Consumer Groups File False Advertising Suit Over ‘100% Natural’ Claim, Alleging Residues in Poultry

Continuing a trend that is certain to keep growing, three consumer groups recently filed a lawsuit against Sanderson Farms alleging false advertising for their poultry products labeled “100 percent natural.” In the suit, the Organic Consumers Association, Friends of the Earth, and the Center for Food Safety contend that test results the groups obtained through the Freedom of Information Act were positive for residues that are not natural.

The complaint contends that questionable substances appeared in tests conducted by USDA’s Food Safety and Inspection Service over a one year period from November 2015–November 2016. During this period, the complaint alleges, FSIS conducted tests of poultry at Sanderson Farms locations in Georgia, Louisiana, Mississippi, North Carolina, and Texas, and, in 33 percent of the visits, testing results were positive for residue. 
 
The complaint contends that there were 49 instances in which samples tested positive for residues that are not 100 percent natural, including pharmaceutical and pesticidal substances such as chloramphenicol, desethylene ciprofloxacin, butorphanol, melengesterol acetate, and ketamine. Relying on California’s unfair competition and false advertising laws, it contends that consumers were misled about whether the chickens were fed, injected with, or exposed to certain substances, and further contends that consumers were misled regarding the conditions in which the chickens were raised.  

National Residue Program

FSIS conducts these tests through the US National Residue Program for Meat, Poultry, and Egg Products, which is designed to identify, rank, and analyze for chemical contaminants. While it is administered by FSIS, NRP requires the cooperation and collaboration of several agencies for its design and implementation.
 
The Food and Drug Administration, under the Federal Food, Drug, and Cosmetic Act, establishes tolerance levels for veterinary drugs and action levels for food additives and environmental contaminants. The Environmental Protection Agency establishes tolerances for registered pesticides under the Federal Insecticide, Fungicide, and Rodenticide Act and the Food Quality Protection Act. 
 
A Surveillance Advisory Team consisting of subject matter experts from all relevant federal agencies convenes annually to evaluate chemical compounds for inclusion in the NRP scheduled sampling plans. FSIS then publishes the NRP Residue Sampling Plans in what is traditionally known as the Blue Book. 

More Lawsuits Likely Forthcoming

As Arent Fox wrote in May, stakeholder groups appear poised to continue using the courts and state consumer protection laws as key tools in pursuing claims against food companies based on labeling, advertising, and marketing claims. 

Contacts

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