The effects of factory farms are not limited to fenceline communities. Industrial agriculture, and animal agriculture in particular, is especially resource intensive and environmentally destructive. Agriculture is one of the biggest industrial contributors to climate change, making up as much as 70% of freshwater usage globally and furthering massive soil erosion and deforestation worldwide. World Bank, Chart: Globally, 70% of Freshwater Is Used for Agriculture (Mar. 22, 2017). Animal waste and pesticides leach into waterways, spread dangerous pathogens and diseases, and release harmful gases and toxins into the air.
“Greenwashing” of Consumer Food Products
U.S. consumers are increasingly concerned with the negative impacts of industrial, factory-farm-style agriculture on the planet and public health. Ashley Reichheld, John Peto & Cory Ritthaler, Research: Consumers’ Sustainability Demands Are Rising, Harv. Bus. Rev. (Sept. 18, 2023). These “conscious consumers” seek to leverage their purchasing power to invest in products that promise to use supply chains and practices that are safer for human health and have less of an environmental impact than their competitors. The problem? Industry has caught on to this trend in consumer purchasing behavior but remains motivated by profit margins to continue low-cost factory farming practices. Industry knows that it can sell more products and at higher prices if it markets in ways that lead consumers to believe that products are “sustainable,” “eco-friendly,” “climate-friendly,” “carbon neutral,” or similar claims, which are designed to indicate the company has adopted practices that are responsive to increasing consumer concerns about the environment and public health—even if that marketing is not necessarily accurate.
Consumers themselves have limited options to uncover the truth about how their food is sourced and to hold the agriculture industry accountable for such deception. Few (if any) people have the time, investigatory capabilities, or industry-specific knowledge to (i) trace back a product they buy at the grocery store to a distribution facility; (ii) identify which farm the product came from; (iii) gain permission to access private agricultural property; and then, finally, (iv) evaluate whether that farm’s practices, in fact, match the product’s marketing. As a result, corporations are incentivized to send inaccurate marketing messages to consumers in lieu of investing time and money into actually changing production practices to minimize environmental harm.
The result is “greenwashing”—the practice of using marketing claims to overstate the environmental benefits of a product or business practice, or to detract from its negative effects on the environment and human health. Companies use “green” marketing to appeal to the growing number of people interested in more environmentally friendly products—many of whom are willing to pay a premium for products or to support businesses they believe will have less of an impact on the environment.
One avenue to combat this deception is through consumer protection lawsuits challenging the greenwashing of consumer food products by companies that engage in misleading advertising and harmful business practices. Truth in Advertising, By the Numbers: Greenwashing Class-Action Lawsuits (Oct. 30, 2023). Recently, New York’s Attorney General Letitia James filed suit against the U.S. arm of Brazilian meat company JBS, accusing the meat producer of misleading customers about its climate commitments, such as “Net Zero by 2040,” despite the company’s growth plans. People v. JBS USA Food Co., No. 450682/2024 (N.Y. Sup. Ct. Feb. 2, 2024). The Attorney General’s complaint contends that JBS is making deceptive claims under N.Y. General Business Laws §§ 349 and 350 and Executive Law § 63(12) because, in contrast to its representations to be “Net Zero by 2040,” JBS has documented plans to increase production and therefore increase its carbon footprint.
Alternatively, the Federal Trade Commission (FTC) provides another option to hold corporations accountable for misleading advertising. In an effort to establish guidelines for claims made in the environmental marketing space and to protect consumers from potentially misleading claims, FTC established the “Green Guides” in 1992 (the most recent version of which was adopted in 2012, with further updates currently under review). The Green Guides, which can be found at 16 C.F.R. Part 260, set forth guidelines for environmental marketing claims involving recyclability, nontoxic qualities, carbon offsets, renewable energy, and general “unqualified” environmental benefits, among other representations. But these “guides” are just that—voluntary guidance, not regulation—and are severely underutilized and often ignored by industry entirely.
Similar to the FTC, in 1971, the U.S. advertising industry founded the National Advertising Division (NAD) and National Advertising Review Board (NARB) as a system of industry self-regulation to build consumer trust in advertising and support fair competition. NAD functions as the “trial”-level body in this system, while NARB functions as the system’s “appellate”-level body. NAD’s case decisions represent the single largest body of advertising law in the United States and “challenges” can be brought by businesses, trade associations, consumers, nonprofits, or NAD itself. Although participation in an NAD challenge is voluntary, if NAD rules in a challenger’s favor, the default remedy is NAD’s recommendation for modification and/or discontinuance to the challenged advertising. NAD rulings on what constitutes false advertising in a given industry have wide implications that set standards and send a message to other companies about what is and is not acceptable. BBB Nat’l Programs, BBB National Programs Decision Summaries. A favorable ruling against one organization could, therefore, discourage others from misusing claims.
“Humanewashing” of Agricultural Products
In addition to increased consumer concern over environmental harms, there is also growing consumer concern over the humane treatment of animals raised for consumption. Consumers who eat animal products increasingly seek out products that purport to be made from “humanely” raised animals. Consumers expect this to mean that the animals experience sunlight and grass, go outdoors, are not subject to painful mutilations without pain management, are not caged, and are not confined in barren, overcrowded, and disease-ridden facilities. Consumers are often willing to pay a premium for animal products when producers claim animals under their care are treated better than the factory-farming industry standard.
As in the case of greenwashing, the animal agriculture industry knows consumers have little to no ability to evaluate for themselves claims related to how animals are raised. For example, most people will never see inside the dairy where the milk they purchase is produced. Seth Millstein, Ag-Gag Laws, and the Fight over Them, Explained, Sentient Media (May 17, 2024). Corporations play to consumer morals and cultivate false images of “Old McDonald”–style farming, where dairy cows are raised on small-scale, idyllic pastures where mothers and calves frolic in the sunlight. Their marketing disguises the reality that most calves are separated from their mothers at birth and confined to sheds so small they cannot express their natural behaviors or do much more than turn around. Contrary to industry’s marketing representations, the grim reality is that an estimated 99% of farmed animals are raised in such conditions. Hannah Ritchie, How Many Animals Are Factory-Farmed?, Our World in Data (Sept. 25, 2023).
This situation is referred to as “humanewashing”—deceptively marketing animal products so that they appear to be from animals raised more humanely than they actually are, often by overstating the brand’s animal welfare standards while concealing the true nature of the animals’ poor living conditions and mistreatment. An egg producer may, for example, claim its eggs come from “free-roaming” hens; however, while the hens are not technically caged, they never go outside their barn or see sunlight, and are still allocated only as much space as their caged counterparts. This does not match consumers’ expectations regarding conditions of “free roaming” hens and renders the only difference between caged and “free roaming” to be the absence of visible bars.
There have been two recent examples of humanewashing cases brought against poultry producers in connection with their marketing of eggs. In Animal Outlook v. Alderfer Family Farm LLC et al., nonprofit Animal Outlook brought a challenge to a poultry producer’s representations that its eggs are sourced from “free roaming” hens. No. 2023-CAB-007338 (D.C. Super. Ct. filed Dec. 1, 2023). The nonprofit plaintiff alleges that, contrary to the marketing representations, most chickens in Alderfer’s supply chain will never go outdoors or touch grass and are confined indoors for the entirety of their lives. The plaintiff further contends that only a small fraction of those birds do have minimal, quasi-outdoor access in the form of an elevated mesh-floor “porch” that only a few of the chickens can access at once, and that does not provide access to natural groundcover.
In Lugones v. Pete & Gerry’s Organic, LLC, a Southern District of New York putative class action, plaintiffs alleged that the marketing of the egg products at issue as “free range” was deceptive because this claim misled consumers into believing that hens in the producer’s supply chain were able to move freely indoors and roam outdoors. The plaintiff contended that these hens were actually crammed into overcrowded sheds of 20,000 chickens at a time with limited or no access to the outdoors. Lugones v. Pete & Gerry’s Organic, LLC, 440 F. Supp. 3d 226 (S.D.N.Y. 2020). The court denied a motion to dismiss, finding that the plaintiffs plausibly alleged that a reasonable consumer could be misled by the “free range” statements under either Section 349 or 350 of the New York General Business Law, and also held that the plaintiffs had successfully alleged fraud and fraudulent misrepresentation under New York law. A majority of these greenwashing and humanewashing lawsuits are resolved through private settlement, with defendants agreeing to make changes to the marketing materials at issue.
Most of the animal husbandry claims that producers make on animal product packaging or labeling have no set legal definition and are not reviewed for accuracy by any third-party or governmental entity. Producers themselves make up their own definitions for marketing claims, and consumers have no way to ascertain what the producers mean or whether the claims are truthful. In the narrow circumstances where claims are subject to federal oversight by the USDA Food Safety Inspection Service (FSIS), as is the case under the Poultry Products Inspection Act and Federal Meat Inspection Act (but only for meat products for which animal-raising claims are made directly on the label), USDA-FSIS does not appear to be adequately reviewing these claims to ensure accuracy. For example, from 2013 to 2021, Animal Welfare Institute (AWI), a nonprofit advocacy group, requested information on label pre-approval applications through the Freedom of Information Act for 97 “humane”-style claims and found through its requests that for 48 claims, USDA-FSIS had no label pre-approval application on file at all, and for 34 claims in which an application was on file, it contained either no or insufficient substantiation for the animal welfare claim. Animal Welfare Institute, Deceptive Consumer Labels (2023).
In 2019, AWI filed a complaint with NAD against Hatfield Quality Meats, a subsidiary of Clemens Food Group, the eleventh-largest pork producer in the United States. AWI argued that Hatfield’s labels claiming that its pigs were “Ethically Raised by Family Farmers Committed to a Higher Standard of Care, Governed by Third Party Animal Welfare Audits” was false and misleading because the labeling implied that the products came from pigs raised in a more ethical manner than conventional production based upon the plain language of the claim itself and the use of comparative language (“higher”) to define its standard of care. NAD ruled that Hatfield’s standards were “not sufficient to substantiate the claim” and recommended Hatfield remove the claim from its labels. Press Release, BBB Nat’l Programs, NAD Recommends Hatfield Discontinue Animal Welfare Claim for Its Pork Products Following NAD Challenge (Sept. 19, 2019). The decision marked the first time NAD recommended the removal of a label claim on a meat product.
While the prevalence of humanewashing means that consumers cannot trust the labels, packaging, or marketing they read in the grocery store aisle, without any third-party oversight or option for independent confirmation, those same consumers have no realistic choice other than to trust that marketing. Humanewashing, like greenwashing, reduces transparency, affords ample opportunity for profitable deception, and creates confusion about the reality of animal agricultural production processes.
The Environmental Injustice of Greenwashing and Humanewashing
Greenwashing and humanewashing obscure the harsh reality of the detrimental impacts on public health, farmed animals, and the environment caused by industrial agriculture. This deliberate spread of misinformation quells citizen outrage over the negative consequences on local communities and prevents the type of mass mobilization that might otherwise force industry to adopt better practices in the face of public pressure. Moreover, low-income and minority communities, who bear the brunt of industrial agriculture’s negative environmental and human health consequences, are actually in the best position to understand the misleading nature of greenwashing and humanewashing because they live in the communities most directly affected by its consequences. Unfortunately, these communities also have the fewest resources to raise public awareness and to fight against factory farming.
In fact, low-income and minority communities are specifically targeted as ideal sites for industrialized agriculture production because of systemic racism that allows more affluent communities to prevent these facilities from being built in their “backyards.” Jamie Berger, How Black North Carolinians Pay the Price for the World’s Cheap Bacon, Vox (Apr. 1, 2022); see also Injustice in Our Industrial Food System: CAFOs and Racial Inequity, Mo. Coal. for the Env’t Blog (June 10, 2020). Rallying against industrialized agriculture and preventing the further development of these facilities require organizing, lobbying, time, and engagement in local government politics surrounding community zoning and industry. These resources are out of reach for most underserved communities.
Recently, a community in the DelMarVa region in Delaware organized against a biogas facility being sited in their neighborhood. Advocates and community members filed, on behalf of the surrounding minority community with limited English proficiency, an environmental justice complaint against Delaware Department of Natural Resources and Environmental Control (DNREC) and Sussex County, Delaware, for violating Title VI of the Civil Rights Act of 1964. Complaint Under Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d, Regarding Civil Rts. Violations by the Del. Dep’t of Nat. Res. & Env’t Control in Seaford, Sussex Cnty., Del. (Dec. 22, 2022). The Title VI complaint alleges that DNREC and Sussex County, Delaware, violated the public’s rights to information and public participation when reviewing permits for a biogas plant in the region, resulting in discrimination against the local community. In September 2023, the EPA agreed to investigate whether DNREC discriminated against the Black, Hispanic, Latinx, and Haitian communities on the basis of race, color, and national origin, and specifically the Spanish- and Haitian Creole–speaking communities with limited English proficiency. Also, the EPA said it will investigate whether DNREC is complying with its “general nondiscrimination obligations” and has a “public participation policy and process that is consistent with Title VI and other federal civil rights laws.” Press Release, SRAP, EPA Accepts Civil Rights Complaint in Delaware Over Factory Farm Gas Plant (Sept. 11, 2023). This organizing and action provide another legal pathway to holding corporations accountable for their greenwashing of the industry.
Industrialized agriculture creates environmental and health burdens that result in long-lasting, generational harms. “Fenceline communities”—those communities living closest to industrialized agriculture facilities—are forced to deal with the most severe and direct impacts of these polluting industries. Hazardous fumes and chemical byproducts contaminate the local water, soil, and air, creating “cancer clusters” and everyday medical stressors, such as headaches, respiratory problems, eye irritation, nausea, weakness, and chest tightness. These persistent health complications make it difficult for parents to keep their jobs and for kids to go to school, and these losses compound to create generational wealth inequities that trap fenceline families in medical debt and poverty. Furthermore, some families living fenceline have no option but to work at these facilities, given that these jobs are usually the best option for employment in the area (despite frequent on-the-job injuries and sicknesses)—forcing them to choose between advocating for the health of their families and communities and continued employment.
Income inequality also allows more privileged families the option to avoid foods produced by industrialized agriculture by, for example, purchasing animal products from local family farms or farmers’ markets, which are typically more expensive than similar products sold at chain grocery stores. Animal products from factory farms cost less (in part because of massive government subsidies) but are less nutritious than traditionally farmed, “slow-grown” food products. According to the UN Environment Programme, these nutrient deficiencies have been shown to “impair cognitive development, lower resistance to disease, increase risks during childbirth, and, ultimately, affect economic productivity. Therefore, underserved and fenceline communities are effectively disadvantaged both as producers and consumers.” UN Env’t Programme, 10 Things You Should Know About Industrial Farming (July 20, 2020).
Greenwashing and humanewashing contribute to environmental injustice in a variety of ways, which is perpetuated through the misleading marketing that lulls consumers into overlooking the harms of industrialized agriculture. Consumers who have been misled by this marketing do not demand change, and large-scale industrialized agriculture remains the predominant form of food production. The environmental impact of factory farming and the attendant health impacts hit low-income and marginalized fenceline communities the hardest; those same communities find their members trapped in undesirable and dangerous factory farming jobs. Low-income consumers everywhere are the least able to afford “slow” foods produced outside the industrialized model and thus are most prone to suffering the health costs and effects of cheaper foods. In general, consumers have very few avenues to change this system.
Litigation Presents an Opportunity for Consumer Advocacy
While private third-party review of marketing claims is often cited as one potential solution to consumer deception, the majority of existing certification programs are inadequate due to industry capture, lax standards, and poor oversight. These certifications can add to consumer confusion, at best, and lend false credence to a producer’s misleading representations, at worst. Additionally, current regulatory oversight of marketing claims is nearly nonexistent. False advertising litigation therefore has emerged as a primary mechanism to combat greenwashing and humanewashing.
Given the justice issues inherent, and the lack of administrative oversight, consumers continue to challenge industrial agribusinesses’ greenwashing and humanewashing representations through consumer protection (false and deceptive advertising) litigation. The fight against greenwashing and humanewashing is, at its core, a battle to expose the truth, which can improve lives by protecting communities and the environment by allowing consumers to make informed choices about what products they support and ultimately purchase. Private plaintiff enforcement through consumer protection litigation is an essential means of pressuring industrial agribusiness to be truthful and transparent in advertising.
