Don’t believe everything you read on can labels, say class action lawsuits
Do you eat dolphins? Does your cat?
Not likely, and certainly not knowingly––but three class action lawsuits filed on May 13, 2019 by nationally noted legal firms specializing in consumer affairs contend that if either you or your cat eats tuna, the tuna probably was caught by methods that kill dolphins, despite the tiny “dolphin safe” logo on the can, and in violation of the 1990 Dolphin Protection Consumer Information Act.
The three comparably worded lawsuits target Bumble Bee Foods, Starkist, and the Nestle Purina PetCare Company for alleged consumer fraud and racketeering. These three companies together sell an estimated 95% of all the tuna bought by U.S. consumers.
Defendants allegedly source tuna “from fishers using illegal methods”
All three lawsuits were filed in San Francisco, in the U.S. District Court for the Northern District of California.
Each lawsuit alleges that the defendant company sources tuna from “from fishers using illegal methods,” summarized Christina Davis for the online legal newsletter Top Class Actions.
Specifically, the tuna suppliers to Bumble Bee Foods, Starkist, and the Nestle Purina PetCare Company are said to net tuna “on dolphin,” and/or using “Fish Aggregating Devices,” which also kill dolphins as well as sea turtles and many other species drawn to them. While neither method is entirely “illegal,” both are allegedly in violation of the intention of the 1990 Dolphin Protection Consumer Information Act.
What netting “on dolphin” means
Netting tuna “on dolphin” is the better known of the two techniques.
Because dolphin and tuna often feed together, with dolphins frequently breaching the ocean surface to breathe while the tuna remain submerged, tuna fishers learned decades ago that they could catch tuna most efficiently by spotting breaching dolphins first, then drawing seine nets around the dolphins.
In theory the dolphins can jump out of the nets to safety, but tuna netting in practice killed many as 150,000 panic-stricken dolphins per year in the 1980s. Most of the dolphins drowned in the nets; some were crushed in the winches used to draw the nets closed.
Finally, summarized Tom Turner in A History of Earth Island Institute’s 25 Years (2008), “A volunteer named Sam LaBudde [now a noted climate scientist] went to Mexico, landed a job as cook on a Panamanian tuna boat, and [in 1988] managed to shoot a gruesome videotape of the carnage. The film was given to network television and shown to Congress. It caused immediate outrage.
“A boycott of tuna was launched,” Turner recalled. “A lawsuit was filed that resulted in court orders to slow the killing. Finally, in 1990, Starkist Tuna, the largest tuna company in the world, announced it would go dolphin safe. The other tuna companies quickly fell into line. The slaughter of Pacific dolphins that once killed 150,000 animals annually now takes about 1,000,” or was believed to.
But netting “on dolphin” secretly continued
In 2011-2012, however, the Sea Shepherd Conservation Society and Greenpeace separately began gathering and publishing documentation that some supposedly “dolphin safe” fishers were in truth netting tuna “on dolphin.”
Earth Island Institute, having brokered the original “dolphin safe” agreement, took no visible action against Starkist, Bumble Bee Foods, and Nestle for allegedly violating it.
Fish Aggregating Devices
Fish Aggregating Devices, called FADS for short, are defined by Wikipedia as, “a man-made object used to attract ocean-going pelagic fish such as marlin, tuna and mahi-mahi,” used to “catch over one million tons of tuna per year, nearly a third of the global tuna total, and over 100,000 tons of by-catch [fish of no commercial value] as of 2005.”
Like netting tuna “on dolphin,” FADS help to entrap and kill dolphins too, in great numbers, as the dolphins converge along with tuna to feed on smaller fish gathering beneath FADS.
Frustrated that Earth Island Institute had not amended the original “dolphin safe” definition to cover the use of FADS too, and had not responded effectively to the allegations of continued tuna netting “on dolphin” either, Dolphin Project founder Ric O’Barry, on September 30, 2014 left the fundraising umbrella of the Earth Island Institute after an eight-year partnership which, for a time, had seemed as natural as the tendency of tuna to swim with dolphins.
O’Barry originally incorporated the Dolphin Project in 1982. For about 10 years O’Barry and the Dolphin Project worked in partnership with the World Society for the Protection of Animals, now called World Animal Protection, and then for three years with the French animal charity One Voice. But working with the Earth Island Institute’s Marine Mammal Project appeared to be a more comfortable fit, until O’Barry felt that the money the Earth Island Institute received through the “dolphin sale” labeling scheme had trumped actually saving dolphins.
“Resigning from Earth Island cost my family our free life insurance policy,” O’Barry posted to his web site on May 16, 2019. “It’s something I can’t even buy any more because of my age. But I had no choice. I couldn’t go on knowing my paycheck was probably coming from big tuna.”
Allegations that “dolphin safe” tuna labeling requirements were routinely ignored by the major canned tuna vendors simmered for years while the government of Mexico fought a series of lawsuits alleging that the 1990 Dolphin Protection Consumer Information Act and “dolphin safe” labeling are “process standards,” a type of regulation based on how a product is made, rather than on what the product is.
“Process standards,” typically used by nations to protect industries using obsolete technology against foreign competition, are forbidden by the international General Agreement on Trade & Tariffs, brokered by the United Nations. The GATT treaty, however, includes some exemptions for “process standards” adopted to protect the environment or the health and safety of workers.
“Lo siento, Charlie”
Had Mexico won the case, the Dolphin Protection Consumer Information Act and “dolphin safe” labeling might have been dismantled to avoid global trade sanctions against U.S. products. But the World Trade Organization ruled in December 2018 that “The U.S. had justly denied Mexican tuna the use of the ‘dolphin safe’ label,” summarized Colin Dwyer for National Public Radio.
“Though the label is not mandatory for tuna products to be sold in the U.S.,” Dwyer explained, “denying Mexico the label, as the World Trade Organization itself observes, “constitutes an ‘advantage’ on the U.S. market for tuna products.”
The World Trade Organization ruling cleared the way for the newly filed class action lawsuits.
The three cases are brought on behalf of different but overlapping sets of individual plaintiffs, by the same legal teams, drawn from four firms.
Among them are five lawyers from Bonnet Fairbourn Friedman & Balint, of Phoenix, Arizona; Brian D. Penny of Goldman Scarlato & Penny PC, in Conshohocken, Pennsylvania; Brian M. Brown of Zaremba Brown PLLC, in New York City; and three lawyers from Robbins Geller Rudman & Dowd LLP, of San Diego, California.
Summarizes the case against Nestle Purina PetCare Company, setting forth the basic arguments in all three cases: “Defendant markets, sells, and distributes tuna cat food products under its Fancy Feast brand. Nestle is headquartered in St. Louis, Missouri, and is the second largest pet food company in the world and the largest in the United States.
“Recognizing that consumers expect its products to be responsibly sourced, Defendant promises consumers that its Fancy Feast tuna products are ‘Dolphin Safe’ by displaying a dolphin safe logo on every product label. Since the introduction of Defendant’s dolphin safe policy, including the last four years, however, Defendant’s Fancy Feast tuna products have not been ‘Dolphin Safe.’”
The basis of the consumer fraud allegation is that “U.S. tuna sellers, including Defendant, initiated and implemented a widespread and long-term advertising and marketing campaign that continues to this day – representing to consumers that no dolphins were killed or harmed in capturing their tuna, as well as expressing their commitment to sustainably sourcing tuna.
98% of canned tuna is labeled “dolphin safe”
“In fact,” the allegation continues, “98% of the prepackaged tuna sold today in the U.S. for human consumption is labeled with some ‘dolphin safe’ representation.”
The filing against Nestle cites relevant product sourcing policy statements from Petco, PetSmart, Whole Foods Market, the Giant Eagle grocery store chain, and Wegmans Food Markets.
The Nestle Purina PetCare Company, however, “elected not to utilize the Dolphin Protection Consumer Information Act official dolphin safe logo,” instead using a different image incorporating the words “Dolphin Safe.”
“Alternative ‘dolphin safe’ logo”
“By placing an alternative ‘dolphin safe’ logo on Fancy Feast tuna products, rather than the official mark,” the filing against Nestle contends, “Defendant voluntarily assumed the heightened dolphin safety requirements under the Dolphin Protection Consumer Information Act, applicable to all locations where Defendant captures its tuna.
“Pursuant to the regulations, Defendant must ensure that (1) ‘no dolphins were killed or seriously injured in the sets or other gear deployments in which the tuna were caught’; and (2) ‘the label is supported by a tracking and verification program’ throughout the fishing, transshipment and canning process, ‘periodic audits and spot checks’ are conducted, and Defendant must provide ‘timely access to data required.’”
Brands that actually are “dolphin safe”
Acknowledges the lawsuit, “Several cat food tuna companies and companies that manufacture tuna products for human consumption use traditional pole-and-line and trolling methods of catching tuna,” which are considered dolphin safe.
“These companies include American Tuna (for its Deck Hand Premium Cat Food and The Cat’s Fish brands) and Fish4Ever (for its tuna cat food sold in the U.K.), Safe Catch, Ocean Naturals (for its Albacore tuna), Wild Planet, Whole Foods 365 Everyday Value brand (for its skipjack and albacore tuna), and Trader Joe’s.”
Nestle Purina PetCare “is not among them”
The Nestle Purina PetCare Company “is not among the tuna companies that use only dolphin safe pole-and-line or trolling techniques to capture the tuna in its Fancy Feast tuna products,” the complaint alleges. “Nor does Defendant identify the dolphin-harming fishing methods it does use on product labels or on its website, simply stating ‘our fish and seafood come from a variety of sources, including wild fisheries in oceans around the world…’”
Contends the lawsuit, “The unspecified ‘variety of sources’ principally include Thai Union Group, which is based in Thailand and known for its illegal, unreported, and unregulated fishing practices, and its indiscriminate use of purse seine nets and longlines to capture tuna.”
What the lawsuits ask for
The cases against Bumble Bee Foods, Starkist, and the Nestle Purina PetCare Company each seek to establish a class action on behalf of all U.S. consumers who bought non-“dolphin safe” tuna in the belief that it was “dolphin safe.”
Each lawsuit also asks for “an order [from the court] declaring that Defendant has engaged in unlawful, unfair, and deceptive acts and practices in violation of [state] consumer fraud laws”; an order “enjoining Defendant’s conduct and ordering Defendant to engage in a corrective advertising campaign”; an order “Awarding restitution of Defendant’s revenues to plaintiffs and the proposed Class members; an award of damages, both statutory and punitive, to the plaintiffs; an award of “attorneys’ fees and costs”; and “such further relief as may be just and proper.”
Starkist “doesn’t comment”
Elaborating on the case against Starkist in particular, CBS Moneywatch correspondent Kate Gibson mentioned that “StarKist is also accused of violating federal racketeering law by knowingly doing business with foreign fishing companies whose practices don’t meet national dolphin-safe standards.”
A Starkist spokesperson emailed to CBS Moneywatch that while Starkist “doesn’t comment on pending legal matters, the company is ‘committed’ to protecting dolphins and adopted a dolphin-safe policy in April 1990,” Gibson said.
“Owned by South Korea’s Dongwon Industries,” Gibson continued, “StarKist doesn’t buy tuna caught with gill nets or drift nets,” according to the spokesperson, and “’condemns the use of these indiscriminate fishing methods that trap dolphins, whales and other marine life along with intended catch,’ the spokesperson added.”
Chicken of the Sea
“Thai Union-owned Chicken of the Sea issued a similar statement,” Gibson added, “saying it ‘is committed to supporting the conservation of all marine species and ensures all our products are certified ‘Dolphin Safe.’
“Lion Capital-owned Bumble Bee did not immediately return requests for comment.”
Recalled Gibson, “StarKist late last year agreed to plead guilty to felony price fixing as part of a broad collusion investigation of the canned tuna industry that also had Bumble Bee’s CEO and other executives facing charges.”
Tuna are sentient & suffering too
Focused as they are on the “dolphin safe” tuna issue, the lawsuits against Bumble Bee Foods, Starkist, and the Nestle Purina PetCare Company make no mention of increasing concern that most tuna species themselves are overfished, in some instances to commercial endangerment, and increasing awareness that tuna––who are among the few warm-blooded fish––are as much sentient, suffering creatures as dolphins.
“Tuna is the second biggest canned good product sold in the U.S., according to recent data from the Canned Food Alliance,” reported Kat Smith for LiveKindly in February 2019, profiling “vegan tuna” chefs and developers Chad and Derek Sarno, co-founders of Good Catch Foods.
Will plant-based “vegan tuna” help?
“On average,” Smith recited, “Americans eat about one billion pounds of canned and pouched tuna a year, a figure only exceeded by coffee and sugar in sales per foot of supermarket shelf space. The U.S. is the second largest consumer of canned tuna in the world. Nearly half of all American households serve canned tuna at least once a month; but many homes consume it weekly.”
The Sarnos believe their “proprietary six-legume blend” of chick peas, soy, green peas, lentils, fava and navy beans, plus sea algae oil, can displace a big chunk of the canned tuna market, thereby saving dolphins, sea turtles, other “by-catch,” much of which is wasted, and tuna too.
But, will cats eat it?