A California federal court tossed a lawsuit filed by two nonprofit organizations against Sanderson Farms, Inc., over claims that their chicken products are “100% Natural.”

Since reasonable consumers would interpret this phrase to mean that the chickens were raised without any exposure to antibiotics, Friends of the Earth and the Center for Food Safety alleged in their 2017 complaint that Sanderson’s claim was misleading because the chickens were raised with antibiotics but were taken off them prior to sale.

The court denied the defendant’s first motion to dismiss, and the parties conducted nonexpert discovery. Thereafter, Sanderson filed a second motion to dismiss, arguing that the evidence gathered could not establish the plaintiffs’ standing because they failed to allege an injury.

In response, the plaintiffs pointed to published reports ranking U.S. restaurant chains on their antibiotic policies and practices, various press releases, blog posts, social media efforts, emails to members of their groups, and consultant costs.

The alleged injuries divided into three categories: actions taken pre-litigation after the plaintiffs became aware of Sanderson’s ads on August 1, 2016; actions taken after that date and prior to filing the lawsuit on June 22, 2017; and actions taken subsequent to filing the case. U.S. District Court Judge Richard Seeborg agreed with the defendant that none of the time periods contained an injury on which the plaintiffs could base their suit.

The plaintiffs represented in their depositions and declarations that they did not divert resources to counteract Sanderson’s advertising prior to August 1, 2016 (category one), so they could not rely upon any actions during that period to support their standing to sue, the court said.

Considering the period between August 1, 2016, and June 22, 2017 (category two), discovery showed that the plaintiffs’ actions were not a reaction to the defendant’s ads, the court found. “Instead, they were continuations of non-Sanderson-specific initiatives plaintiffs were undertaking in furtherance of their missions to address antibiotic use generally,” the court wrote. “Moreover, many of plaintiffs’ cited activities neither referenced Sanderson nor its advertising.”

For example, the plaintiffs did not write any letters to Sanderson or its customers complaining about the company’s advertising; produced no press release, blog post or article referencing Sanderson’s ads prior to the lawsuit; never engaged in protests at Sanderson over advertising; and did not reference Sanderson’s advertising as part of their ongoing campaign to persuade national chains to stop purchasing meats from routine antibiotics administrators.

“Perhaps most damaging to plaintiffs’ cause are their own depositions where they admit they did not divert resources because of Sanderson’s advertising and state they would have undertaken the same advocacy activities—including advocating against the use of antibiotics in animal agriculture and discouraging consumers from purchasing meat raised with routine antibiotics—even if Sanderson had never aired the challenged advertising,” Judge Seeborg wrote.

This left the plaintiffs without an injury, the court said.

“This is a false advertising case, and plaintiffs must establish that their alleged injury is traceable to the challenged ads at issue,” the court wrote. “Instead, the record confirms they were incurring ordinary program costs regardless of Sanderson’s advertising, and such expenses cannot be transformed into an injury-in-fact under Article III.”

Finally, plaintiffs’ post-litigation actions (category three) also failed to provide the basis to sue, despite the plaintiffs’ contention that they suffered an ongoing injury, the court added. “Standing must be present at the time suit is brought,” Judge Seeborg wrote. “If jurisdiction is defective at the lawsuit’s inception, it cannot be cured thereafter.”

The court granted the defendant’s motion to dismiss the suit without leave to amend.

To read the order in Friends of the Earth v. Sanderson Farms, Inc., click here.

Why it matters: The defendant used the plaintiffs’ own actions to get the false advertising lawsuit dismissed. With the evidence establishing that the plaintiffs would have engaged in the same activity regardless of the defendant’s advertising, they failed to establish an injury traceable to the challenged ads.