Shakedown Suit Initiated Against Walmart Stores Over Perception of Organic Eggs

01/10/2018

Due to changes in legislation in California favoring trial lawyers, the state has become a hotbed of class-action suits claiming deceptive advertising. The latest in the series involves Donnie Lee Gibson v. Walmart Stores et al. filed in the District Court, Northern District of California, (Case number 18-00134)

 At issue is the perception that the plaintiff presumed that organic eggs were from hens allowed access to pasture. Regulations currently in effect under the National Organic Program allow for sunporches to be used to provide access to “sunshine”. The eggs in question were produced at a farm with state-of-the-art houses providing access to sunporches which meet USDA standards.

The lawsuit alleges that “consumers paying more for organic eggs have been deceived”, noting “It’s very important that consumers get what they think they are paying for.” From a legal standpoint, if the producer is in compliance with the National Organic Program regulations, they are entitled to place the USDA Certified Organic seal on packaging. It is understood that there was no deception by placing artwork on packs depicting chickens on pasture or green foliage.

In point of fact, small pens for token “outside access” as used by many organic producers are essentially covered in earth or mud since concentration of hens over a limited area denudes foliage. Even with pasture management with up to 100 square foot per hen, grass is absent in enclosures in Midwest and Northern-tier state operations during winter. 

In 2016, the National Organic Program proposed outside access requirements of up to 2 square foot per hen. This was a cynical attempt to reduce competition from efficient in-line organic egg production complexes holding upwards of 500,000 hens with houses equipped with aviary installations. With the advent of the new Administration in 2017, the NOP proposed rule was withdrawn, subject to further study.

The Gibson v. Walmart Stores suit is without merit since eggs were produced in accordance with the provisions of the National Organic Program and Wal-Mart made no representations either direct or indirect concerning grass, soil or outside access for flocks. What the plaintiff may or may not have believed or perceived is immaterial in law and it is hoped that Walmart and co-defendants will vigorously defend the action. If desired the token plaintiff could have purchased pasture-reared eggs at $7 per dozen, but apparently chose to buy less-expensive USDA Certified Organic product.

(SMS 072-18 January 10th 2018)






































































































































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