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The science of sustainable seafood, explained

Lawsuits are not good for seafood sustainability

For better or worse, litigation is a significant part of law-making in the U.S. Frivolous lawsuits are a staple of American culture, and seafood has recently seen an uptick. NGOs and activists filing lawsuits against industry interests based on sustainability claims are becoming more common. Some lawsuits are unfairly damaging the reputation of eco-certification authorities like the Marine Stewardship Council (MSC) and confusing consumers.

But fishing interests have recently punched back with lawsuits of their own. Lobster fishers in Massachusetts and Maine sued the Monterrey Bay Aquarium’s Seafood Watch program over last year’s downgrade of American lobster fisheries’ environmental sustainability. The Massachusetts lawsuit was withdrawn, but the Maine lobster fishers are proceeding with their suit.

Such lawsuits exercise an important checking mechanism in sustainability claims, but most recent examples have unreasonably challenged these science-based, peer-reviewed sustainability authorities. Ultimately, they confuse consumers and damage sustainable seafood’s reputation.

NGO and consumer-driven lawsuits against retailers and producers

In March 2023, Bumble Bee Foods and ConAgra Brands were sued for misleading consumers about the sustainability claims of their seafood products. The class action suits sought damages because the “Sustainability Promise” on all Bumble Bee and Conagra seafood labels “deceives and misleads reasonable consumers into believing the products are sourced from sustainable fishing practices.”

Plaintiffs took their accusations a step further, implicating the Marine Stewardship Council (MSC) certification itself, questioning its standard as one that cannot be considered sustainable. “It, therefore, shocks the conscience to learn that ConAgra uses the hollow certification provided by MSC, an organization which ConAgra knows or should know blatantly violates its own standards and puts the very ecosystem MSC feigns to protect in serious danger.”

Such accusations have become more frequent in recent years. In 2022, Aldi was sued over “Sustainably Farmed Salmon” claims that suggested BAP-farmed salmon was being falsely advertised. Costco recently came under fire for “dolphin-safe” claims on some of its Kirkland-brand canned albacore. Red Lobster was the first (and probably not the last) company sued for selling Homarus americanus as “Traceable. Sustainable. Responsible,” despite that fishery violating the Endangered Species Act for contributing to unusual mortality events for critically endangered North Atlantic right whales.

Journalists, non-profit organizations, and other conservation interest groups should continue to challenge and test the sustainability claims of public and private seafood companies. It creates healthy levels of accountability to customers and shareholders and sharpens the communication and verification practices of both the seafood companies and the certification authorities. However, there is a tipping point where such lawsuits can have broader negative impacts that reduce the incentive to pursue a sustainable seafood sourcing plan in the first place and hide truly unsustainable practices from the mainstream view.

 

Many of these recent seafood sustainability lawsuits have moved beyond the company itself to attack the credibility of the third-party eco-certification that the company achieved to legitimatize its claims. In the ConAgra lawsuit, the plaintiffs argued, “As ConAgra knew or should have known, MSC hands out this certification to those who use industrial fishing methods that injure marine life as well as ocean habitats with destructive fishing. MSC also allows its members to obtain their certification with a paid membership, creating a potential conflict of interest.”

The second point in this quote is easily debunked by a basic understanding of the MSC assessment process, which requires a fee from the fishery being assessed by an independent third-party auditor (not MSC). The MSC does collect labeling and logo partnership fees from the seafood companies in a certified supply chain. Still, those fees don’t reflect the actual fishery assessment, which the lawsuit questioned. This is a time-tested criticism of the MSC process. Here is an eight-year-old article that considered this same conflict of interest but quickly realized there is a system in place to avoid such issues, and here is an explanation from the MSC itself on the matter.

However, the first point in the quote is worth exploring further. The suit claims, “No reasonable consumer would believe the Products to be ‘sustainable’ if they knew of these fishing practices utilized in sourcing the Products.” Those practices are alleged to have been “the suffocation and crushing of sea lions, sharks, and whales caught in fishing nets that are then hauled onto fishing boats while severely injured or dead; the excessive capturing or harming of non-targeted prohibited species, such as snow crabs, and contributing to the failure of the populations.”

Herein lies a fundamental misunderstanding of the term “sustainable” regarding wild capture fisheries. Sustainable fisheries:

  • Do not overharvest. Fish populations must be left at levels that ensure their continuous, indefinite, productive, and healthy existence.
  • Minimize impact on the surrounding environment so that the marine habitat and other marine life can remain productive and healthy.
  • Have effective management, which ensures the first two bullets while also being adaptive to new environmental conditions and stressors.

These three bullets are not unique to the MSC. They are fundamental, universal pillars of global fishery management best practices. All sustainable certification and ratings authorities around the world adhere to these principles.

Most readers can understand the difference between “minimize impact” and “eliminate all impact.” The plaintiffs against ConAgra could not, however. They argued that the unintended bycatch of just one sea lion, shark, or whale should prevent a fishery from earning MSC certification and remove it from consideration as a sustainable fishery. However, such an argument would erode sustainability claims for any food product or commodity. All food is extractive in some way, even vegetables. Some research has estimated the unintended mortality of agriculture to be higher than many wild capture fisheries. The MSC never promised to eliminate all impacts of certified fisheries on the surrounding environment; they only promised to certify fisheries that minimize them and to assess fishery impacts to ensure they do not have an unsustainable effect on other species, such as sea lions, sharks, or whales. The MSC is not shy about suspending a certification if a fishery violates the Endangered Species Act or Marine Mammal Protection Act (ask the Gulf of Maine lobster fishery).

Once again, “sustainable” is the key to this relatively simple discrepancy in the definition provided by the MSC and the absolute language of the lawsuit. This suit is unlikely to result in any significant financial damages to the MSC or ConAgra. But it will chip away at the credibility of sustainable seafood claims in the eyes of many consumers who read the headline but did not take the time to look up the actual language and argument of the suit. When lawmakers question the definition of sustainable, they must be consistent with the definition used by marine scientists and fishery managers. Consumers should not be misled to believe their foods can come from sources that never leave an imprint on the surrounding habitat. This type of thinking creates extremism like Seaspiracy and lumps credible environmental authorities like the MSC with the worst parts of the global seafood industry. Such associations diminish the credibility of sustainable certifications and distract consumers from the truly unsustainable and irresponsible operators.

Fishing interests suing Seafood Watch

Seafood Watch’s decision to downgrade American Lobster to protect North Atlantic right whales was controversial—we have covered the story for years; but it was also perfectly justified by Seafood Watch’s standards and criteria. Seafood Watch ratings are an essential part of many buyers’ purchasing standards, something the industry should support. Fishers and producers benefit when more sustainable seafood becomes available to consumers—Seafood Watch’s ratings play an important role.

Legal action against science-based sustainability certifications and ratings – either by seafood interests or anti-seafood activists – is a slippery slope to a muddled consumer experience. Of course, we want a system that can challenge unsubstantiated claims, but we must respect the scoring criteria for such claims and not complain after the fact. Eco-certifications like MSC and sustainability ratings like Seafood Watch are available for public comment and feedback on any changes and publishing. All decisions are science-based and transparently presented. They never promised to save every animal or habitat from impact, and they should not be held to such unreasonable expectations. Hopefully, the recent surge in sustainability lawsuits will reveal the inconsistencies in the claims and deter future challengers from grabbing headlines and startling consumers.

Picture of Jack Cheney

Jack Cheney

Jack has sourced, sold, cooked, and sustainably certified seafood over the past 10 years. In addition to his contributions to Sustainable Fisheries UW, he is working to increase traceability into supply chains and educate consumers, chefs and retailers on the value of environmentally sustainable seafood. He earned a Master's in Marine Affairs from the University of Washington in 2015.

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