Does "Dolphin Safe" Mean That No Dolphins Were Harmed? - Advertising, Marketing & Branding - United States

[Gunnar Larson]

No St. Bernards were harmed in sending this message.

https://www.mondaq.com/unitedstates/advertising-marketing--branding/1277014/does-dolphin-safe-mean-that-no-dolphins-were-harmed


The Dolphin Protection Consumer Information Act permits marketers of tuna
to promote their products as "dolphin safe" if the tuna is harvested using
methods that are not prohibited by the Act. For example, you can't claim
that your tuna is "dolphin safe" if the tuna is caught through driftnet
fishing.

A consumer sued Costco, alleging that the company's claims that its canned
tuna is "dolphin safe" are false and misleading on the grounds that the
methods used to catch the tuna still do, in fact, harm or kill dolphins.

Apparently in recognition of the fact that Costco's use of the "dolphin
safe" logo complied with federal law, the plaintiff's claims -- under
California law -- aren't based on the use of the logo itself. Instead, the
plaintiff bases her claims on other statements made by Costco on its
packaging and in its advertising that the plaintiff alleges also
communicate that the tuna was caught in a manner that isn't harmful to
dolphins.

In addition to promoting the tuna as "dolphin safe" on its packaging, the
plaintiff alleged, for example, that Costco advertised the tuna as "100%
Traceable from Sea to Shelf" and that the tuna was caught using "100%
Monofilament Leaders & Circle Hooks." The plaintiff also pointed to
statements on Costco's website about its sustainable seafood sourcing
efforts and about its participation in the International Seafood
Sustainability Foundation.

The court found that these statements were sufficient -- at least at the
pleading stage -- to show that Costco has made its own heightened promise
that the product is dolphin safe, which the court said would not be
preempted by federal law. The court explained, "this case is not about
whether Costco complied with DPCIA's labeling requirements. It is about
Costco's own promise to consumers that the product was dolphin-safe, and
whether that statement was false, deceptive, or misleading."

This case is a great reminder that, even if you're making an advertising
claim that is expressly permitted and regulated by federal law, it doesn't
necessarily mean that other similar claims will be preempted.

Wright v. Costco Wholesale Corporation, 2023 WL 210936 (N.D. Cal. 2023).
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