Tyson Fresh Meats’ so-called “prime pork” is at the center of a proposed false advertising class action that alleges the meat supplier and co-defendant Fresh Market have intentionally misled and confused consumers with claims that the product is comparable in quality and prestige to USDA-graded prime beef.
Prime? Hardly, plaintiffs say.
As the 47-page lawsuit tells it, the Tyson Foods subsidiary in February 2017 attempted to increase sales by “trad[ing] off of the known quality and prestige of USDA Prime Beef” in creating a line of pork products called “Chairman’s Reserve Prime Pork.” The 10 plaintiffs behind the suit allege that with the “prime pork’s” creation came a marketing campaign with which Tyson, through retailers such as Fresh Market, aimed to “mislead and confuse consumers” as to the true quality of the product. According to the lawsuit, Tyson’s “prime pork” is, at the very least, purposefully mislabeled online and in stores.
“In reality, there is no such thing as ‘Prime’ Pork,” the lawsuit charges. “The Product is not graded by the USDA as ‘Prime.’ In fact, the USDA does not provide grades for pork in a fashion similar to beef, as set forth below.”
The case out of Florida federal court claims consumers would not have paid as much as they did for Tyson’s “prime pork” had they known there was no such thing as “prime” pork, or that the product was not graded as “prime” by the USDA.
A primer on Tyson’s rollout of “prime pork”
The five-count lawsuit explains that Tyson, at the Annual Meat Conference in 2017, touted its Chairman’s Reserve Prime Pork as “an all-natural, minimally processed, hand-selected and hand-trimmed” line of pork that consumers would have no difficulty recognizing as a top-shelf product. Tyson vice president Kent Harrison even went so far as to “broadly compare” the company’s “prime pork” to USDA prime beef, assuring the following: “People know of ‘prime.’ They get it right away.” This apparent piggybacking onto the favorable reputation of USDA prime beef was to be a key component in Tyson’s marketing and advertising of its “prime pork,” the case says.
A little more than a year after the 2017 Annual Meat Conference, however, Tyson’s quarterly report allegedly reflected an eight-percent drop in income for the year’s first half. More specifically, Tyson’s pork segment, according to the case, reported a drop in sales volume coupled with higher livestock, labor and freight costs amid reduced operating income. On the other side of the coin, however, Tyson’s bread-and-butter beef, chicken and prepared foods arms reported an increase in sales volume during the same time frame, according to the complaint.
The lawsuit explains that in response to declining profits from its pork business, Tyson would bolster its marketing efforts and roll out what the suit calls a program to “influence the marketing strategies of retailers carrying the product”—dubbed the “Chairman’s Reserve Prime Pork Certified Butcher Program.”
Tyson looked to use the free program to educate retailers’ meat departments on the company’s brand and product offerings, the lawsuit says. All told, according to the plaintiffs, the program spoke to a larger effort by Tyson to not simply provide its “prime pork” to retailers, but to further engage in marketing and advertising deliberately designed to deceive and mislead consumers.
Just like prime beef?
Co-defendant Fresh Market, Inc. was one such retailer with whom Tyson Fresh worked to effectively convince consumers that “prime pork” was of the same caliber as true USDA-grade prime beef, the lawsuit says. In a May 2019 press release, Fresh Market boasted that Chairman’s Reserve Prime Pork was “just like prime beef” in terms of its alleged place in the “upper-echelon of quality,” complete with its “superior marbling” and “visible pink color.” Coinciding with this push were social media posts that contained the same message: Chairman’s Reserve Prime Pork stands eye to eye with USDA-grade beef.
Despite Tyson and Fresh Market’s claims to the contrary, however, the former’s “prime pork” exists nowhere near USDA prime beef on the spectrum of meat quality, the plaintiffs argue. For one, the plaintiffs say, the USDA does not grade pork as “prime.” According to the agency, the case says, pork is given no USDA grade because it is “generally produced from young animals that have been bred and fed to produce more uniformly tender meat.” Moreover, the lawsuit notes that though the USDA from 2017 through 2018 sought public comment on possible revisions to the United States Standards for Grades of Pork Carcasses, such changes were ultimately rejected due in part to industry leaders’ concerns.
“Based on comments received,” the lawsuit says, “the USDA rejected the revised pork grading standards citing, inter alia, comments stating that ‘implementation of the revised pork standards would be impractical, in part because the technology available to accurately assess quality factors in pork is not yet effective…’ and concern that application of a revised standard ‘would be misleading.’”
“Prime” concerns with Tyson, Fresh Market’s word choice
In the face of USDA and the greater meat industry’s concerns with regard to potential customer confusion, the defendants have nonetheless “deceptively utilized” the term “prime” in their marketing and advertising for Tyson’s Chairman’s Reserve Prime Pork, the lawsuit claims, stressing that the companies’ conduct has had the effect of falsely implying a relation between beef and pork grading standards. Included in the complaint are images from Tyson’s website that depict photos of supposedly true USDA prime beef next to the company’s “prime pork,” a tactic the plaintiffs decry as “specifically intended” to confuse and mislead consumers.
Importantly, the case sticks on the fact that the top portion of the labeling for Tyson’s Chairman’s Reserve Prime Beef, which is reportedly USDA graded, “omits any reference to USDA grading” and states only the product name. Per the suit, reference to the beef being USDA graded appears in “small, gray font on a gray background in the bottom portion of the label.” Leaving out the term “USDA” before “Prime Beef,” according to the plaintiffs, “serves to create confusion” between Tyson’s purportedly premier beef and pork products despite the latter having no such governmental grading.
The case argues that Tyson and Fresh Market’s liberal use of the term “prime” in conjunction with the position of the meat supplier’s pork is wholly deceptive and serves only to ride the coattails of the status granted to genuine USDA-graded prime beef products. From the lawsuit:
Defendants interchangeably use the term Prime for their Prime Beef and their Prime Pork, despite the fact that the USDA has strict specifications and criteria for beef to qualify as Prime Beef, while the USDA does not grade pork as Prime. Defendants’ interchangeable use of the term Prime for both their Prime Beef and their Prime Pork is misleading in that Prime Beef has earned the designation of Prime by satisfying strict specifications and criteria of the USDA, while Prime Pork cannot earn (and has not earned) the designation of Prime by the USDA.”
Who’s covered by this lawsuit?
The lawsuit looks to cover a class of consumers who bought Tyson’s “prime pork” product on or after February 1, 2017. Similarly, the case looks to certify a sub-class of consumers who bought Tyson’s “prime pork” from Fresh Market on or after May 1, 2019 in Alabama, Arkansas, Connecticut, Delaware, Florida, Georgia, Illinois, Indiana, Kentucky, Louisiana, Maryland, Massachusetts, Mississippi, New Jersey, New York, North Carolina, Ohio, Oklahoma, Pennsylvania, South Carolina, Tennessee and Virginia.