Animal Legal Defense Fund, Inc. v. Thomas Vilsack

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 3, 2023 Decided August 9, 2024

No. 23-5009

ANIMAL LEGAL DEFENSE FUND, INC.,

APPELLANT

v.

THOMAS J. VILSACK, SECRETARY, UNITED STATES

DEPARTMENT OF AGRICULTURE, ET AL.,

APPELLEES

Appeal from the United States District Court

for the District of Columbia

(No. 1:21-cv-01539)

Daniel H. Waltz argued the cause and filed the briefs for

appellant.

Graham W. White, Attorney, U.S. Department of Justice,

argued the cause for appellees. With him on the brief were

Brian M. Boynton, Principal Deputy Assistant Attorney

General, and Gerard J. Sinzdak, Attorney.

Before: SRINIVASAN, Chief Judge, PILLARD and KATSAS,

Circuit Judges.

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Opinion for the Court filed by Chief Judge SRINIVASAN.

Concurring opinion filed by Circuit Judge KATSAS.

SRINIVASAN, Chief Judge: The Poultry Products

Inspection Act authorizes the Department of Agriculture to

prohibit the use of false or misleading labels on poultry

products. Certain product labels—including those bearing

claims about the conditions in which animals are raised—must

be approved by the Department before hitting grocery store

shelves.

This case concerns the Department’s approval of labels for

Perdue’s “Fresh Line” chicken and turkey products. Although

Fresh Line chickens and turkeys, according to allegations we

accept as true, were raised strictly indoors, the approved

product labels depict birds freely roaming outside a barn. The

Animal Legal Defense Fund asked the Department to reject any

Perdue labels containing that kind of imagery. ALDF claimed

that the imagery misleads consumers into thinking the birds

were raised in pastures, when they in fact spent the entirety of

their lives in overcrowded warehouses. The Department

declined ALDF’s request to disapprove the labels.

ALDF then sued, claiming that the Department violated

the Poultry Products Inspection Act and the Administrative

Procedure Act by approving the Fresh Line labels and by

purportedly adopting a policy of evaluating only the text—not

any graphics—on poultry-product labels. The district court

concluded that ALDF failed to establish standing to challenge

the Department’s actions. We agree.

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I.

A.

Congress enacted the Poultry Products Inspection Act

(PPIA) to ensure that poultry products are “wholesome, not

adulterated, and properly marked, labeled, and packaged.” 21

U.S.C. § 451. The PPIA makes it unlawful to sell poultry

products with “false or misleading” labeling, id. §§ 453(h)(1),

457(c), 458(a)(2), and empowers the Department of

Agriculture to prevent the “use” of “any marking or labeling”

it “has reason to believe . . . is false or misleading in any

particular,” id. § 457(d). The statute defines “labeling” to

include any “written, printed, or graphic matter” on a product’s

“container[] or wrapper[].” Id. § 453(s).

The Department has delegated enforcement of the PPIA’s

labeling requirements to the Food Safety and Inspection

Service (FSIS). By regulation, FSIS must approve certain

labels before a company can use them in the market. 9 C.F.R.

§ 412.1(a). Among the labels requiring pre-market approval

are those including “special statements and claims,” a category

encompassing “claims regarding the raising of animals.” Id.

§ 412.1(c)(3), (e)(1)(iii). To get such a label approved, a

company must submit to FSIS an application that can include

a “sketch” label—that is, a “concept of a label . . . that clearly

reflect[s] and project[s] the final version of the label” that will

appear on grocery shelves. Id. § 412.1(a), (d).

B.

Because the government “challenge[s] standing at the

pleading stage without disputing the facts alleged in the

complaint, ‘we accept the well-pleaded factual allegations as

true and draw all reasonable inferences from those allegations

in the plaintiff’s favor.’” In re U.S. Off. of Pers. Mgmt. Data

4

Sec. Breach Litig., 928 F.3d 42, 54 (D.C. Cir. 2019) (per

curiam) (quoting Arpaio v. Obama, 797 F.3d 11, 19 (D.C. Cir.

2015)). Those allegations are as follows.

On several occasions in 2018 and 2019, Perdue

submitted—and FSIS approved—sketch labels for Perdue’s

Fresh Line chicken and turkey products. Each of those labels

contained essentially identical graphics: a cartoon depiction of

chickens or turkeys outside a barn, beneath a full yellow sun,

surrounded by corn and other plants. On some labels—such as

the one below, included in Perdue’s application for Fresh Line

chicken breasts—the birds appear to be pecking away amid the

leafy vegetation, and the label advertises the chickens as having

been “raised cage free.” See Am. Compl. 14 (J.A. 66). FSIS

approved all Fresh Line labels without mandating any changes

to the graphics depicting birds roaming outside a barn. See id.

¶¶ 71–72, 78, 97–98 (J.A. 67, 69, 73).

In January 2020, after FSIS had approved Fresh Line

labels for both chicken and turkey products, the Animal Legal

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Defense Fund (ALDF) asked FSIS to “decline to approve any

Perdue label applications that contain the same or similar

imagery.” Id. ¶¶ 88–90 (J.A. 71). ALDF is a national animal

advocacy organization, and its request to FSIS was part of its

mission to combat the “animal cruelty” and “societal ills

caused by factory farming.” Id. ¶¶ 15–16 (J.A. 56). ALDF

contended that the imagery on Fresh Line labels depicting birds

outside is fundamentally “misleading and contrary to how the

animals were raised.” Id. ¶ 88 (J.A. 71). According to ALDF,

the “bucolic scene” on the labels falsely suggests that the birds

have “access to the outdoors,” when they in reality spend the

entirety of their “short lives” inside what amounts to a

“crowded warehouse.” Id. ¶¶ 63, 79 (J.A. 66, 69).

FSIS rejected ALDF’s request. In a March 2020 letter,

FSIS explained that the labels’ imagery did not “violat[e]”

FSIS’s “labeling requirements” because the “photos, colors,

and graphics used on packaging are not considered labeling

claims and do not make the product label false or misleading.”

Id. ¶¶ 91–93 (J.A. 72). ALDF inferred from FSIS’s letter that

FSIS does not evaluate imagery depicting birds’ living

conditions on any label—from Perdue or any another

company—as part of its pre-market review process. See id.

¶ 94 (J.A. 72). Later that year, Perdue submitted, and FSIS

again approved, labels for more Fresh Line products, each of

which bore essentially identical graphics to those ALDF had

urged FSIS to find misleading.

C.

In June 2021, ALDF sued the Secretary of Agriculture, the

Department, and FSIS. ALDF asserts two claims. First, it

alleges that FSIS’s approvals of Perdue’s Fresh Line labels

violated the PPIA and the APA. Second, ALDF claims that

FSIS has a “pattern and practice” of not reviewing the “graphic

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matter or imagery” on poultry-product labels, including

imagery that “show[s] animals in natural, outdoor settings,”

thereby again ostensibly violating the PPIA and APA. Am.

Compl. ¶¶ 109–18 (J.A. 74–75). The complaint seeks

declaratory and injunctive relief.

The government moved to dismiss both claims on the

ground that ALDF lacks standing to pursue them. Animal

Legal Def. Fund v. Vilsack, 640 F. Supp. 3d 134, 144 (D.D.C.

2022). The district court agreed, finding that ALDF lacks

standing to sue on its own behalf (organizational standing) or

on behalf of its members (associational standing). Id. at 144–

51.

ALDF appeals only the district court’s decision on

associational standing. The court held that ALDF failed to

demonstrate associational standing because the member whom

ALDF asserts was injured—whose name is Marie Mastracco—

does not herself have standing. Id. at 149–51. As the district

court saw it, ALDF’s amended complaint fails to show that

Mastracco suffers a sufficiently concrete injury resulting from

FSIS’s alleged failure to review the graphics on Fresh Line (or

any other) labels. See id. at 150–51. The court dismissed the

complaint without prejudice.

II.

We review the district court’s decision on standing de

novo. Sierra Club v. Jewell, 764 F.3d 1, 4 (D.C. Cir. 2014). A

membership organization like ALDF has associational

standing if “(1) at least one of its members would have

standing to sue in [her] own right, (2) the interests the

association seeks to protect are germane to its purpose, and (3)

neither the claim asserted nor the relief requested requires that

an individual member of the association participate in the

lawsuit.” Sierra Club v. EPA, 292 F.3d 895, 898 (D.C. Cir.

7

2002). Here, ALDF’s allegations are plainly germane to its

purpose: one of the group’s “signature focus areas” is

“expos[ing] and reform[ing] factory farming” by “curbing the

misleading labeling and advertising of animal products.” Am.

Compl. ¶ 19 (J.A. 57). And neither ALDF’s claims nor the

relief it seeks requires Mastracco’s personal participation. Our

inquiry thus focuses on the first prong: individual-member

standing.

Mastracco would have standing to sue in her own right if

she suffers (a) an injury-in-fact that is both (b) “fairly traceable

to the challenged action of the defendant” and (c) “likely, as

opposed to merely speculative,” to be “redressed by a favorable

decision.” Friends of the Earth, Inc. v. Laidlaw Env’t Servs.

(TOC), Inc., 528 U.S. 167, 180–81 (2000). The parties dispute

whether ALDF can demonstrate an injury-in-fact. To do so,

ALDF must show that the asserted injury to Mastracco is both

“concrete and particularized” and “actual or imminent, not

conjectural or hypothetical.” Id. at 180.

As the party invoking federal jurisdiction, ALDF bears the

burden of establishing standing. Susan B. Anthony List v.

Driehaus, 573 U.S. 149, 158 (2014). And because “standing is

not dispensed in gross,” ALDF “must demonstrate standing for

each claim that [it] press[es] and for each form of relief that [it]

seek[s].” TransUnion LLC v. Ramirez, 594 U.S. 413, 431

(2021). ALDF “may seek to make the requisite showing

through affidavits from members,” Food & Water Watch v.

FERC, 28 F.4th 277, 283 (D.C. Cir. 2022), but the group has

not offered an affidavit from Mastracco. As a result, we rely

on the facts asserted in ALDF’s complaint.

A.

We start by summarizing ALDF’s theory of standing and

the facts alleged in support of it. ALDF contends that

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Mastracco was injured after purchasing Fresh Line chicken

breasts and will continue to suffer cognizable injuries as long

as FSIS permits misleading imagery to appear on Fresh Line

and other poultry-product labels. Mastracco purchased Fresh

Line chicken breasts after “relying” on the labels’ “false and

misleading . . . graphic imagery.” Am. Compl. ¶ 30 (J.A. 60).

Before discovering that those labels were, in her view,

misleading, Mastracco had “regularly purchased” Fresh Line

chicken breasts for her “sick and elderly dog.” Id. ¶ 31 (J.A.

60). In deciding which chicken breasts to purchase, Mastracco

“considered factors such as whether the chickens raised for the

meat were healthy, given any chemicals or hormones, and

treated humanely.” Id. (J.A. 60). And she “relied on the

products’ labels to provide information about these [three]

factors.” Id. (J.A. 60). Mastracco “was influenced to

purchase” Fresh Line products by the label’s “claims about

[containing] no antibiotics.” Id. ¶ 32 (J.A. 60). And, “seeing

the graphic imagery, coupled with Perdue’s use of the term

‘cage free,’” she “interpreted the label to mean that the

chickens raised for the products roamed freely on pasture,

under a shining sun.” Id. (J.A. 60). When she “learn[ed]” that

was not the case, she was “surprised and upset.” Id. (J.A. 60).

“FSIS’s unlawful approvals” of the Fresh Line labels, claims

ALDF, caused Mastracco to suffer “consumer harm.” Id. ¶ 33

(J.A. 61).

That consumer harm is allegedly ongoing and imminent

because Mastracco “feels compelled to continue purchasing

whole chicken breasts” for her dog; but as long as FSIS

continues allowing Fresh Line labels to remain on grocery

shelves (claim 1) and maintains its purported policy of not

vetting the imagery on poultry-product labels in its pre-market

approval process (claim 2), Mastracco allegedly “will continue

to suffer a lack of confidence in whether any chicken labels

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convey accurate descriptions of the product’s animal raising

conditions.” Id. ¶ 34 (J.A. 61).

The complaint contends that vacating FSIS’s approvals of

the Fresh Line labels (claim 1) would remedy Mastracco’s

“consumer injur[y]” because it “would remove” the labels from

the grocery shelves, “eliminating the chance that” she “would

continue to purchase chicken products [she] mistakenly

believe[s] come from chickens raised in outdoor, bucolic

conditions.” Id. ¶ 35 (J.A. 61). And requiring FSIS to review

graphic imagery on all poultry-product labels (claim 2) would

remedy Mastracco’s consumer injury by “allow[ing]” her “to

purchase” chicken products “with greater confidence in

knowing how the animals were raised.” Id. ¶ 36 (J.A. 61).

B.

We now turn to assessing whether ALDF has standing to

pursue its first claim, challenging FSIS’s approval of Fresh

Line labels. We hold that the harm Mastracco suffered when

she purchased Fresh Line chicken breasts is sufficiently

concrete and particularized, but ALDF fails to show that the

harm is ongoing or substantially likely to recur.

1.

“Article III standing requires a concrete injury even in the

context of a statutory violation.” Spokeo, Inc. v. Robins, 578

U.S. 330, 341 (2016). As a result, although ALDF alleges that

FSIS has violated the PPIA, the group must still establish that

the injury Mastracco suffers is sufficiently concrete to qualify

as injury-in-fact. “A ‘concrete’ injury must be ‘de facto’; that

is, it must actually exist.” Id. at 340. And the “concrete, de

facto” injury must be a “legally cognizable” one. See id. at 341

(quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 578 (1992)).

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ALDF “must demonstrate standing ‘with the manner and

degree of evidence required at the successive stages of the

litigation.’” TransUnion, 594 U.S. at 431 (quoting Lujan, 504

U.S. at 561). At this point in the proceedings, “[o]n review of

a district court’s dismissal of a complaint for lack of subject

matter jurisdiction, . . . [w]e assume the truth of all material

factual allegations in the complaint and ‘construe the complaint

liberally, granting [the] plaintiff the benefit of all inferences

that can be derived from the facts alleged.’” Am. Nat’l Ins. Co.

v. FDIC, 642 F.3d 1137, 1139 (D.C. Cir. 2011) (quoting

Thomas v. Principi, 394 F.3d 970, 972 (D.C. Cir. 2005)).

Applying that standard, we conclude that ALDF’s

complaint sufficiently alleges facts showing that Mastracco

suffered a concrete injury. We read the complaint to allege that

Mastracco’s purchase of Fresh Line products was at least

partially motivated by a desire to buy humanely raised chicken,

and that the label’s graphic depiction of the birds roaming

outside was one reason she chose Fresh Line. In its complaint,

ALDF explains that when making purchasing decisions,

Mastracco “considered . . . whether the chickens raised for the

meat were healthy, given any chemicals or hormones, and

treated humanely,” and she “relied on the products’ labels to

provide information about” all those factors. See Am. Compl.

¶ 31 (J.A. 60). The complaint then goes on to say: “Mastracco

was influenced to purchase Perdue’s Fresh Line chicken

products by label claims about no antibiotics. And seeing the

graphic imagery, coupled with Perdue’s use of the term ‘cage

free,’ [she] interpreted the label to mean that the chickens

raised for the products roamed freely on pasture, under a

shining sun.” Id. ¶ 32 (J.A. 60).

We understand those sentences to describe Mastracco’s

pre-purchase decisionmaking process. And we infer from the

allegations that Mastracco made the decision to purchase Fresh

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Line chicken at least in part because of the label’s graphic

representation of the birds’ living conditions. As a result,

ALDF adequately alleges that Mastracco sought to buy

humanely raised chicken, that she chose Fresh Line in part

because she thought the graphics represented that the chickens

were humanely raised, and that the imagery on the package

thus misled her into making a purchase. That monetary injury

is sufficiently concrete and particularized for purposes of

standing. See TransUnion, 594 U.S. at 425.

2.

While ALDF therefore has established that Mastracco was

once harmed in a concrete and particularized way by FSIS’s

approval of Fresh Line labels, the complaint fails to show that

the harm is ongoing or imminent.

Because ALDF seeks declaratory and injunctive relief—

not damages—“past injuries alone are insufficient to establish

standing.” Dearth v. Holder, 641 F.3d 499, 501 (D.C. Cir.

2011). Rather, ALDF must show either that Mastracco is

“suffering an ongoing injury” (actual) or that she “faces an

immediate threat of injury” (imminent). Id. To show an

imminent injury, she “must show a ‘substantial probability of

injury’ or ‘a substantial risk that the harm will occur.’” Nat’l

Ass’n of Broadcasters v. FCC, 789 F.3d 165, 181 (D.C. Cir.

2015) (first quoting Sierra Club v. Jewell, 764 F.3d at 7; and

then quoting Susan B. Anthony List, 573 U.S. at 158); see

Clapper v. Amnesty Int’l USA, 568 U.S. 398, 409–10, 414 n.5

(2013). Importantly, the alleged future injury cannot be a “self-

inflicted harm” or one “largely of [one’s] own making”—

neither of those “amount[s] to an ‘injury’ cognizable under

Article III.” Nat’l Fam. Plan. & Reprod. Health Ass’n, Inc. v.

Gonzales, 468 F.3d 826, 831 (D.C. Cir. 2006).

12

ALDF fails to thread that needle. Our analysis of a

plaintiff’s standing “ordinarily depends on the facts as they

exist when the complaint is filed.” Lujan, 504 U.S. at 569 n.4

(emphasis omitted) (quoting Newman-Green, Inc. v. Alfonzo-

Larrain, 490 U.S. 826, 830 (1989)). Here, the entire premise

of the complaint is that Mastracco now knows that Fresh Line

chicken, regardless of the imagery on the label, is raised

indoors. And ALDF fails to explain why it is substantially

likely that Mastracco will continue to purchase Fresh Line

chicken—and rely on the label’s graphics when doing so—now

that she knows that the chickens were raised in a way that “is

anathema to her ethical views.” ALDF Br. 19. Nor does ALDF

explain why Mastracco’s reliance on labels she knows to have

been misleading could be something other than a self-inflicted

injury.

In arguing that it has established a sufficiently imminent,

non-self-inflicted injury, ALDF relies on Davidson v.

Kimberly-Clark Corp., 889 F.3d 956 (9th Cir. 2018). In

Davidson, the Ninth Circuit held that there are certain

circumstances in which “a previously deceived consumer may

have standing to seek an injunction” based on future purchases

of the same product “even though the consumer now knows or

suspects that the advertising was false at the time of the original

purchase.” Id. at 969. The court reasoned in relevant part: “the

threat of future harm may be the consumer’s plausible

allegations that 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.” Id. at 970. Here, ALDF contends that

Mastracco will continue to purchase Fresh Line chicken even

though, last she knew, the chickens were raised indoors and the

labels’ graphics are misleading. See Am. Compl. ¶ 35 (J.A.

61); accord ALDF Reply Br. 6.

13

Even if we assume for purposes of argument that a plaintiff

could allege a cognizable injury in the way Davidson lays out,

ALDF fails to do so. To fit within that theory, a previously

deceived plaintiff would need to show that it is likely she will

purchase the product in the future; that her purchase is once

again motivated by the message conveyed by the product’s

label; and that it would be reasonable to assume the labeling

has been cured of its defects. See Davidson, 889 F.3d at 969–

70. But nowhere does ALDF explain why Mastracco would

continue to rely on Fresh Line labels’ graphics to purchase that

product, or why it could be reasonable for her to do so. Instead,

ALDF asserts that, because Mastracco cannot trust any

chicken-product labels in the market, “there are other reasons

why Mastracco may want to purchase Perdue Fresh Line

products again, such as price, convenience, or availability at

her local grocery store.” ALDF Reply Br. 6 (emphasis added).

It would not be enough for purposes of standing, though, if

Mastracco were to purchase Fresh Line chicken for reasons

other than that she reasonably interpreted the labels’ graphics

to mean that the product contains humanely raised chickens: if

she were to buy Fresh Line because it was inexpensive, not

because she wanted humanely raised chicken and believed the

labels’ imagery to so promise, she would not suffer the injury

she complains of.

In sum, ALDF has not shown any substantial likelihood

that Mastracco will suffer non-self-imposed future harm due to

FSIS’s approval of Fresh Line labels. Even if ALDF could do

so pursuant to a different theory of injury, the group has not

advanced one. ALDF thus fails to establish standing to pursue

the first of its two claims.

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C.

We also conclude that ALDF lacks standing to pursue its

second claim, challenging FSIS’s ostensible policy of

declining to evaluate the graphics on any poultry-product

labels. ALDF again stumbles on the actual-or-imminent prong

of the injury-in-fact requirement.

1.

ALDF claims that Mastracco is injured by FSIS’s alleged

policy of not reviewing the imagery on poultry-product labels.

ALDF’s theory is that, while Mastracco is “compelled” to

continue purchasing chicken breasts for her dog, she, as a result

of FSIS’s alleged policy, “suffer[s] a lack of confidence in

whether any chicken labels” are accurate. Am. Compl. ¶ 34

(J.A. 61). That is, because of FSIS’s ostensible policy,

Mastracco cannot purchase chicken and “know[]” with

“confidence . . . how the animals were raised.” See id. ¶ 36

(J.A. 61).

The district court found that injury insufficiently concrete.

Animal Legal Def. Fund, 640 F. Supp. 3d at 150–51. The court

believed that the sole injury supported by the complaint’s

allegations is a psychic harm from disagreement with FSIS’s

alleged policy. See id. We, however, understand the complaint

to allege more than just that narrow type of harm.

ALDF contends that FSIS’s asserted failure to review

graphics on poultry labels prevents her from acting in accord

with her sincerely held ethical beliefs: Mastracco must

continue buying chicken for her dog, but FSIS’s allegedly

unlawful policy prevents her from confidently making

purchasing decisions that she believes are ethical. See Am.

Compl. ¶¶ 34, 36 (J.A. 61). She thus desires information with

which she can make an informed purchasing decision, and the

15

“information deficit” created by FSIS’s policy “hinder[s] [her]

ability” to do so. TransUnion, 594 U.S. at 442. That is the sort

of “downstream consequence[]” that can establish Article III

standing. See id. (quoting Trichell v. Midland Credit Mgmt.,

Inc., 964 F.3d 990, 1004 (11th Cir. 2020)).

Nor would relying on the graphics of non-Fresh Line

products result in a self-inflicted injury. True, a premise of

ALDF’s complaint is that the graphics on all poultry-product

labels are unreliable insofar as they are unreviewed by FSIS.

But ALDF does not allege that Mastracco thus knows all such

graphics are necessarily inaccurate, and there is no cause to so

assume. For all she knows, companies other than Perdue might

accurately portray birds’ living conditions in graphics on

product labels. She accordingly may reasonably believe some

non-Fresh Line graphics are accurate, but she cannot know for

sure because, according to ALDF, FSIS fails to review them as

required. So, while Mastracco’s future reliance on the Fresh

Line labels she knows to be inaccurate would comprise a self-

inflicted injury, see supra Section II.B.2, her reliance on other

unreviewed—but potentially accurate—graphics would not.

The government, though, argues that Mastracco’s reliance

on such graphics would amount to a self-inflicted injury

because she can disregard graphics and instead consult a label’s

written statements. We disagree. It might be reasonable in

some circumstances to expect consumers to “grasp an easy

means for alleviating [their] alleged uncertainty.” See

Gonzales, 468 F.3d at 831. But see Williams v. Gerber Prods.

Co., 552 F.3d 934, 939–40 (9th Cir. 2008); Spann v. Colonial

Vill., Inc., 899 F.2d 24, 28–29 (D.C. Cir. 1990). Here,

however, it is not evident that a label’s written representations

constitute an “easy means” for Mastracco to gain the

information she desires. We do not know the extent to which

poultry-product labels will contain written claims that speak to

16

Mastracco’s ethical concerns (and potentially override any

graphic-caused confusion) by addressing whether the birds

were “humanely raised.” A seemingly relevant written claim,

moreover, would not necessarily clarify things for her. Indeed,

the complaint indicates that the words “cage free” on Fresh

Line labels furthered her misperception that the birds “roamed

freely on pasture.” Am. Compl. ¶ 32 (J.A. 60). So even

assuming it might be reasonable to expect a consumer like

Mastracco to turn away from graphic illustrations and look

instead at written statements, we cannot say that her doing so

would “alleviat[e] [her] alleged uncertainty” about the birds’

living conditions. Gonzales, 468 F.3d at 831.

2.

While ALDF alleges a concrete injury, it fails to show that

the injury is ongoing or imminent. For Mastracco to be injured

by FSIS’s failure to review the graphics on poultry-product

labels, she must encounter labels that graphically represent

birds’ living conditions. And because, as we have explained,

ALDF has not shown how Mastracco could be harmed again

by the labels for Fresh Line chicken, the labels causing her

future injury must be ones for competing products. But the

complaint contains no allegation that Perdue or any competitor

currently markets or will market any chicken product bearing

graphics depicting chickens’ living conditions. We then must

accept the possibility that there are no such products. And

because ALDF’s failure to allege the existence of even a single

non-Fresh Line product capable of harming Mastracco means

that any prospective injury is necessarily hypothetical, we need

not decide just how prevalent such non-Fresh Line products

would have to be for Mastracco to face an imminent—that is,

a substantially probable—injury. See Sierra Club v. Jewell,

764 F.3d at 7.

17

ALDF errs in contending that its complaint does allege the

existence of non-Fresh Line products that graphically depict

chickens’ living conditions. ALDF focuses on its allegation

that Mastracco “will continue to suffer a lack of confidence in

whether any chicken labels convey accurate descriptions of the

product’s animal raising conditions.” Am. Compl. ¶ 34 (J.A.

61). According to ALDF, “[t]he word ‘any’ includes both

Perdue Fresh Line products and all other chicken products on

the market.” ALDF Reply Br. 6. We are unconvinced. That

sentence of the complaint asserts only that if there are non-

Fresh Line labels that graphically depict birds’ living

conditions, Mastracco would distrust them, just as she distrusts

Fresh Line labels. The sentence does not allege that such non-

Fresh Line labels actually exist in the first place.

ALDF also asserts that “a walk down the meat aisle at any

grocery store shows that brands other than Perdue use imagery

depicting chickens on their chicken breast labels.” Id. at 7.

That may be the case, but to matter, the imagery would need to

make a representation about the birds’ living conditions. And

regardless, it is not enough for ALDF to contend as much in its

briefing in our court: for purposes of establishing standing, we

cannot “credit an assertion in a brief as if it were alleged in a

pleading.” Arpaio v. Obama, 797 F.3d at 21.

Based on the facts ALDF has pleaded in the complaint, we

do not doubt that Mastracco will find herself in the meat section

of her grocer because she needs to purchase chicken breasts for

her dog. Nor do we doubt that she will seek out a humanely

raised product and, if presented with a non-Fresh Line label

that graphically depicts birds’ living conditions, might rely on

that imagery to inform her choice. But the complaint gives no

reason to infer that such a label even exists. In that light, we

cannot say it is possible—much less substantially likely—that

18

Mastracco will be injured by FSIS’s ostensible policy. ALDF

thus fails to demonstrate standing for its second claim.

* * * * *

For the foregoing reasons, we affirm the district court’s

dismissal without prejudice of ALDF’s complaint.

So ordered.

KATSAS, Circuit Judge, concurring: The claims in this

case target two different actions by the Department of

Agriculture: (1) its approval of an allegedly misleading label

for Perdue Fresh Line poultry products; and (2) its alleged

policy of refusing to review graphics on the labels of all other

poultry products. As the Court explains, the standing of the

Animal Legal Defense Fund to raise these claims depends on

the standing of its member Marie Mastracco. As to the first

claim, her alleged injury to support prospective relief is self-

inflicted; she knows that Fresh Line birds are not raised

outdoors so, going forward, she cannot rely on any contrary

suggestion from the label. As to the second claim, Mastracco’s

alleged injury is speculative; ALDF has not alleged that any

poultry products besides Fresh Line contain graphic images

making factual assertions about the birds’ living conditions.

On these points, the Court’s analysis is spot-on.

I also agree that Mastracco’s alleged injury for the second

claim is concrete enough to support her Article III standing,

though that strikes me as a close question. In my view, a

plaintiff suffers no concrete injury from receiving misleading

information that fails to mislead her. See Trichell v. Midland

Credit Mgmt., Inc., 964 F.3d 990, 1005 (11th Cir. 2020). From

that premise, it would be a small step to conclude that a plaintiff

likewise suffers no concrete injury from receiving unreliable

information on which she does not rely. Nonetheless, I am

ultimately persuaded by the Court’s concreteness analysis.

Mastracco alleges an entitlement to receive from the

government certain information that it has failed to provide—

a stamp of approval for graphic images that the government

deems to be not misleading. And Mastracco further alleges that

this information, if provided, would assist her in deciding

which poultry products to buy for her dog. This seems enough

to establish a concrete informational injury under TransUnion

LLC v. Ramirez, 594 U.S. 413, 441–42 (2021), and Trichell,

964 F.3d at 1004.

2

Nonetheless, I remain skeptical about the second claim

even apart from Mastracco’s failure to show imminence. First,

if her alleged injury is an “information deficit” about how birds

are treated, see TransUnion, 594 U.S. at 442; ante at 14–15,

establishing redressability would require an alleged affirmative

entitlement to receive this information, as opposed to just an

entitlement to be free from any misleading information, see 21

U.S.C. § 457(c). And if there were no such affirmative

entitlement, the claim would fail on the merits.

Second, it seems to me doubtful that cartoons like the one

at issue, see ante at 4, make any representation about how birds

are raised. But for standing purposes, what matters is how

Mastracco reacts to these cartoons, and the complaint does

allege that she understands them to make factual

representations. In reviewing a jurisdictional dismissal based

on asserted shortcomings in the complaint itself, we must

assume the truth of that allegation. See Am. Nat’l Ins. Co. v.

FDIC, 642 F.3d 1137, 1139 (D.C. Cir. 2011). And we must

assume that such cartoons are also misleading to reasonable

viewers—a question that goes only to the merits.

Third, I think Mastracco’s injury would be self-inflicted if

she credited a cartoon over specific factual information on the

label about how birds are raised. See Nat’l Family Planning &

Reprod. Health Ass’n v. Gonzales, 468 F.3d 826, 831 (D.C. Cir.

2006). But the governing statute does not require labels to

include such information. See 21 U.S.C. §§ 453(h), 457. The

complaint does not allege that sellers of poultry products

routinely include it. Nor does the government seriously

contend as much. For these reasons, I agree with the Court that

we cannot, at this stage of the case, deem Mastracco’s alleged

injury to be self-inflicted. Ante at 15–16.

3

Fourth, ALDF seeks to challenge USDA’s alleged pattern

of not reviewing any graphic images on the packaging of any

poultry products besides those sold under the Fresh Line brand.

But the Administrative Procedure Act requires plaintiffs to

focus their claims on “discrete” as opposed to “programmatic”

agency actions. Norton v. S. Utah Wilderness All., 542 U.S.

55, 64 (2004); see Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871,

891–94 (1990); Am. Forest Res. Council v. United States, 77

F.4th 787, 804–05 (D.C. Cir. 2023). Here, ALDF’s pattern

claim seems to fall on the programmatic side of that line. But

the government did not raise this objection, which goes to the

APA’s non-jurisdictional requirement of reviewable “agency

action” within the meaning of 5 U.S.C. § 704.

Because I do not regard these observations as inconsistent

with the Court’s opinion, I join it in full.