The Dolphin Protection Consumer Information Act permits marketers of tuna to promote their products as "dolphin safe" if the tuna is harvested using methods that are not prohibited by the Act.  For example, you can't claim that your tuna is "dolphin safe" if the tuna is caught through driftnet fishing.  

A consumer sued Costco, alleging that the company's claims that its canned tuna is "dolphin safe" are false and misleading on the grounds that the methods used to catch the tuna still do, in fact, harm or kill dolphins.  

Apparently in recognition of the fact that Costco's use of the "dolphin safe" logo complied with federal law, the plaintiff's claims -- under California law -- aren't based on the use of the logo itself.  Instead, the plaintiff bases her claims on other statements made by Costco on its packaging and in its advertising that the plaintiff alleges also communicate that the tuna was caught in a manner that isn't harmful to dolphins. 

In addition to promoting the tuna as "dolphin safe" on its packaging, the plaintiff alleged, for example, that Costco advertised the tuna as "100% Traceable from Sea to Shelf" and that the tuna was caught using "100% Monofilament Leaders & Circle Hooks."  The plaintiff also pointed to statements on Costco's website about its sustainable seafood sourcing efforts and about its participation in the International Seafood Sustainability Foundation.  

The court found that these statements were sufficient -- at least at the pleading stage -- to show that Costco has made its own heightened promise that the product is dolphin safe, which the court said would not be preempted by federal law. The court explained, "this case is not about whether Costco complied with DPCIA's labeling requirements.  It is about Costco's own promise to consumers that the product was dolphin-safe, and whether that statement was false, deceptive, or misleading." 

This case is a great reminder that, even if you're making an advertising claim that is expressly permitted and regulated by federal law, it doesn't necessarily mean that other similar claims will be preempted.  

Wright v. Costco Wholesale Corporation, 2023 WL 210936 (N.D. Cal. 2023).