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May 27, 2021

Ruling for poultry company may be big win on

Court of Appeal upheld trial judge decision that the issue is preempted by federal law.

In what may be a major win for meat and poultry companies over product labeling rules, a California Court of Appeal has ruled in favor of a chicken products company in a dispute over whether the birds are treated humanely. The plaintiff, Carol Leining, sued Foster Poultry Farms Inc. because she believed the chicken she bought with the label “American Humane Certified” meant that it was treated in a humane manner. The certification means nothing, and the chickens were treated inhumanely, Leining argued. She also alleged the Foster Farms paid the American Humane Association for the certificate.

A Los Angeles County judge previously granted summary judgement in favor of Foster Farms and the American Humane Association after the defendants presented evidence that the certification was based on reasonable investigation and legitimate standards. Leining v. Foster Poultry Farms, Incl et al., BC588004 (Los Angeles Super. Ct., filed July 13, 2015). The defendants also argued that federal preemption barred the complaint since the Food Safety and Inspection Service had approved all the labels.

On Tuesday, the 2nd District Court of Appeal affirmed the lower court’s decision and agreed with Foster Farm’s preemption argument. The decision, written by Justice Laurance D. Rubin, also said that the false certification claim against the American Humane Association “is not viable in the absence of physical injury.” Carmine Zarlenga, a partner at Mayer Brown who defended Foster Poultry Farms, said in an interview Wednesday that the decision is important because it is not just an issue for Foster Poultry Farms. In California, he said, there are many ongoing lawsuits about what companies put on labels, not only for food but also on computers and cellphone packaging. “This ruling is going to provide a solid defense to poultry labeling and probably meat because although it’s not exactly the same federal statute, the wording is almost identical on meat labels, what I will call the label issue,” Zarlenga said. “That is an industrywide benefit of this opinion.”

Sheldon E. Eisenberg, partner at Sullivan & Triggs LLP, represented the plaintiff. In an interview, Eisenberg expressed his disappointment with the court’s decision. According to Eisenberg, the court never addressed the merits of the plaintiff’s claims that Foster Farms relies on false and misleading certification on their chicken. He said he believes that the court committed a significant error in finding preemption. “The Court of Appeal ignored the governing California Supreme Court authority that there is a strong presumption against federal preemption in any context, and specifically in a claim based on product labeling.” No reasonable consumer would believe that the chickens are treated humanely, Eisenberg said. The American Humane Association certification process does not consider the breeding facilities where Foster Farms get the birds they raise for production, he said. “They allow for anesthetizing, debeaking, putting plastic objects through the roosters’ noses to minimize fighting because they are in such cramped quarters, and on and on a list of horrors that go on at that breeding facility,” Eisenberg said.

But Dr. Robin R. Ganzert, president and CEO of the American Humane Association, said in an email, “This decision reaffirms the rigor of the American Humane Association Certification and our steadfast commitment to the humane treatment of animals.

February 25, 2021Daily Journal