Animal rights groups often pursue consumer-type cases against food producers and argue that packaging claims and images supposedly mislead buyers into thinking that the animals turned into food were humanely raised. The goal really isn't transparency. The goal is to use the cost of defending such claims to end the eating of animals as food. On August 9, 2024, the D.C. Circuit knocked out such a case on standing grounds. Animal Legal Defense Fund, Inc., v. Vilsack, No. 23-5009 (D.C. Cir. Aug. 9, 2024).
Plaintiff, Animal Legal Defense Fund (ALDF), challenged a decision by the U.S. Department of Agriculture's (USDA's) Food Safety and Inspection Service (FSIS), under the Poultry Products Inspection Act, to approve the images on the labels of a producer's chicken products packages. The labels depicted cartoon birds in cartoon free-roaming environments. According to ALDF, this labeling was misleading because it suggested the birds were raised outside when they spent most of the time inside. ALDF also challenged the agency's alleged "pattern and practice" of not passing judgment on the graphic matter or imagery of poultry packaging generally. The D.C. Circuit agreed with the district court that plaintiff had no standing to pursue either claim.
On appeal, ALDF premised its standing on associational standing pursuant to which an organization can sue as long as one of its members has standing in their own right. Not surprisingly, the member here — Marie Mastracco — apparently wasn't actually a chicken eater herself. Instead, she bought the chicken to feed to her elderly dog and asserted that she had been misled into the purchase because the labeling made her believe the chicken had been raised humanely. Whether the dog cared how the chickens were raised was not made clear. In any event, Mastracco had no standing.
As to the agency's approval of the labeling, the court agreed that Mastracco suffered an injury in fact for standing purposes by purchasing a product that allegedly was mislabeled. But because the plaintiff sought injunctive and declaratory relief, a past injury was insufficient. The harm had to be either ongoing or imminent. There was neither type of harm. Indeed, there was no likelihood that Mastracco would be misled again because she now knew that the chickens did not in fact live outside. Further reliance on the labeling to make future purchases was therefore nothing but a "self-inflicted" injury:
Here, the entire premise of the complaint is that Mastracco now knows that Fresh Line chicken, regardless of the imagery on the label, is raised indoors. And ALDF fails to explain why it is substantially likely that Mastracco will continue to purchase Fresh Line chicken—and rely on the label's graphics when doing so—now that she knows that the chickens were raised in a way that "is anathema to her ethical views." ALDF Br. 19. Nor does ALDF explain why Mastracco's reliance on labels she knows to have been misleading could be something other than a self-inflicted injury.
Slip. op. at 12.
In this regard, the court rejected ALDF's reliance on the decision in Davidson v. Kimberly-Clark Corp., 889 F.3d 956 (9th Cir. 2018). That is the case that gave credibility to the so-called "ongoing distrust" theory of consumer injury, i.e., without an injunction against the advertising, a once-deceived consumer could theoretically get tricked into believing that the once-mislabeled product was now "improved." ALDF never explained why, per the Davidson rationale, Mastracco could credibly argue that, knowing that the labeling was misleading and that the chickens are raised inside, she would magically assume that the producer woke up one day and suddenly put all the chickens outside. (In case you are wondering, Davidson itself really doesn't explain why this makes sense.)
Mastracco had no standing on the second claim either. Mastracco could only be injured by the agency's "pattern and practice" of not reviewing graphic labeling and imagery unless there are other products out there containing such labels that Mastracco might purchase. However, ALDF's complaint — which was the only thing offered up to establish standing — contained no such allegation:
Based on the facts ALDF has pleaded in the complaint, we do not doubt that Mastracco will find herself in the meat section of her grocer because she needs to purchase chicken breasts for her dog. Nor do we doubt that she will seek out a humanely raised product and, if presented with a non-Fresh Line label that graphically depicts birds' living conditions, might rely on that imagery to inform her choice. But the complaint gives no reason to infer that such a label even exists. In that light, we cannot say it is possible—much less substantially likely—that Mastracco will be injured by FSIS's ostensible policy. ALDF thus fails to demonstrate standing for its second claim.
Slip op. at 17-18.
So, another strained theory of standing to sue bites the dust. Standing to sue is one of the least exciting things a lawyer can study. But it literally is the key to the courthouse door because without standing there is no case. And if your ideologically adversaries have no standing, they cannot use the legal system to carry out their agendas.
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