[co-author: Stephanie Kozol]

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 wahich 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.