A federal judge in Massachusetts recently allowed a class action suit alleging greenwashing claims to proceed over defendant, Gorton's Inc.'s, motion to dismiss.1 Following the court's ruling, the parties agreed to settle the lawsuit. But the decision (like other recent rulings against seafood companies) further underscores the need for companies to exercise caution in the stormy seas of sustainability advertising as regulators and consumers continue to raise legal challenges to companies' climate and sustainability statements.
The lawsuit, Spindel et al. v. Gorton's Inc., was filed in April by two consumers—New York resident Jeffrey Alan Spindel and California resident Kevin McCarthy—in the seafood company's home state of Massachusetts.2 In it, the plaintiffs alleged that Gorton had deceptively marketed certain frozen tilapia products as "sustainably sourced" despite the fish being farmed, at least in part, in China using allegedly "environmentally destructive and inhumane" practices. The 35-page complaint relied, in large part, on reports about imported tilapia generally—such as past incidents of the FDA rejecting Chinese imported tilapia for containing certain chemicals and statements from the Monterey Bay Aquarium Seafood Watch airing sustainability concerns over Chinese tilapia farming. Plaintiffs also pointed to independent lab-testing allegedly demonstrating that Gorton's tilapia contained ethoxyquin, a preservative that is banned for use in fish feed in the European Union but not in the US.
Gorton's moved to dismiss in June, arguing that while some of the fish did come from Chinese farms, every farm in its supply chain followed aquaculture best practices.3Gorton's also argued that the EU's ban on ethoxyquin was irrelevant, and that not only were the levels well within what the FDA permitted for use in fish feeds, the chemical traces detected by the lab-testing could also have included the spices added to the fish products far later in the manufacturing process and thereby be irrelevant to the "sustainably sourced" claim. Gorton's motion was further supported by two amici—The New England Aquarium and the Global Seafood Alliance—attesting to Gorton's use of credible third‑party certification to evaluate the quality of the Chinese tilapia farms. The amici also disputed plaintiffs' allegations that farmed fish was inherently unsustainable.
In her August 24 ruling, Judge Saris acknowledged that while farm-raised fish could still be sustainably sourced, plaintiffs nevertheless had asserted a "plausible (albeit hotly disputed) claim" regarding Gorton's specific farms using unsustainable practices and that this factual dispute could not be resolved by a motion to dismiss. On September 19, the parties announced that they had reached an agreement to settle the claims and resolve the lawsuit.4
Judge Saris' Spindel ruling follows closely on the heels of the Northern District of Illinois' May ruling in Rawson et. al v. ALDI, Inc., refusing to dismiss similar claims regarding farm-raised salmon products.5 These rulings illustrate the litigation risk attendant to sustainability statements and the potential for claims based on generalized evidence to proceed past the motion to dismiss stage, leaving companies on the hook for hefty legal fees and burdensome discovery. Even defendants like Gorton's, which had the support of industry groups, can still find themselves caught in the net of plaintiffs trawling the murky waters of greenwashing claims.
Companies should examine all green marketing carefully to ensure that all sustainability claims are clearly and accurately explained in consumer-friendly language and have underlying support. Companies may also consider proactively integrating evidence from third parties into their consumer-facing marketing, as additional support for any claimed environmental or health benefits. Finally, the ongoing focus on sustainability practices along a manufacturer and/or retailer's supply chain underscores the importance of proactively investigating suppliers and vendors.
Footnotes
1 Spindel v. Gortons, Inc., No. CV 22-10599-PBS, 2022 WL 3648823 (D. Mass. Aug. 24, 2022)
2 Complaint filed April 21, 2022, Spindel v. Gortons, Inc., No. CV 22-10599-PBS (D. Mass.)
3 Motion to Dismiss for Failure to State a Claim filed June 22, 2022, Spindel v. Gortons, Inc., No. CV 22-10599-PBS (D. Mass.).
4 Settlement Order of Dismissal filed Sept. 14, 2022, Spindel v. Gortons, Inc., No. CV 22-10599-PBS (D. Mass.).
5 Rawson v. ALDI, Inc., No. 21-CV-2811, 2022 WL 1556395 (N.D. Ill. May 17, 2022).
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