A typical “shakedown” lawsuit alleging deception was recently dismissed by the U.S. District Court for the Northern District of Illinois.  At issue was a meritless claim by a consumer who purchased eggs from Mariano’s Supermarket, a banner operated by the Kroger Companies.  The Plaintiff complained that he was “duped into paying more for farm-fresh eggs because he thought they were higher in quality”.  With incisive logic Judge Charles Kocoras dismissed the case accepting that the term “farm fresh” related to timing and location. The purchased eggs were derived from a ‘farm’ albeit from caged hens and were ‘fresh’ in that they were sold within the statutory use period. In his ruling, Judge Kocoras noted that, “No reasonable consumer would plausibly spin free-roaming hens on a grassy open field from the term, “farm fresh”.

This case, among many similar examples of litigation intended to extort settlements from producers and retailers and lacking in merit, highlights problems relating to nomenclature used on labels and at point-of-sale.

The USDA-AMS has been negligent in failing to define housing systems for egg and broiler production, resulting in confusion among consumers and to a certain extent, their exploitation by retailers and some producers.  Perdue Farms has petitioned the USDA for a clear and precise definition for “free-range” grown broilers. Enigmatically this company claims that its broilers are grown “cage-free” in the knowledge that all broilers in the U.S. are raised in barns with or without limited outside access.

The UEP has developed welfare housing standards for caged, aviary and floor-housed flocks. To add to the confusion of nomenclature relating to eggs various animal welfare organizations including the American Humane Association have issued standards with certification and the right to apply a seal on cartons against payment of a royalty.  USDA Certified Organic is the only statutory designation with statutory standards relating to production and housing including the use of non-GMO feed ingredients.  With respect to housing, new organic standards were recently adopted requiring outside access.

The industry should develop a set of unambiguous terms describing housing systems that should be incorporated into an AMS rule.  Neither the industry nor consumers can rely on fragmentation through a variety of organizations providing a range of certifications devoid of a legal basis. 

The UEP justifiably developed welfare standards that are regularly updated according to scientific findings. The UEP should now take the lead as the voice of the industry in developing the required definitions.  The UEP has standing to petition AMS and has the lobbying ability to motivate adoption of acceptable nomenclature.

It is interesting that the American Egg Board has been silent on the issue of definitions for production systems despite the fact that image of the industry and its products is an important component of promotion.  Given the resources of the UEP, a suitable list of descriptors could be developed and adopted in an AMS rule that would form the basis of promotion, labeling and point-of-sale claims.