We’ve written before about the growing trend of “ethical sourcing” or “ethical production” class actions, which challenge manufacturers’ claims (or nondisclosures) about the humane (or inhumane) way their ingredients or materials are grown, caught, or harvested.  A recent decision out of the Southern District of New York in a case involving “free range” eggs typifies this litigation trend and the concern it poses to food and beverage manufacturers.

In Mogull v. Pete and Gerry’s Organics LLC, No. 21 CV 3521, 2022 WL 602971 (S.D.N.Y. Feb. 28, 2022), Judge Briccetti denied a motion to dismiss a putative class action complaint alleging that the producer of “Nellie’s Free-Range Eggs” deceived consumers by selling eggs that were not in fact “free-range.”  The court held, inter alia, that a reasonable consumer could plausibly interpret “free-range” as a literal, actionable promise that the eggs were laid by hens that were able to move comfortably indoors and roam freely outdoors.  This decision highlights the risk manufacturers can face in making “ethical sourcing” claims like these—even when their products conform to applicable industry standards.

The Complaint and Motion to Dismiss

Nellie’s, one of the nation’s largest sellers of eggs, markets certain of its eggs as being “free-range.”  First. Am. Compl. (“FAC”) ¶ 3.  As seen below, the packaging on these cartons includes images of hens in the outdoors and states that its eggs come from “Outdoor Forage” hens.  Id. ¶ 4.

Specifically, a portion of the packaging reads:

“Most hens don’t have it as good as Nellie’s. 9 out of 10 hens in the U.S. are kept in tiny cages at giant egg factories housing millions of birds. Sadly, even “cage-free” is now
being used to describe hens that are crowded into large, stacked cages on factory farms, who never see the sun. Nellie’s small family farms are all Certified Humane Free-Range.  Our hens can peck, perch, and play on plenty of green grass.” Id. ¶ 3.