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Consumers Allege ‘Dolphin Safe’ Tuna Claim is False, Reminding Brands Not To Bite Off More Than They Can Chew

A recently-filed consumer class action alleges that canned tuna producer, StarKist, misled consumers when they claimed their tuna products are “100% dolphin-safe” and “sustainable.” The class action is moving forward after StarKist attempted unsuccessfully to get the case dismissed. The case alleges that StarKist’s advertising breached consumer protection laws in six states and seeks consumer refunds for four years. 

Summary

In 1990, StarKist became the first major tuna company to adopt a “dolphin-safe” policy, claiming that “nothing short of dolphin-safe tuna will be acceptable.” Today, every StarKist tuna product has a “Dolphin Safe” logo on it, and company marketing materials, including social media posts, regularly tout the company’s products as “dolphin safe” and “sustainable.”

The plaintiffs allege that StarKist’s “dolphin safe” advertising campaign falsely suggested to consumers that its tuna was 100% dolphin safe and that StarKist set itself to a high dolphin-safe standard. While StarKist does refuse to purchase tuna caught with gill or drift nets, which are widely regarded as dangerous to many forms of marine life, the plaintiffs allege that StarKist uses other fishing techniques that are harmful to dolphins. Specifically plaintiffs allege StarKist utilizes modern purse seine nets, longlines, and “fish aggregating devices” (FADs), that are known to harm or kill at least some dolphins and are recognized as “unsustainable” practices. The use of these other techniques, according to the plaintiffs, makes StarKist’s dolphin safe claims false.

On StarKist’s motion to dismiss, the court concluded that the plaintiffs sufficiently alleged that StarKist’s dolphin safe claims are false or misleading because the company utilizes fishing techniques that are widely-known to kill and harm dolphins.

Notably, federal law provides specific guidance for “dolphin safe” labeling and advertising claims and those regulations generally do not prohibit the type of fishing techniques used by StarKist. While StarKist tried to argue that the plaintiffs’ claims should be thrown out because StarKist complies with the federal labeling standards, the court disagreed, concluding that regardless of the federal standards, StarKist’s advertising reasonably conveyed the message that StarKist sets itself to a higher standard than federal regulations because it promises that its tuna products are 100% dolphin safe and sustainably sourced.

Takeaway

This case is a reminder that even longstanding advertising claims and slogans, particularly unqualified claims and slogans, can come under attack if companies fail to closely monitor their use. Here, the court concluded that the plaintiffs had plausibly alleged that StarKist’s use of the “dolphin safe” claims convey a stronger message than the company can support. While StarKist prohibits the use of some harmful fishing practices and is likely largely in compliance with federal dolphin safe labeling standards, the context of StarKist’s advertising suggested more than that, namely, that its fishing practices are 100% dolphin safe and sustainable. Properly qualifying or explaining the basis for such claims, including in press releases and social media posts, can often help reduce an advertiser’s risk of drawing a regulatory inquiry or false advertising challenge.

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