Lawsuits target sustainability & eco-label claims by major seafood companies

Lawsuits target Mowi, Conagra, Bumble Bee, Red Lobster, Gorton's and more. Claim the industry has benefited from public misunderstanding of "sustainability."

by | February 26, 2024

A “wake-up call” to the seafood industry to change its marketing practices, say experts.

From Cliff White/SeafoodSource
February 21, 2024

[LW: All lawsuits criticize the Marine Stewardship Council (MSC) for certifying companies that use “destructive fishing methods that injure marine life and ecosystems,” and claim that paid MSC membership creates a conflict of interest.]

A series of lawsuits related to sustainability claims and eco-labels have changed the seafood industry’s approach to marketing sustainability bona fides. Lawsuits filed against MowiGorton’sALDIConagraBumble Bee Foods, and Red Lobster are either pending or have resulted in settlements.

The suits should be a wake-up call to the seafood industry that it needs to change its marketing practices, according to Arlin Wasserman – the founder and managing director of Changing Tastes, a seafood industry consultancy working at the intersection of sustainability, public health, information technology, demographics, and the changing role of the culinary professional. Wasserman, who was previously the vice president of sustainability at foodservice provider Sodexo, recently discussed how companies can adapt and modernize their marketing campaigns with SeafoodSource. 

SeafoodSource: Even though a judgment has yet to be handed down in any of these cases, none of them have been dismissed. Do you think the judges in these cases are getting it right when they accept plaintiffs’ assertions that some eco-labels and other sustainability-focused marketing constitute false advertising?

Wasserman: The verdict is not in – to say the least. But, the recent rulings that the lawsuit against Red Lobster claiming false advertising has merit and should proceed have shifted the burden of proof to the industry. From what I see, there’s a good chance at least some of the companies defending themselves are engaging in false advertising, although they may not realize what they’re doing. That’s because the burden is on companies that advertise their products to be truthful, not misleading, and, when appropriate, backed by science.

In general, many current sustainability claims don’t meet those criteria. Here’s how:

Truthful: At face value, the eco-logo implies that the standards of the certifying body are being met. If they are not fully being met, that’s misleading. The same is true if the fish or seafood being sold or consumed doesn’t meet those standards. “Mass balance” approaches where the fish labeled as eco-certified may not be the actual fish caught using these higher sustainable standards also may be viewed as less than truthful. Substitution, or “seafood fraud,” is an even more blatant example of not being truthful. The buyer simply is not getting what they paid for. 

Misleading: The term “sustainable” is generally understood by consumers, along with many chefs and food industry executives, to mean free of antibiotics, humanely raised, and more. Consumer and industry surveys conducted by Changing Tastes have repeatedly found this to be the case. The industry has benefited from this misunderstanding of the definition and has done very little to educate consumers or buyers otherwise.

The term “certified” also is commonly understood to mean a product meets specific standards, not that it will at some future date or has been swapped out for one that doesn’t. Imagine buying a hybrid car for good mileage and then finding out the manufacturer intends to build that car in future years and you’re actually driving their standard, gasoline-operated model. Again, using an eco-label on a product that doesn’t meet all standards is misleading. 

Backed by science: We know that each certification scheme is based on scientific standards that assess the health of fisheries. The same is true for Seafood Watch and the other aquarium ratings based on their scientific findings. That means these schemes should show that overfishing is not occurring and the negative impact on non-target species, including bycatch and the aquatic habitat, are less than in non-certified fisheries or have improved under the certification requirements. We often challenge these organizations to show how they’ve improved conditions on and under the water and sometimes don’t get a relevant answer. 

For all the time and money that NGOs, governments, and the industry put into these programs, there should be regular, public reporting on how they are improving ocean health and aquatic fauna populations. With that in place, the science-based improvements would be clear.

SeafoodSource: What is your reaction to the implication from Richman Law that more sustainability labeling-related lawsuits are forthcoming?

Wasserman: It’s absolutely true. There are a lot of seafood companies that are relying on third-party certifications as the basis for claiming their products are sustainable, and many large retailers and foodservice companies do the same.

“Now that the first cases have been found to have merit and have not been dismissed – which took substantial time and money on behalf of the plaintiff lawyers to prove – it’s cheaper and less risky for additional lawyers and lawsuits to file. And, once there is a ruling that finds a company guilty of false advertising, every other company that relies on the same certification will be at substantial risk of being sued. That is unless the industry starts changing its practices before the ruling occurs, and that’s both advisable and far from certain.”

arlin wasserman, changing tastes

Our industry may be “circling the wagons” or believe the ruling is unfair – which I do not – but it is now the opinion of several courts that some prominent companies have the burden of proving their practices are indeed sustainable. The first ones to face that requirement – including Nissui-owned Gorton’s and ALDI – settled and changed their advertising rather than disclose what’s really taking place.

More from Intrafish – Mowi settlement “opens the floodgates” for similar lawsuits

Mowi agrees to pay $1.3 million to settle US class action suit alleging deceptive marketing

As part of the agreement, the company will be forced to remove the terms ‘sustainable’ and ‘eco-friendly’ from some of its products sold in the United States.

By Rachel Sapin and Drew Cherry 
March 2021

Salmon farming giant Mowi has agreed to pay $1.3 million to settle a class action suit filed by a New York-based catering company alleging the company deceptively marketed its Ducktrap brand smoked salmon as “sustainable” and “eco-friendly.”

The parties reached an agreement in February, according to documents filed with a New York court on Tuesday. With funds from that $1.3 million settlement, Mowi also agreed not to oppose “Class Representative Service Awards” of $7,500 (€6,298) to Neversink General Store and up to $1,500 (€1,260) to fellow plaintiff Brenda Tomlinson to “compensate them for the actions they took in their capacities as class representatives” in the case.

Mowi also agreed to pay the settlement class attorney’s fees and costs awarded by the court up to a maximum of $360,000 (€301,000).

“After several rounds of hard-fought, arm’s-length negotiations, the Parties reached a fair, adequate, and reasonable Settlement,” details provided in court documents state.

The judge still has to approve the settlement for it to be finalized.

The lawsuit, filed with a US District Court in the Southern District of New York in November, includes allegations similar to a lawsuit filed earlier this year by a nonprofit consumer group over Mowi’s smoked salmon products sold under its Ducktrap brand.

Attorneys representing the plaintiff — a retail store, gas station and catering operation — said while they believe their client “would ultimately prevail” in a trial, the settlement was acceptable to resolve the issue.

Neversink General Store, which operates its catering business and gas station in a town of 3,400 people, alleged Mowi’s deceptive marketing practices included its Ducktrap brand not meeting the Federal Trade Commission’s (FTC) guidelines for labeling products as “sustainable” and “eco-friendly.”

The lawsuit alleged Mowi’s products are instead “sourced from salmon that are farmed using unsustainable and environmentally destructive practices.”

The suit also alleged Mowi’s Ducktrap branded products mislead consumers to believe they are made from salmon produced in Maine.

“In truth, the products are made from salmon industrially farmed outside of the United States,” the lawsuit says.

As part of the settlement, for a period of two years Mowi will be forbidden from using the terms “sustainably sourced,” “all natural” and “naturally smoked salmon from Maine” on any Ducktrap packaging.

The ruling does not prohibit Mowi from using the terms or similar terms on other products that meet the bar for use of the language.

Mowi is also being sued as part of price-fixing lawsuits in Canada and the United States and is under investigation in Europe for colluding to control prices. The US Justice Department has also opened a criminal investigation in antitrust issues involving Mowi and other leading salmon farming companies.

Mowi Group Communications Director Ola Helge Hjetland declined to comment to IntraFish on Thursday on the proposed settlement, but said the company would release details in the near future.(Copyright)

More from SeafoodSource on Conagra, 2023

Conagra Brands has filed a new brief supporting its motion to dismiss a class-action lawsuit claiming the company’s use of Marine Stewardship Council (MSC) certification for sustainability claims are “deceptive.”

The lawsuit, filed earlier this year, seeks at least USD 5 million in damages and heavily criticizes both Conagra and the MSC, claiming the sustainability certification organization “blatantly violates its own standards and puts the very ecosystem MSC feigns to protect in serious danger.” Plaintiffs in the case, Abdallah Nasser and John Bohen, claim the sustainability promises made by Conagra on its packaging using MSC certification “deceives and misleads reasonable consumers.”

Conagra filed a new brief in early October claiming the litigation was a “vehicle to litigate” the plaintiff’s issues with the MSC.

“Plaintiffs do not dispute that Conagra Brands, Inc.’s products contain certified sustainable seafood,” the new filing states. “Yet they continue attempting to transform Conagra’s limited, accurate representations – that the Marine Stewardship Council certified its fish Products as sustainably sourced – into a vehicle to litigate their quarrel with the MSC.”

The plaintiffs in the case, in defense of their opposition to Conagra’s motion to dismiss, claim that the company has “turned a blind eye” to unsustainable fishing practices in its supply chain.

The complaints also heavily criticize the Marine Stewardship Council, alleging it “blatantly violates its own standards and puts the very ecosystem MSC feigns to protect in serious danger.”

On Bumble Bee, 2023

Bumble Bee knew or should have known that “MSC hands out this certification to those who use industrial fishing methods that injure marine life as well as ocean habitats with destructive fishing. MSC also allows its members to obtain their certification with a paid membership, creating a potential conflict of interest,” the plaintiffs said.

Despite the MSC certification, Bumble Bee sources its products using fishing practices that indiscriminately harm ocean ecosystems, the complaint alleges.

The lawsuit alleges San Diego, California, U.S.A.-based Bumble Bee, which is owned by Kaohsiung, Taiwan-based FCF Co., engages in “the suffocation and crushing of dolphins caught in fishing nets that are then hauled onto fishing boats while severely injured or dead; the torturously slow death of endangered sea turtles after getting caught on large hooks meant for tuna; the trapping of whales by fishing gear, causing deep wounds and intense suffering; and the extortion of migrants working on fishing boats, who are forced to labor relentlessly for long hours with little food and minimal sleep, under the threat of being beaten or thrown overboard.”

On Red Lobster, 2023

The lawsuit alleges Red Lobster’s shrimp comes from farms in Indonesia, Vietnam, India, and China that “engage in environmentally destructive practices, poor reporting of environmental data and standards, and overuse of antibiotics.”  It noted Monterey Bay Aquarium’s Seafood Watch advises that customers seeking sustainable seafood should not choose shrimp products from Indonesia, Vietnam, India, and China.

The complaint also criticizes the restaurant chain’s lobster sourcing from the U.S. state of Maine, which it said is sourced from suppliers that use environmentally destructive practices that threaten endangered populations of North American right whales.

plaintiffs in lawsuit against red lobster

Image credit: ResearchGate

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About Laine

Laine Welch has covered the Alaska fish beat for print and radio since 1988. She also has worked “behind the counter” at retail and wholesale seafood companies in Kodiak and on Cape Cod.

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