In March 2023, Michigan Attorney General Dana Nessel’s office issued a letter to Kroger Co., urging the company “to add clear signage to your stores to help consumers understand which eggs, exactly, came from caged chickens.” The letter expressed concerns about Kroger’s confusing and misleading marketing of caged chicken eggs, stemming from a “February 2023 Data for Progress: Cracking Down on Kroger” report.
According to the report, Kroger customers demonstrated uncertainty surrounding Kroger’s use of “Grade A” and “Farm Fresh” labeling for its eggs. While neither label dealt with the rearing methods of the chickens, a poll showed that 41% of Kroger customers believed that the label “Farm Fresh” meant the chickens were not confined in cages — with 20% of Kroger customers believing the same about the “Grade A” label. An even larger percentage of polled Kroger customers (45% for “Farm Fresh” and 54% for “Grade A) indicated that they plainly did not know what “Farm Fresh” or “Grade A” even means.
At the very least, the polling indicated that most Kroger customers did not understand Kroger’s labeling, with a significant number actively misled by the labeling — particularly alarming given Kroger’s 2016 announcement that it would only sell cage-free eggs by 2025. Despite reporting in 2021 that it was “on track” to meet its pledge, Kroger reversed that commitment in 2022, citing concerns over demand and affordability. According to the report, “Kroger now anticipates transitioning only approximately 70 percent of its eggs to cage-free” or a “higher standard” by 2030. Ultimately, the report concluded that “[o]ver 40 percent of Kroger customers are buying eggs from caged hens, believing they are cage-free.”
Why It Matters
Companies need to provide clear and effective messaging — including labeling, proxy statements, sustainability reports, public-facing statements, etc. — to ensure compliance with state laws protecting consumers against deceptive and misleading sales practices. Allowing confusion to fester, even when unintentional, will only run the risk of placing a company squarely within the crosshairs of these laws.
Troutman Pepper State Attorneys General Team
|Ashley Taylor – Co-leader and Firm Vice Chair
Ashley is a partner in the firm’s Regulatory Investigations, Strategy + Enforcement (RISE) Practice Group and co-leader of the State Attorneys General practice. He focuses primarily on federal and state government regulatory and enforcement matters involving state attorneys general, the Consumer Financial Protection Bureau (CFPB), and the Federal Trade Commission (FTC). Drawing upon his experience as a deputy attorney general, Ashley has developed an extensive consumer practice with regard to the consumer financial services industry.
|Clay Friedman – Co-leader
Clay is a partner in the firm’s Regulatory Investigations, Strategy + Enforcement (RISE) Practice Group and co-leader of the State Attorneys General practice. Informed by nearly a decade in a state attorneys general office, and more than 25 years in private practice, Clay spends much of his time representing clients in singular or multistate regulatory actions. Clay has repeatedly led teams before all 50 state attorneys general and also handles matters with the Federal Trade Commission, the Consumer Financial Protection Bureau, and other local, state and federal agencies.
Judy is a partner in the firm’s Regulatory Investigations, Strategy and Enforcement (RISE) practice, based in the Richmond office. She brings experience serving as chair and commissioner of the Virginia State Corporate Commission (VSCC) from 2006 through 2022, which includes regulating the utilities, insurance, banking, and securities industries. She also served as Virginia’s attorney general from 2005-2006.
Stephen represents clients interacting with, and being investigated by, state attorneys general and other enforcement bodies, including the CFPB and FTC, as well as clients involved with litigation, particularly in heavily regulated industries.
A former deputy attorney general of New York, Avi applies his experience in bet-the-company matters, representing clients in criminal and civil investigations and enforcement actions before state and federal regulators, prosecutors and enforcement agencies.
Michael handles high-profile state attorneys general, FTC, and CFPB investigations by advising clients through these complex government inquiries. He assists clients through the entire life cycle of investigations, from regulatory enforcement through formal litigation.
As a former government official at the state and federal level, Ketan leverages extensive experience in the public and private sectors to skillfully represent client interests.
Tim is an attorney in the firm’s Regulatory Investigations, Strategy + Enforcement (RISE) Practice Group, with a primary focus on financial services litigation.
Chris represents clients in regulatory, civil and criminal investigations and litigation. In his practice, Chris regularly employs his prior regulatory experience to benefit clients who are interacting with and being investigated by state attorneys general.
Natalia is an associate in the firm’s business litigation practice. She recently received her J.D from the University of California, Davis School of Law.
Namrata is an associate in the firm’s Regulatory Investigations, Strategy + Enforcement (RISE) Practice Group, based in the Washington, D.C. office. Her work includes advising clients in regulatory investigations and compliance matters, in addition to representing clients in civil litigation matters.
Susan is an associate in the firm’s Consumer Financial Services Practice Group, and focuses her practice on consumer financial services matters. She has defended several of the nation’s largest and most influential financial institutions in individual and class action litigation involving the Telephone Consumer Protection Act (TCPA), Fair Credit Reporting Act (FCRA), Fair Debt Collection Practices Act (FDCPA), and other consumer privacy statutes. Susan also represents banks, fintechs, and financial services companies in connection with regulatory examinations and investigations brought by the CFPB, state attorneys general, and the California Department of Financial Protection and Innovation.
John represents clients in a wide variety of general and complex litigation matters, shareholder disputes, products liability, and privacy claims.
Whitney is an attorney in the firm’s Regulatory Investigations, Strategy + Enforcement (RISE) Practice Group. She represents clients facing state and federal regulatory investigations and enforcement actions, as well as related civil litigation.
Trey is an associate in the firm’s Regulatory Investigations, Strategy + Enforcement practice. His experience includes serving as a summer associate at the firm in 2021.
An experienced litigator, Daniel advises and represents regional, national and international companies, financial institutions and insurers in all facets of business, complex commercial and insurance coverage litigation. He is committed to working with his clients to find creative solutions to meet their needs.
Stephanie is Troutman Pepper’s senior government relations manager in the state attorneys general department.