UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

ANIMAL LEGAL DEFENSE FUND,

Plaintiff,

v. Civil Action No. 1:21-cv-01539 (CJN)

THOMAS J. VILSACK, Secretary, United States Department of Agriculture, et al.,

Defendants.

MEMORANDUM OPINION

Under the Poultry Products Inspection Act,

et seq., the Department of

Agriculture must prevent sellers of certain poultry products from misleading customers. The

Animal Legal Defense Fund asserts that the packaging of certain poultry products is misleading,

and therefore claims that the Department is violating both the Inspection Act and the

Administrative Procedure Act. See generally Am. Compl. (“Compl.”), ECF No. 12. But ALDF

lacks Article III standing, and the Court therefore grants the government’s Motion to Dismiss. See

Mot. to Dismiss (“Mot.”), ECF No. 15, at 7–24.

BACKGROUND

A. Regulatory Background

The Poultry Products Inspection Act prohibits the sale or transportation of “misbranded”

poultry products.

(a)(2). The Inspection Act was enacted upon Congress’s

determination that “[i]t is essential . . . that the health and welfare of consumers be protected by

assuring that poultry products distributed to them are wholesome, not adulterated, and properly

marked, labeled, and packaged.”

§451. A poultry product is “misbranded” within the meaning

1 of the Act if its label is “false or misleading.” Id. § 453(h). And the term “label” includes

“display[s] of written, printed, or graphic matter.” Id. § 453(s).

The Inspection Act gives the Department of Agriculture various tools to ensure that poultry

products comply with the statutory requirements. For example, the Department has the authority

to cooperate with and review the operations of the States, conduct inspections, promulgate

regulations for the operations of facilities and equipment involved in poultry products, and

determine certain labeling requirements. Id. §§454–57. And relevant to this case, “[i]f the

[Department] has reason to believe” that a poultry-product label “is false or misleading,” the

Department “may direct that such use be withheld unless the marking, labeling, or container is

modified in such manner as [it] may prescribe so that it will not be false or misleading.” Id.

§ 457(d).

The Department has implemented § 457(d) by requiring all final labels to be “submitted

for approval” to the Department’s Food Safety and Inspection Service (FSIS). See

(a). The submission to FSIS must include any “[s]pecial statements and claims” that will

appear on the final label, such as “claims, logos, trademarks, and other symbols on labels that are

not defined in the Federal meat and poultry products inspection regulations or the Food Standards

and Labelling Policy Book, . . . health claims, ingredient and processing method claims[,] . . .

structure-function claims, claims regarding the raising of animals, organic claims, and instructional

or disclaimer statements concerning pathogens . . . .”

§ 412.1(c)(3), (e). Only “generically

approved labels” are exempt from this pre-market review requirement. See id. §§ 412.1(a), 412.2.

“Generically approved labels are labels that bear all applicable mandatory labeling features (i.e.,

product name, safe handling statement, ingredients statement, the name and place of business of

2 the manufacturer, packer or distributor, net weight, legend, safe handling instructions, and nutrition

labeling) in accordance with Federal regulations.” Id. § 412.2(b).

B. Perdue’s Fresh Line Label

Perdue is a nationwide poultry-production company. Compl. ¶ 56. It is vertically

integrated, meaning it controls the production of chickens and turkey at every stage of their birth,

growth, slaughter, and processing. See id. ¶ 57. ALDF alleges that most of these chickens and

turkeys, including those raised for the Perdue Fresh Line, have little-to-no access to outside spaces

during their lives. See id. ¶¶ 58–64.

On May 24, 2018, Perdue submitted its first label application to FSIS for “Whole Chicken

and Chicken Parts Blanket” in its Fresh Line. Id. ¶ 65. The Court includes one of the sketches

included in this application below:

3 Id. at 14. FSIS approved the application on July 9, 2018. Id. ¶ 70. Its approval required the

removal of the word “healthy” from one sentence, but otherwise demanded no other edits. Id.

¶ 71. FSIS did not require any changes to the picture occupying the bottom-quarter of the package.

Id. ¶ 72. A nearly identical application for the Fresh “Cuts” Line, submitted on November 29,

2018, was approved shortly thereafter. See id. ¶¶ 73–78. Again, FSIS did not require any edits to

the graphic imagery included on the label. Id. ¶ 78.

“Perdue submitted a ‘blanket’ application for Fresh Line turkey products label that

contained nearly identical imagery to the Fresh Line chicken products label.” Id. ¶ 85. FSIS also

approved that application. Id. ¶ 86. The label looks something like this:

Id. at 19.

C. The Animal Legal Defense Fund and Marie Mastracco

The Animal Legal Defense Fund, or “ALDF,” is a nationwide animal-advocacy nonprofit

based in California. Id. ¶ 15. It counts “over 300,000 members and supporters” among its ranks.

4 Id. The organization’s mission is “to protect the lives and advance the interests of animals through

the legal system.” Id. ¶ 16. It does so “by advocating against cruelty to animals and for the

protection of animals in commercial enterprises, including animal agriculture.” Id. Specifically,

ALDF “focus[es] significant organizational resources on educating the public . . . and advocating

for greater legal protections for animals in agriculture.” Id.; see also id. ¶ 17. The organization

identifies a number of ways in which it accomplishes these goals. See id. ¶ 18 (listing, for example,

“conducting and publicizing undercover investigations of industrial farms and slaughterhouses,”

as well as “conducting webinars, educational events, and social media campaigns on matters

related to industrial farming”).

A “signature focus area[ ]” of ALDF’s work “is curbing the misleading labeling and

advertising of animal products.” Id. ¶ 19. ALDF explains that it achieves this goal “through public

education initiatives, media campaigns, legal resources and webinars, consumer protection

litigation, and legislative and regulatory advocacy.” Id. “ALDF has long engaged federal

regulators—including the USDA and the Federal Trade Commission—to advocate for the robust

enforcement of federal labeling and consumer protection laws” to eliminate such abuses. Id. ¶ 20

(parenthetical omitted).

One of ALDF’s “members” is Marie Mastracco. See id. ¶¶ 30–37. For the several months

preceding the filing of the Amended Complaint, Mastracco “regularly purchased Perdue’s Fresh

Line chicken breasts for her sick and elderly dog, Ozzie.” Id. ¶ 31. She “was influenced to

purchase” those products because the labels state that the chicken does not include any antibiotics.

Id. ¶ 32. “And seeing the graphic imagery, coupled with Perdue’s use of the term ‘cage free,’ Ms.

Mastracco interpreted the label to mean that the chickens raised for the products roamed freely on

pasture, under a shining sun. She was surprised and upset to learn that the Perdue Fresh Line

5 label’s representation about the chickens’ living environment is false, and that the birds are raised

entirely indoors.” Id.

“Because of her dog’s health condition, Ms. Mastracco feels compelled to continue

purchasing whole chicken breasts.” Id. ¶ 34. So long as the Department does not review the

graphic images on the meat labels to evaluate if they are false or misleading, however, “Mastracco

will continue to suffer a lack of confidence in whether any chicken labels convey accurate

descriptions of the product’s animal raising conditions.” Id.

D. ALDF’s Response to the Perdue Fresh Line Label

“On January 3, 2020, ALDF submitted a package of information to FSIS, explaining that

label imagery like Perdue’s, showing chickens and turkeys outside of a barn, under the sun, and

surrounded by vegetation . . . is misleading and contrary to how the animals were raised.” Id. ¶ 88.

Part of this package was a consumer survey of the Perdue Fresh Line labels, which ALDF

commissioned. Id. ¶ 89. The results of the survey showed that, of the about one thousand adults

polled, 29 percent thought the chicken labels meant that the chickens were “given access to a

barnyard/pasture,” while 19 percent thought that the turkey label meant that the turkeys “were

given access to a barnyard/pasture.” Id.

ALDF thus requested that FSIS “decline to approve any Perdue label applications that

contain the same or similar imagery.” Id. ¶ 90. To do otherwise, ALDF stated, “would allow

highly misleading product claims into the market.” Id.

FSIS disagreed. See id. ¶¶ 91–93. In a March 2020 letter, FSIS stated that “the images [at

issue] are not in violation [of] FSIS labeling requirements and can be used on product.” Id. ¶¶ 91–

92. This is because, FSIS explained, “[t]he photos, colors, and graphics used on the packaging are

not considered labeling claims and do not make the product label false or misleading.” Id. ¶ 93.

6 Thus, when in September 2020, Perdue again applied for sketch label approval of some

different Fresh Line products, FSIS approved them. See id. ¶¶ 95–98. The graphics were

“identical to the graphics in FSIS’s 2018 and 2019 approvals.” Id. ¶ 95.

E. ALDF’s Allegations

ALDF alleges here that the approval of the Perdue Fresh Line label applications violated

both the Administrative Procedure Act and the Poultry Products Inspection Act. See id. ¶¶ 100–

08. As ALDF puts it, “[c]ontrary to the bucolic scene of chickens on a pasture outside of a barn,

surrounded by verdant plants and sunshine, the chickens who are made into Perdue’s Fresh Line

of chicken products never have access to the outdoors in their short lives—let alone the freedom

to roam and forage on a pasture.” Id. at ¶ 79. And, it alleges, the Department knew this imagery

was misleading, since it had certified the complexes where Perdue raises its chickens. Id. ¶ 82.

ALDF claims that the Department has a pattern and practice of insufficiently reviewing

premarket labels, again in violation of the Administrative Procedure Act and the Inspection Act.

See id. ¶¶ 109–18. And it seeks declaratory and injunctive relief. See id. at 24.

As for its injury, ALDF asserts that the Department’s “decision to approve Perdue’s Fresh

Line Label, specifically, without reviewing its graphic matter to ensure that it was not misleading[,]

frustrates ALDF’s mission and impedes its work to empower consumers with truthful information

about animal products.” Id. ¶ 24. It alleges that it “has been and is compelled to spend more

resources uncovering, detecting, educating the public about, and bringing to [the Department’s]

attention the discrepancy in the graphics on Perdue’s Fresh Line labels and the ongoing harms

suffered by the animals Perdue raises and uses in those products.” Id. ¶ 25. Specifically, ALDF

alleges that is “has been forced to devote organizational time and resources to”:

• “[I]nvestigating the treatment of the chickens and turkeys raised for Perdue products”;

7 • “[C]onducting consumer surveys and research concerning the messages the Fresh Line labels are conveying”; • “[A]lerting FSIS to the facts of Perdue’s production methods and the results of the consumer surveys, and urging the agency to enforce the [Inspection Act’s] requirements to prevent such deceptive labeling”; and • “[D]rafting outreach and educational pieces to alert the public to how animals are raised for Perdue’s products.”

Id.

ALDF further alleges that its “campaign to end intensive confinement of animals used for

food and increase transparency in the labeling of animal products is also hindered by [the

Department’s] arbitrary and capricious and unlawful decision-making.” Id. ¶ 26. ALDF alleges

that by approving the Perdue labels in particular, the Department “ignore[d] the deceptive portrayal

of factory farmed birds as raised on open, grassy pasture.” Id. Thus, “[t]hrough this failure,”

ALDF alleges, the Department “acted unlawfully and limited the effectiveness of ALDF’s

advocacy to educate consumers about—and end—the intensive confinement of farmed chickens

and turkeys.” Id.

All of this, ALDF claims, has “impede[d] and frustrate[d] ALDF’s mission-driven

activities to curtail the inhumane, large-scale confinement of these birds.” Id. ¶ 27. The

organization notes that it has worked hard to pass and defend numerous statutes in various states

to end the use of cramped living quarters for chickens and turkeys. Id. So too with a proposed

bill in Congress, “which would place a moratorium on construction of factory farms like those

Perdue sources its birds from.” Id. But all these efforts, ALDF notes, “are dependent on public

awareness of, and energy to reform, the conditions these animals endure.” Id. Approving packages

like Perdue’s, it alleges, undermines those efforts. Id.

ALDF also alleges that “[a]s a result of [the Department’s] unlawful decision to ignore

graphic matter in reviewing and approving poultry product labeling applications, ALDF must

8 divert resources away from other projects to protect animals . . . in order to combat [the

Department’s] misunderstanding and misapplication of the [Inspection Act].” Id. ¶ 28. Should it

succeed here, “it can stop diverting resources to address [the Department’s] unlawful approval of

labels without any review of their graphic matter’s misleading messaging.” Id. ¶ 29.

LEGAL STANDARDS

A. Motion to Dismiss under Rule 12(b)(1)

A motion to dismiss under Federal Rule of Civil Procedure 12(b)(1) challenges this Court’s

subject-matter jurisdiction, Fed. R. Civ. P. 12(b)(1), including whether the plaintiff has standing.

See, e.g., Settles v. U.S. Parole Comm’n,

(D.C. Cir. 2005). Federal courts

have limited jurisdiction. Gunn v. Minton,

(2013). And a court presumes it

lacks jurisdiction “unless the contrary appears affirmatively from the record.” DaimlerChrysler

Corp. v. Cuno,

, 342 n.3 (2006) (quoting Renne v. Geary,

(1991)).

Thus, when a defendant contends that a plaintiff lacks standing, the plaintiff bears the burden of

demonstrating that it does. Arpaio v. Obama,

(D.C. Cir. 2015). When assessing

such a motion, “the court assumes the truth of all material factual allegations in the complaint and

construes the complaint liberally, granting plaintiff the benefit of all inferences that can be derived

from the facts alleged and upon such facts determines jurisdictional questions.” Kangarloo v.

Pompeo,

, 137 (D.D.C. 2020) (quoting Am. Nat’l Ins. Co. v. FDIC,

(D.C. Cir. 2011)) (quotation omitted) (alterations adopted).

The government moves to dismiss all of ALDF’s claims for lack of subject-matter

jurisdiction. See Mot. at 7–24.

9 B. Motion to Dismiss under Rule 12(b)(6)

A Rule 12(b)(6) motion to dismiss alleges a failure to state a claim. Fed. R. Civ. P.

12(b)(6). When assessing this type of motion, the Court must “treat the complaint’s factual

allegations as true . . . and must grant plaintiff the benefit of all inferences that can be derived from

the facts alleged.” Holy Land Found. for Relief & Dev. v. Ashcroft,

(D.C. Cir.

2003) (quoting Sparrow v. United Air Lines, Inc.,

(D.C. Cir. 2000)) (quotation

omitted). “[A] formulaic recitation of the elements of a cause of action,” however, “will not do”;

a complaint must provide more than mere labels and conclusions. Bell Atl. Corp. v. Twombly,

(2007). Put differently, a claim to relief must be “plausible on its face,” and the

pleadings must “nudge[ the] claims across the line from conceivable to plausible.”

.

The government moves to dismiss only Count II of the Amended Complaint—the “pattern

and practice” claim—for failure to state a claim. See Mot. at 24–28.

I. ALDF LACKS STANDING

A plaintiff must demonstrate that it has Article III standing. See, e.g., Public Citizen, Inc.

v. Nat’l Highway Traffic Safety Admin.,

, 1289 (D.C. Cir. 2007). That requires, of

course, that the plaintiff must “show injury in fact that was caused by the conduct of the defendants

and that can be redressed by judicial relief.” Id. (citing Lujan v. Defs. of Wildlife,

,

560–61 (1992)). When, as here, “the parties invoking federal jurisdiction are not ‘the object of the

government action or inaction’ they challenge,” “standing is ‘substantially more difficult to

establish.’ ”

(quoting Lujan,

).

ALDF advances two standing theories. It argues first that it has organizational standing.

See Pl.’s Resp. at 4–15, ECF No. 17. Second, and independently, it argues that it has associational

standing through Mastracco. See

at 15–32. The Court disagrees on both counts.

10 A. ALDF Lacks Organizational Standing

For an organization or association to have standing, it must show that, like an individual

plaintiff, it suffered an injury in fact that was caused by the defendant and can be redressed by a

favorable court decision. Food & Water Watch, Inc. v. Vilsack,

(D.C. Cir. 2015)

(quoting Equal Rights Ctr. v. Post Props., Inc.,

(D.C. Cir. 2011)). The injury-

in-fact requirement is perhaps the most difficult to show. It is not enough for an organization to

allege frustration of its purpose, for example; mere “frustration of an organization’s objectives ‘is

the type of abstract concern that does not impart standing.’ ”

(quoting Nat’l Taxpayers Union,

Inc. v. United States,

(D.C. Cir 1995)). Rather, the Court of Appeals “has

distinguished between organizations that allege that their activities have been impeded from those

that merely allege that their mission has been comprised.” Abigail All. For Better Access to

Developmental Drugs v. Eschenbach,

, 133 (D.C. Cir. 2006) (emphases added).

Thus, in order to establish standing as an organization, ALDF “must have ‘suffered a concrete and

demonstrable injury to [its] activities.’ ” Food & Water Watch,

(quoting People

for Ethical Treatment of Animals, Inc. v. U.S. Dep’t of Agriculture,

(D.C.

Cir. 2015) (“PETA”)) (alteration in original).

To determine if ALDF has organizational standing, the Court must engage in a two-part

inquiry. See

First, the Court must ask whether the Department’s action (or failure to act)

injured ALDF’s interests.

(quoting PETA, 797 F.3d at 1094). Second, the Court must

determine whether ALDF used its resources to counteract that harm. Id. (quoting PETA, 797 F.3d

at 1094).

But lurking in the caselaw behind this seemingly straightforward test lies some nuance,

particularly at the first prong. For example, to allege an injury to its interest, an organization like

11 ALDF “must allege that the defendant’s conduct perceptibly impaired the organization’s ability to

provide services in order to establish injury in fact.” Turlock Irrigation Dist. v. Fed. Energy Regul.

Comm’n,

(D.C. Cir. 2015) (quotations omitted) (emphasis added). That would

occur, for example, “when the defendant’s conduct causes an ‘inhibition of [the organization’s]

daily operations.’ ” Food & Water Watch,

(quoting PETA, 797 F.3d at 1094)

(alteration in original). But “an organization’s use of resources for litigation, investigation in

anticipation of litigation, or advocacy is not sufficient to give rise to an Article III injury.” Id.

(emphasis added). Similarly, “an organization does not suffer an injury in fact where it ‘expend[s]

resources to educate its members and others’ unless doing so subjects the organization to

‘operational costs beyond those normally expended.’ ” Id. at 920 (quoting Nat’l Taxpayers Union,

Inc.,

) (alteration in original) (emphasis added); accord Nat’l Taxpayers Union,

(explaining that an organization’s “self-serving observation that it has expended

resources to educate its members and others regarding [the contested government action] does not

present an injury in fact”). All of this makes good sense: If an organization cannot provide its

services because of some action—if its day-to-day operations are severely impacted—then it has

suffered an injury in fact. But if an action merely goes against an organization’s values—thus

leading the organization to engage in investigation, litigation, or other advocacy—that is not by

itself sufficient. In those circumstances, the organization itself has not been harmed, at least not

in the sense required by Article III.

ALDF argues that the Department’s actions and inaction have “perceptibly impair[ed]” its

“consumer education services and other mission-driven activities.” See Pl.’s Resp. at 5–9. As

ALDF puts it, “among the core activities it engages in on a day-to-day basis are various efforts to

educate consumers about the manner in which animals are raised for food, increase transparency

12 into the animal agriculture industry, and build public support for curbing cruel and unsustainable

animal raising practices.”

at 6 (citing Compl. ¶¶ 17–18).1 And the Amended Complaint details

how ALDF reaches out to other organizations, publishes consumer resources, and hosts

educational activities to further these goals. See Compl. ¶¶ 18–23. ALDF thus alleges that the

Department’s “failure to properly regulate poultry product labels impairs the organization’s ability

to provide effective consumer education and empowerment services” because “it allows

companies like Perdue to mislead consumers and hide the inhumane indoor confinement the

chickens and turkeys raised for the products endure.” Pl.’s Resp. at 6–7 (citing Compl. ¶¶ 23–24).

It further claims that the Department’s “challenged conduct also impedes ALDF’s legislative

efforts aimed at ending the inhumane, large-scale confinement of birds, because such initiatives

are dependent upon the public being aware of the conditions these animals suffer inside factory

farms and being motivated to advocate against them.”

at 7 (citing Compl. ¶¶ 26–27). Finally,

ALDF alleges that the Department’s “actions also preclude ALDF from preventing harms to

animals through its regularly used process of submitting agency complaints.”

(citing Compl.

¶ 26).

These allegations fall short of establishing that ALDF’s organizational interests were

harmed by the Department’s actions. Take ALDF’s first argument—that its ability to provide

“effective consumer education and empowerment services” has been impaired because the

Department “allows companies like Perdue to mislead consumers and hide the inhumane indoor

1 ALDF relies on a declaration from its Chief Programs Officer. See Decl. of Mark Walden, ECF No. 17-1. “In determining standing [on a motion to dismiss], we may consider materials outside of the complaint.” See Food & Water Watch,

(citing Coal. for Underground Expansion v. Mineta,

(D.C. Cir. 2003)). But the Court finds it unnecessary to rely on the Walden declaration because it repeats the same theories of injury as the allegations in Amended Complaint and does not affect the Court’s analysis.

13 confinement the chickens and turkeys raised for the products endure.”

at 6–7 (citing Compl.

¶¶ 23–24). This is not an allegation that the Department’s actions have “impaired the

organization’s ability to provide services.” Turlock Irrigation Dist.,

(emphasis

added). Nor is it an allegation that the Department’s conduct inhibits ALDF’s daily operations.

See Food & Water Watch,

. Rather, ALDF’s day-to-day activities can continue

unabated; nothing the Department has done impairs its ability to engage in the education and

empowerment services themselves. Instead, this is an allegation that the Department has taken

steps inconsistent with ALDF’s mission—which is insufficient for Article III standing. See

(“An organization must allege more than a frustration of its purpose because frustration of an

organization’s objectives ‘is the type of abstract concern that does not impart standing.’ ” (quoting

Nat’l Taxpayers Union,

)).

ALDF relies on Havens Realty Corp. v. Coleman,

(1982), in which an

organization called HOME challenged the alleged racial steering of Havens Realty Corp., the

owner of two apartment complexes in Virginia. See

at 366–68. HOME’s stated purpose was

“to make equal opportunity in housing a reality in the Richmond Metropolitan Area,” and it

provided housing-counseling services to local residents and engaged in the investigation and

referral of complaints concerning housing discrimination. See

. HOME alleged that “the

steering practices of Havens had frustrated the organization’s counseling and referral services,

with a consequent drain on resources.”

. Conducting “the same inquiry as in the case of

an individual,” the Supreme Court determined that HOME had organizational standing.

at

378–79. It explained that, as alleged, “petitioners’ steering practices have perceptibly impaired

HOME’s ability to provide counseling and referral services for low- and moderate-income

homeseekers,” thus establishing injury in fact.

. As the Court explained, “[s]uch concrete

14 and demonstrable injury to the organization’s activities—with the consequent drain on the

organization’s resources—constitutes far more than simply a setback to the organization’s abstract

social interests.”

ALDF’s claimed injury falls short of HOME’s. ALDF alleges that the Department’s

“decision to approve Perdue’s Fresh Line Label . . . without reviewing its graphic matter to ensure

it was not misleading frustrates ALDF’s mission and impedes its work to empower consumers

with truthful information about animal products.” Compl. ¶ 24. But this is a “setback to the

organization’s abstract social interests,” Havens Realty Corp.,

, not a claim that the

Department’s actions perceptibly impaired ALDF’s “ability to provide” its services, id.2

So too with ALDF’s second claim of injury in fact: that the Department’s “challenged

conduct also impedes ALDF’s legislative efforts aimed at ending the inhumane, large-scale

confinement of birds, because such initiatives are dependent upon the public being aware of the

conditions these animals suffer inside factory farms and being motivated to advocate against

them.” Pl.’s Resp. at 7 (citing Compl. ¶¶ 26–27). As alleged in the Amended Complaint, the

complained-of decisions “hindered” ALDF’s campaigns, Compl. ¶ 26, “limited the effectiveness

of ALDF’s advocacy to educate consumers,”

and “impede[d] and frustrate[d] ALDF’s mission-

driven activities,” id. ¶ 27. But the Court of Appeals has held that Article III standing does not

exist “when the only ‘injury’ arises from the effect of the regulations on the organizations’

lobbying activities.” Ctr. For Law & Educ. v. Dep’t of Educ.,

(D.C. Cir.

2 To be sure, the allegations in Havens Realty were far from specific. See Havens Realty Corp.,

(block quoting the relevant portion of the complaint). But Havens Realty was decided in 1982, decades before Twombly and Iqbal. The relevant lessons to draw from Havens Realty thus come from the Court’s discussion of an adequate injury in fact—in that case, that “petitioners’ steering practices have perceptibly impaired HOME’s ability to provide counseling and referral services for low- and moderate-income homeseekers.”

(emphasis added).

15 2005). And it does not exist when, as here, the “ ‘service’ impaired is pure issue-advocacy.” Id.

at 1162.

ALDF’s third alleged injury—that the Department’s actions “preclude ALDF from

preventing harms to animals through its regularly used process of submitting agency complaints,”

Pl.’s Resp. at 7 (citing Compl. ¶ 26)—is also inadequate. ALDF does not allege that it has been

prevented from complaining to the Department about Perdue’s labels, only that its complaint was

unsuccessful. ALDF has not been “deni[ed] . . . access to an avenue for redress” in a way that

“‘perceptibly impaired [ALDF’s] ability to . . . bring [regulatory] violations to the attention of the

agency.’ ” See Food & Water Watch, 808 F.3d at 920–21 (quoting PETA, 797 F.3d at 1095)

(explaining the difference between government action that leads an organization to expend more

resources educating the public, which is “an abstract injury to [an organization’s] interests,” and

government action that foreclosed an avenue of redress or restricted the flow of information that

an organization used to educate its members, which were injuries in fact). Instead, ALDF “has

alleged no more than an abstract injury to its interests,” id. at 920, which is insufficient for Article

III standing.3

3 To the extent that ALDF seeks to argue this case is like PETA, the Court also disagrees. To be sure, in PETA, one of the alleged harms was that PETA was precluded “from preventing cruelty to and inhumane treatment of [birds] through its normal process of submitting USDA complaints.” PETA, 797 F.3d at 1094. But that was because the USDA’s procedural decision there “deprived PETA of key information that it relies on to educate the public.” Id. (quotation omitted). The Court of Appeals thus concluded that “PETA’s alleged injuries—denial of access to bird-related AWA information including, in particular, investigatory information, and a means by which to seek redress for bird abuse”—were sufficient injuries. Id. at 1095. In so holding, it drew parallels to Action Alliance of Senior Citizens of Greater Philadelphia v. Heckler,

(D.C. Cir. 1986), a case in which the Court of Appeals found a concrete injury stemming from a restriction of information that a group used in their everyday activities. See PETA, 797 F.3d at 1094. ALDF has alleged no such restriction to information here, let alone one that impacts its everyday activities.

16 In sum, “conflict between a defendant’s conduct and an organization’s mission is alone

insufficient to establish Article III standing. Frustration of an organization’s objectives ‘is the type

of abstract concern that does not impart standing.’ ” Nat’l Treasury Emps. Union v. United States,

(D.C. Cir. 1996) (quoting Nat’l Taxpayers Union,

).4 That

this standard is difficult for lobbying or advocacy organizations to meet, see, e.g., Pl.’s Resp. at

14–15, is not an argument against the standard, but rather a recognition that lobbying organizations

are rarely injured by government action in a way that imparts Article III standing.

B. ALDF Lacks Associational Standing

An organization can also assert standing on behalf of one of its members. See Equal Rights

Ctr.,

. To have associational standing, an organization must show that it has a

member who would otherwise have standing to sue in his or her own right; that the interests the

organization seeks to protect are germane to its purpose; and that neither the claim asserted nor the

relief requested requires the participation of the individual member in the lawsuit. WildEarth

Guardians v. Jewell,

(D.C. Cir. 2013) (quoting Hunt v. Wash. State Apple

Advert. Comm’n,

(1977)). The dispute here focuses on the first prong alone.

The government begins by arguing that ALDF has failed to adequately plead that it is a

membership organization at all. See Mot. at 15–19. The Court disagrees. ALDF alleges that it is

a “national animal advocacy non-profit headquartered in Cotati, California, with over 300,000

members and supporters.” Compl. ¶ 15; accord Decl. of Mark Walden at ¶ 2. Without any

4 ALDF’s final argument on this point is that their allegations are “virtually identical” to those determined to be sufficient in PETA’s in People for Ethical Treatment of Animals, Inc. v. Perdue,

(D.D.C. 2020)). See Pl.’s Resp. at 7–9. That decision is not binding on the Court, and Court of Appeals precedent requires the conclusion that ALDF lacks standing here.

17 countervailing evidence, the Court must treat that factual allegation, supported by the declaration

of Mark Walden, as true at this stage.

In any event, as the Court of Appeals has explained, “an organization that has no members

in the traditional sense may nonetheless assert associational standing” if the organization “is the

functional equivalent of a traditional membership organization.” Fund Democracy, LLC v. Sec. &

Exch. Comm’n,

(D.C. Cir. 2002) (citing Hunt,

, 342–45). Hunt

had looked to three “indicia of membership”: “whether the individuals played a role in selecting

the organization’s leadership, in guiding the organization’s activities, and in financing the

organization’s activities.” Flyers Rights Educ. Fund, Inc. v. U.S. Dep’t of Transp.,

(D.C. Cir. 2020) (citing Hunt, 432 U.S. at 344–45). Thus, readers of a magazine are not

members of the magazine for associational-standing purposes, news watchers are not members of

a media watchdog group, and individual investors who had done some past work with Fund

Democracy were not members of that organization. See

at 1361–62 (citing Fund Democracy,

).

ALDF is nothing like these examples. As the government itself notes, “membership” in

ALDF requires a payment, which at least helps finance the organization’s activities. See Mot. at

19 n.4; see also Pl.’s Resp. at 16 (ALDF’s membership consists of individuals . . . who have

donated within the past five years.”; id. at 17 (Individual member financial contributions annually

account for around 80 percent of ALDF’s income stream.”). Additionally, ALDF’s members “play

a role in driving organizational activities and policies” through its National Leadership Counsel,

solicitation of membership input, and participating in ALDF’s activities of submitting complaints

and signing petitions. See Pl.’s Resp. at 17 (quoting Walden Decl. at ¶¶26-27). The Court finds

these allegations sufficient to establish this threshold requirement of associational standing.

18 The government’s second argument focuses on whether Mastracco has standing. ALDF

must, of course, allege sufficient facts to show that Mastracco herself suffered an injury in fact,

that there is a causal connection between the injury and the conduct complained of, and that it is

likely—not merely speculative—that the injury could be redressed by a favorable decision. Lujan,

504 U.S. at 560–61; see also The Wilderness Soc’y v. Norton,

(D.C. Cir. 2006)

(“In order to establish standing, [an organization] must demonstrate, as to each of its claims, that

at least one member meets the requirements of Lujan.”). It has failed to do so.

To recap the Amended Complaint, ALDF alleges that Mastracco has regularly purchased

Perdue’s Fresh Line chicken breasts for the last several months to feed “her sick and elderly dog,

Ozzie.” Compl. ¶ 31. “In deciding which chicken breasts to purchase, Ms. Mastracco considered

factors such as whether the chickens raised for the meat were healthy, given any chemical

hormones, and treated humanely. She relied on the products’ labels to provide information about

these factors.”

But what ultimately led her to purchase these particular chicken breasts was

her concern about antibiotics. On this, the Amended Complaint could not be clearer: “Ms.

Mastracco was influenced to purchase Perdue’s Fresh Line chicken products by label claims about

no antibiotics.” Id. ¶ 32.

To be sure, ALDF does allege that Mastracco considered the imagery on the package.

“[S]eeing the graphic imagery, coupled with Perdue’s use of the term ‘cage free,’ ” ALDF alleges,

“Ms. Mastracco interpreted the label to mean that the chickens raised for the products roamed

freely on pasture, under a shining sun.” Id. She was not pleased to learn this georgic scene had

no basis in reality: “She was surprised and upset to learn that the Perdue Fresh Line’s label’s

representations about the chickens’ living environment is false, and that the birds are raised entirely

indoors.” Id. Despite this newfound knowledge, though, Mastracco still “feels compelled to

19 continue purchasing whole chicken breasts.” Id. ¶ 34. She thus “continue[s] to suffer a lack of

confidence in whether any chicken labels convey accurate descriptions of the product’s animal

raising conditions.” Id. (emphasis in original). ALDF also alleges that the Department’s “unlawful

approvals of Perdue’s Fresh Line labels caused Ms. Mastracco’s consumer harm.” Id. ¶ 33.

ALDF has failed to allege sufficient facts showing that Mastracco is suffering an injury in

fact. “A concrete injury is direct, real, and palpable—not abstract.” Food & Water Watch, Inc.,

(quotations omitted). Mere disappointment that a cartoon depiction of chickens

in the field does not match reality, without more, is insufficient. See Spokeo, Inc. v. Robins,

(2016) (“A ‘concrete’ injury must be ‘de facto’; that is, it must actually exist.”).

This might, perhaps, be a different case if purchasing free-roaming chicken was Mastracco’s aim—

if that was the factor that drew her to purchase Perdue’s Fresh Line products in the first place—

and she was now paralyzed from purchasing future poultry products through lack of faith in the

accuracy of their labels. But that is not this case. “Ms. Mastracco was influenced to purchase

Perdue’s Fresh Line chicken products by label claims about no antibiotics.” Compl. ¶ 32.

Nor is it enough to allege that Mastracco has continued (and presumably will continue) to

purchase Perdue Fresh Line chicken. As the Amended Complaint makes clear, Mastracco has

been disabused altogether of any notion that the cartoon chickens represent reality. See

(Mastracco “learn[ed] that the Perdue Fresh Line label’s representation about the chickens’ living

environment is false, and that the birds are raised entirely indoors”). She thus cannot rely on that

imagery—and be harmed by such reliance—since she is now equipped with this knowledge. Cf.

Nat’l Family Planning & Reprod. Health Ass’n v. Gonzales,

(D.C. Cir. 2006)

(“We have consistently held that self-inflicted harm doesn’t satisfy the basic requirements for

standing. Such harm does not amount to an ‘injury’ cognizable under Article III.”). Since she

20 never relied on the label’s imagery to make her purchasing decision in the first place, she certainly

cannot be harmed by relying on it in the future, given the knowledge she now has.

ALDF does allege that Mastracco now lacks confidence in the accuracy of all chicken

labels. And “concrete” is not necessarily synonymous with “tangible,” as the Supreme Court has

explained, which gives some background appeal to this observation. Spokeo,

.

But none of the allegations suffices to show a concrete harm to Mastracco. As the Eleventh Circuit

has recently explained, “while a concrete injury needn’t necessarily be ‘tangible,’ the Court has

consistently held that purely psychic injuries arising from disagreement with government action—

for example ‘conscientious objection’ and ‘fear’—do not qualify.” Gardner v. Mutz,

(11th Cir. 2020) (citations omitted). Equipped with the knowledge of how the

Department allegedly reviews and approves poultry labels, and disagreeing with how it is done, is

that kind of injury.

ALDF primarily relies on two cases to argue to the contrary: Davidson v. Kimberly-Clark

Corp.,

(9th Cir. 2018) and Richardson v. L’Oreal USA, Inc.,

(D.D.C. 2013). See Pl.’s Resp. at 22–32.

Davidson, of course, is not binding here. In any event, and whether or not it correctly

interprets Article III’s demands, its holding is inapplicable. Davidson held that a consumer had

standing because she “will be unable to rely on the product’s advertising or labeling in the future,

and so will not purchase the product although she would like to”; and “she might purchase the

product in the future, despite the fact it was once marred by false advertising or labeling, as she

may reasonably, but incorrectly, assume the product was improved.” Davidson, 889 F.3d at 969–

21 70. Here, in contrast, ALDF alleges that Mastracco will likely purchase chicken in the future, and

does not allege that that she will do so under the assumption that the product has improved.5

As for Richardson, which is also not binding, that decision dealt with a proposed class-

action settlement regarding the allegedly misleading nature of certain L’Oréal products, which said

“salon-only” although they were not only sold in salons. Richardson, 991 F. Supp. 2d at 187–188.

The court “conclude[d] that plaintiffs have standing despite their knowledge of the ‘salon-only’

misrepresentation because of the likelihood of future harm,” as even consumers with such

knowledge “will be harmed—without an injunction—by not being able to rely on the ‘salon-only’

label with any confidence.”

. Again, this case is distinguishable. Unlike in Richardson,

where the “salon-only” label had “deceived and misled” the plaintiffs, see

(quotation

omitted), Mastracco was never misled in the first place. Not once did she purchase the poultry

products at issue because she relied on the cartoon chickens or turkeys on the package. And now

that she knows they are not accurate, she will not rely on them going forward.

* * *

Access to federal courts is limited to parties who were actually injured by the challenged

government action. Neither ALDF nor Mastracco have shown that to be the case. The Court will

thus grant the government’s Motion to Dismiss the Amended Complaint, ECF No. 15, and deny

as moot the government’s original Motion to Dismiss the Complaint, ECF No. 10. And because

5 Davidson also acknowledged that the question of standing was “a close question.” Davidson,

. And subsequent Ninth Circuit decisions have treated Davidson’s categories as essentially exclusive. See, e.g., In re Coca-Cola Prod. Mktg. & Sales Practice Litig., No. 20- 15742,

, at *2 (9th Cir. Aug. 31, 2021) (“None of the plaintiffs in this case allege a desire to purchase Coke as advertised, that is, free from what they believe to be artificial flavors or preservatives, nor do they allege in any other fashion a concrete, imminent injury. . . . Under governing law, such an abstract interest in compliance with labeling requirements is insufficient, standing alone, to establish Article III standing.”).

22 ALDF lacks standing, the Court need not address the argument that Count II of the Amended

Complaint fails to state a claim. An appropriate Order will follow.

DATE: November 14, 2022 CARL J. NICHOLS United States District Judge

23