A lawsuit dismissed in 2013 alleging that the National Pork Board purchased the tagline “The Other White Meat” from the National Pork Producers Council for fraudulent reasons has been revived by the Court of Appeals for the D.C. Circuit. Humane Soc’y of the U.S. v. Vilsack, No. 13-5293 (D.C. Cir., order entered August 14, 2015). The lawsuit was initially dismissed because the plaintiffs, including the Humane Society of the United States (HSUS), failed to prove that they had standing to sue. Details of the dismissal appear in Issue 499 of this Update.
HSUS alleged that the board, a quasi-governmental entity, pays $3 million annually to license the trademarked phrase from the council, an industry trade group, not because the board intended to market pork with the slogan—which has not been in use since 2011—but rather because it sought to support the council’s lobbying efforts. Upon a de novo review, the appeals court found that HSUS’s co-plaintiff, a pork producer, has standing to pursue the claim. “His argument is simple,” the court noted. “He says that his return on his investment has been diminished by the Board’s unlawful payments of $3 million per year for Pork: The Other White Meat. If the Board stopped paying for the slogan, recouped funds unlawfully channeled to the Council, and devoted the money saved to more effective pork promotions, [the plaintiff’s] alleged harm would be at least partially redressed.” The pork producer further showed that the deal was not negotiated at arm’s length, “which increased the plausibility of allegations that the Board paid too much,”and that the slogan is no longer worth $3 million annually. Accordingly, the appeals court reversed the trial court’s decision and remanded for further proceedings.