Editor’s note: Each Spring, attorneys Bill Marler and Denis Stearns teach a Food Safety Litigation course in the LL.M. Program in Agricultural and Food Law at the University of Arkansas School of Law. This specialized program for attorneys brings together those who are interested in our food system, from farm to table. As a final assignment, students are asked to write an op-ed or essay on food safety, with the best to be selected for publication in Food Safety News. The following is one of the essays for 2021.

Opinion

By Amy Joy Allen

Climate change is no longer something that will happen in the future – it’s happening now. Generations throughout the world are urging governments to protect not only their citizens, but the citizens of the world. As Bill Gates recently said, we need “unprecedented [global] cooperation” immediately to deal with climate change. In theory, governments would ensure environmentally safe and sustainable practices in their own territory, and there would be global cooperation in this effort. This requires that corporations create products that are sustainable, and that consumers purchase those sustainably produced products. 

In the U.S., consumers are becoming pressured into purchasing sustainable products. Generally, bans on products affect the consumer and consumer habits, like plastic bag bans, which require consumers to use reusable bags, and give stores the reduced expense of purchasing plastic bags. Even though the underlying goal of those bans are to decrease plastic pollution, which is necessary, corporations are not forced to change. 

Instead of the government, on any level, promulgating bans on products or production practices that are known to significantly impact climate change, the burden is placed on the consumer. There is consumer demand to find products that encourage sustainability, but the ability for consumers to find sustainable products is limited. Consumers are required to gather large amounts information about products and how the product was produced to understand whether a product is sustainable. Often, that information is either impossible to find, or includes complex verbiage that require expensive research. Consumers are left with limited information. So, who do consumers trust do get information from about the food they purchase? The food product’s label created by the corporation that produce the item. 

As a consumer, it is easy to believe that the government, as some capacity, is regulating the food system to ensure safe food and that the information on the food is true and accurate. Several major food companies are now advertising that they are focused on improving the environment and ensuring sustainability practices. One of those companies is Smithfield, one of the largest pork producers and biggest water polluters in the U.S. To change consumer perception, Smithfield claims to be “stewards of the environment.” The corporation makes affirmative statements that they have the “goals of reducing natural resource damage and ensuring 100% compliance, 100% of the time” in various forms of advertisements. Smithfield goes on to say that they are working on those goals by “finding innovative solutions to optimize [their] supply chain, reduce waste and improve [their] energy and water efficiency.”  At face value, these statements sound great for consumers who are looking for products that promote sustainable practices. However, a deeper look into the statement make consumers wonder whether these statements are just a marketing ploy to sell more product. 

A large part of the issue is that Smithfield has a history of causing massive pollution, largely through pink lagoons that house hog feces that repetitively overflow into fresh water sources, often drinking water. These lagoons are full of bacteria and diseases spread by feces. For decades, Smithfield has wined that the technology to create better waste management is too expensive, while the local communities, who are mostly not white people, suffer from chronic diseases linked to the facilities. These communities are often left without legal recourse as Smithfield relies on protection from local ag-gag laws and exceptions in federal statutes. 

How can Smithfield cause massive pollution and environmental harm to the local communities, and be allowed to make statements about being “stewards of the environment”? The answer is that there are issues of federal oversight and little action for consumers to take. Even though there are several federal statutes that give government agencies the power to regulate certain activities, there are gaps and limits the agencies’ power to regulate those activities. Federal agencies rely on several statutes for legal authority to regulate specific issues. Administrative law requires that statutes give agencies the authority to regulate certain issues under certain legal authority, and without that legal direction, the agency cannot regulate the issue.

For example, food labels are regulated under the Fair Packaging and Labeling Act (FPLA), which authorizes the Federal Trade Commission (FTC) to regulate “the truth or falsity of all advertising” on food and the Food and Drug Agency (FDA) to prevent misbranding. Through the FPLA and other federal statutes, the FDA has limited power to regulate the required information on food labels, like the standard of identity of a food product and the nutrition fact panel, but the FDA has no power to regulate any advertisements on packages. 

This means that the FTC is the only federal agency to regulate “false advertising” on the labels, like Smithfield’s misleading sustainability statements. However, the FTC has limited power to regulate the label, unless the statement is blatantly false or misleading. The statutes that the FTC rely on for authority, like the Langham Act, generally focus on competitive prices, so companies must show that they have lost profits from the false advertisements on a competitors label. The fundamental aspect of the law to protect consumers from misrepresentations in advertising on food focuses on profit, not the safety of the consumer. This leaves consumers with little to no legal action against companies for deceptive practices, unless the consumer is injured by a defect in the product or is product causes the consumer harm. 

Not only are consumers at a disadvantage because they cannot sue companies for misleading advertisements, companies are also given an added layer of protection from consumers because they have no legal recourse. Corporation have the power to make customers vulnerable to deceptive marketing tactics and naively hopeful for government oversight. The FTC rarely files suits about corporate greenwashing, which “is the process of conveying false impressions or providing misleading information about how a corporation products are more environmentally sound”. As more and more consumers desire sustainable products, corporations have larger incentives to market toward those consumer desires. 

Recently, the FTC filed a greenwashing complaint against Smithfield about false claims on its products that state the corporation implemented sustainable growing practices to protect the environment. The corporation continually makes affirmative sustainable statements, even though it received 66 violations in 2019 due to its production practices and massive water pollution that violates the Clean Water Act. The FTC said that consumers rely on statements about product practices, and Smithfield was preying on consumers who purchase product based on the sustainability statements made by the corporation. Maybe it’s a step in the right direction for consumers, but the fact that Smithfield had so many environmental violations before the FTC stepped in highlights the leeway companies are given. 

 There are other pending cases against Smithfield about its misrepresentations on labels. The corporation is fighting another legal challenge about whether its production practices lead to an increase in consumers’ risk for a food born illnesses. In May 2020, the Organic Consumer Association (OCA) filed a complaint against Smithfield in D.C. Superior Court. The OCA’s complaint alleged that Smithfield plants were more likely to produce products that have salmonella than other similarly sized facilities. The complaint continues to allege that Smithfield is violating the D.C. Consumer Protection Procedure Act by stating its products are the “safest” for consumers. In December 2020, the court denied Smithfield’s motion to dismiss the claim. This at least allows the court to inspect whether consumers have been misled, but without a federal statute, consumers on a national level may still have misleading advertisements. 

Even with pending litigation, Smithfield and other corporation are given a free pass to use marketing tactics that say these companies are working to improve the environment, but the production practices that the corporation has does nothing to enhance sustainability. The tactics just sell more food. Consumers are continually burdened to deciphering whether foods are sustainable, and consumers cannot trust that statements are truthful. Unless the FTC is able to file additional complaints against companies, which is unlikely, customers will continue to fall victim to corporate marketing tactics, and pay higher price points for food products that appear to be sustainable. 

There is a bit of hope. Beyond the recent complaints and civil cases, there are a growing number of projects to protect consumers. There are efforts to create new declarative statements, like the Clean Label Project that aim to protect consumers from greenwashing. For instance, one of the label’s is called the “Purity Award,” which “evaluates products for substances that would never be found on a product label.” Other labels through this project ensure the consumer knows that the product is not harmful. However, this perpetuates the problem because third party organizations are giving consumers the information they expect from corporations. 

The burden should not fall solely on the consumer. Corporations should not be allowed to make sustainable statements without data that proves production practices are sustainable. Consumers deserve transparency from corporations, and corporations should be required to show consumers their sustainable practices, without the protection of ag-gag laws. The moral requirement of corporations, who continue to pollute the environment, is firmly rooted in the necessity of sustainable practices for humanity’s long-term future. Consumers cannot and should not be the ones to take on the majority of the task. Corporations need to put their money whether their advertising are and create actual sustainable growing practices. 

About the author: Amy Joy Allen is an LL.M candidate at the University of Arkansas School of Law and lives in New York. Amy earned her J.D. with an advanced certificate in environmental law at Elisabeth Haub School of Law at Pace University, and her B.A. in Psychology and Literature from Eugene Lang the New School for Liberal Arts. Amy has interned with Practical Law, worked as a student attorney at the John Jay Food and Beverage Clinic, and externed at Walmart. Amy is actively seeking opportunities.

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