treat your animals much, or at all, better, what do you do? All of these forces might create a temptation for a particular company that has made some minor improvement to make reassuring claims that might not be entirely (or even remotely) true that their products are now “humane.” If they don’t make those claims, the public’s uneasiness could, at some point, become sufficient to have an effect on purchasing decisions. And if they do make these claims, they can be sued. Rock/hard place.
Making things even worse, while they have traditionally had to compete with each other — and with other foods like lentil soup, vegetarian chili and black bean burgers (yum) — the competition is getting a whole lot stiffer. Plant-based burgers, nuggets and a million other foods are getting better and better and cheaper and cheaper. It looks like cultivated meat is probably coming to get them. Really, you could almost feel sorry for them. Well, maybe not.
dear marianne (and jasmin),
thank you for sharing, as always!
i love ella and her faux gras and i appreciate this a lot: "If you label your product 'humane,' you probably can’t get away with just being a bit better, like raising them in overcrowded pens instead of cages."
thank you!
much love
myq