In a recent decision it looks like the Advertiser played a bit of chicken with the NAD. The Animal Defense Fund challenged advertising by Chicken of the Sea regarding its sustainable fishing practices including “dolphin safe”. (And while maybe not a trend, we have noticed more filings in recent years by public interest groups.)
Chicken of the Sea said there are laws regarding such claims, primarily the Dolphin Protection Consumer Information Act, which preempt the NAD’s review. Additionally the same Challenger asked the FTC to investigate these same claims previously and the FTC declined. The NAD has never taken kindly to preemption arguments. But where do you refer an advertiser that has already been to the FTC? NAD referred the case to the California Department of Consumer Affairs, as well as to the FTC. California is a particularly active state in the consumer protection area and has long shown an interest in environmental marketing claims. It will be interesting if the state takes up the referral that the FTC likely will decline. It will be more interesting to see if this state referral is a one-off given the unique facts of this case or whether we will see more such referrals. Lee Peeler was quoted in Law360 not too long ago saying he was reaching out to other government agencies like the EPA to let them know about the industry self-regulation program and invite appropriate referrals.