A series of lawsuits related to sustainability claims and eco-labels have changed the seafood industry’s approach to marketing sustainability bona fides. Lawsuits filed against Mowi, Gorton’s, ALDI, Conagra, Bumble Bee Foods, and Red Lobster are either pending or have resulted in settlements.
The suits should be a wake-up call to the seafood industry that it needs to change its marketing practices, according to Arlin Wasserman – the founder and managing director of Changing Tastes, a seafood industry consultancy working at the intersection of sustainability, public health, information technology, demographics, and the changing role of the culinary professional. Wasserman, who was previously the vice president of sustainability at foodservice provider Sodexo, recently discussed how companies can adapt and modernize their marketing campaigns with SeafoodSource.
SeafoodSource: Even though a judgment has yet to be handed down in any of these cases, none of them have been dismissed. Do you think the judges in these cases are getting it right when they accept plaintiffs’ assertions that some eco-labels and other sustainability-focused marketing constitute false advertising?
Wasserman: The verdict is not in – to say the least. But, the recent rulings that the lawsuit against Red Lobster claiming false advertising has merit and should proceed have shifted the burden of proof to the industry. From what I see, there’s a good chance at least some of the companies defending themselves are engaging in false advertising, although they may not realize what they’re doing. That’s because the burden is on companies that advertise their products to be truthful, not misleading, and, when appropriate, backed by science. In general, many current sustainability claims don’t meet those criteria. Here’s how:
Truthful: At face value, the eco-logo implies that the standards of the certifying body are being met. If they are not fully being met, that’s misleading. The same is true if the fish or seafood being sold or consumed doesn’t meet those standards. "Mass balance” approaches where the fish labeled as eco-certified may not be the actual fish caught using these higher sustainable standards also may be viewed as less than truthful. Substitution, or “seafood fraud,” is an even more blatant example of not being truthful. The buyer simply is not getting what they paid for.
Misleading: The term "sustainable" is generally understood by consumers, along with many chefs and food industry executives, to mean free of antibiotics, humanely raised, and more. Consumer and industry surveys conducted by Changing Tastes have repeatedly found this to be the case. The industry has benefited from this misunderstanding of the definition and has done very little to educate consumers or buyers otherwise.
The term "certified" also is commonly understood to mean a product meets specific standards, not that it will at some future date or has been swapped out for one that doesn’t. Imagine buying a hybrid car for good mileage and then finding out the manufacturer intends to build that car in future years and you’re actually driving their standard, gasoline-operated model. Again, using an eco-label on a product that doesn’t meet all standards is misleading.
Backed by science: We know that each certification scheme is based on scientific standards that assess the health of fisheries. The same is true for Seafood Watch and the other aquarium ratings based on their scientific findings. That means these schemes should show that overfishing is not occurring and the negative impact on non-target species, including bycatch and the aquatic habitat, are less than in non-certified fisheries or have improved under the certification requirements. We often challenge these organizations to show how they’ve improved conditions on and under the water and sometimes don’t get a relevant answer.
For all the time and money that NGOs, governments, and the industry put into these programs, there should be regular, public reporting on how they are improving ocean health and aquatic fauna populations. With that in place, the science-based improvements would be clear.
SeafoodSource: What is your reaction to the implication from Richman Law that more sustainability labeling-related lawsuits are forthcoming?
Wasserman: It’s absolutely true. There are a lot of seafood companies that are relying on third-party certifications as the basis for claiming their products are sustainable, and many large retailers and foodservice companies do the same. Now that the first cases have been found to have merit and have not been dismissed – which took substantial time and money on behalf of the plaintiff lawyers to prove – it’s cheaper and less risky for additional lawyers and lawsuits to file. And, once there is a ruling that finds a company guilty of false advertising, every other company that relies on the same certification will be at substantial risk of being sued. That is unless the industry starts changing its practices before the ruling occurs, and that’s both advisable and far from certain.
Our industry may be “circling the wagons” or believe the ruling is unfair – which I do not – but it is now the opinion of several courts that some prominent companies have the burden of proving their practices are indeed sustainable. The first ones to face that requirement – including Nissui-owned Gorton’s and ALDI – settled and changed their advertising rather than disclose what’s really taking place.
SeafoodSource: How scared should seafood companies really be of facing a lawsuit related to their sustainability marketing?
Wasserman: Seafood companies should be very scared if they are relying on a certification or eco-label that is being used today based on the promise of better practices in the future – also known as certification with conditions. This same promise of “market reward now for better performance later” is also part of the effort around many wild fishery improvement projects (FIPs) and aquaculture improvement projects (AIPs). That’s entirely different than other common certification standards and programs like kosher or organic where the standards must be met before, or by the time, the logo is placed on the package.
SeafoodSource: Is there any value left in eco-labels if they leave their users potentially liable for false claims?
Wasserman: Yes, but not the ones that the seafood industry commonly uses. Popular certifications like MSC and ASC grant certifications with conditions, and that is a practice that is creating liability for the firms that use them and rely on them for marketing to consumers. That is distinct from the many producers that get these certifications because a customer requires it. In that instance, it’s the customer – whether that’s a grocer like Kroger, a foodservice company like Sodexo, or a manufacturer that uses them in their marketing – that is creating the risk for themselves. If they require a certification, presumably, they know what they’re asking for.
SeafoodSource: How can the seafood industry safely market the sustainability of their products in the current legal environment?
Wasserman: The seafood industry can safely market the sustainability of their products by simply and accurately describing the sustainability practices they know are in place. That can include claims like, “We do not use any antibiotics to farm our seafood,” “Our fish are caught in U.S. waters or another location known to be well-governed,” or “We have confirmed no child, prison, or forced labor is used in producing our seafood products.” More recently, that may also include a note that products contain no Russian-caught fish or seafood.
The entire seafood industry can also benefit in business-to-business foodservice sales by noting the lower carbon footprint of seafood compared to many other animal proteins. But, this matters somewhat less to consumers than avoidance of antibiotics, forced labor, animal welfare, and other concerns, as we’ve found in our research at Changing Tastes.
Also, much of the industry’s effort has been going into traceability. That’s an enabling mechanism to know that a product is authentic, not that it’s actually sustainable. Traceability has become an end in itself for some, including those in the NGO community. But, it’s not a “holy grail,” and the proof of sustainability still has to be based on actual practices that result in much better outcomes for our ocean health, animal welfare, and the people working in our industry.
SeafoodSource: Any other insights from the data you’ve gathered on this topic?
Wasserman: Sustainability matters more than ever to consumers. The first companies to break from relying primarily on achieving certifications – now commonplace among many companies – may find they’ve suddenly gained entry to new buyers and markets and changed the market dynamics in their favor. Also, once one or two big buyers change their reliance or requirements for certification, it may drive out a lot of complexity, conditionality, and acceptance of risk from our industry, along with days and weeks of meetings to make sense of the current system.
Photo courtesy of Arlin Wasserman/Changing Tastes
