U.S. District Judge Charles Kocoras in Chicago ruled on Tuesday that reasonable consumers would not agree with the plaintiff Adam Sorkin that “farm fresh” necessarily meant hens “living on farms, with open green space, grass, hay and straw.”

Sorkin said he paid a premium price for “farm fresh” eggs under the Roundy’s label at Mariano’s Fresh Market stores—Kroger owns both brands—in the Chicago area, and would have paid less or not bought them had he known their origins.

But in dismissing the proposed class action, Kocoras distinguished “farm fresh” from descriptors such as “cage-free,” “free-range” and “pasture-raised” that actually describe the living conditions of hens.

“The court agrees with Kroger that no reasonable consumer would plausibly spin free-roaming hens on a grassy, open field from the term ‘farm fresh,'” Kocoras wrote.

“‘Farm Fresh Eggs’ means precisely what it says: the eggs are fresh from a farm,” he added. “It is about origin and timing, nothing more.”

Lawyers for Sorkin did not immediately respond to requests for comment on Wednesday. Kroger and its lawyers did not immediately respond to similar requests.

Sorkin sued last October, eight months after the nonprofit advocacy group Data for Progress released a report, “Cracking Down on Kroger,” calling for increased transparency about where Kroger’s eggs come from.

The report included a survey of 646 Kroger customers, where 41 per cent said they thought “farm fresh” meant cage-free, 14 per cent said it meant cages were used, and 45 per cent didn’t know.

The case is Sorkin v Kroger Co, U.S. District Court, Northern District of Illinois, No. 23-14916.

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“I congratulate the McDonald’s team on their victory in this proxy engagement and, after much contemplation, given the company’s financial position, I believe the same outcome will result at Kroger,” Icahn said in a letter he plans to send to the shareholders of both companies that was viewed by the Journal.

The activist investor in March nominated two directors to the supermarket chain’s board and wrote a letter to its boss pointing out Kroger’s inability to create policies concerning animal welfare and criticizing its wage disparities.

Icahn, a billionaire who owns roughly US$50,000 worth of McDonald’s stock, had also nominated two director candidates to push the fast-food chain to make good on a decade-old promise to stop buying pork by the end of this year from suppliers that house the animals in crates.

He has said confining the pigs in crates during their pregnancy is inhumane and sought to shine a spotlight on the practice more broadly. The boardroom battle ended when shareholders re-elected all of McDonald’s directors.

Icahn wrote in the letter seen by WSJ that these campaigns were different from his typical fights considering that the two companies are performing well financially, which makes it less likely the campaigns would gain adequate shareholder support.

“We will continue to engage with stakeholders and shareholders to inform our policies and ensure we are well positioned to achieve our goals,” a Kroger spokesperson said in an emailed response to the report.

Representatives for Icahn did not immediately respond to a request for comment outside regular business hours.

— Reporting for Reuters by Ann Maria Shibu in Bangalore; additional reporting by Sneha Bhowmik.

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Now, several stores are creating similar products that will compete with Beyond Meat.

Kroger Co., the biggest U.S. grocer, on Wednesday rolled out its own line of plant-based imitation meat burgers nationwide under its Simple Truth in-house brand. The retailer said its pea protein-based products would be sold at “more affordable prices” than competing brand-name imitation meat. A Kroger spokeswoman said a two-patty pack would sell at about $4.99 to loyalty-card-holding customers (all figures US$).

German-owned discount supermarket Aldi U.S., which sells Meatless Meatballs and Chickenless patties, said it keeps its plant-based meat products at prices ranging from $3 to $4.

In comparison, a package of two Beyond Burgers sells for about $5.99 at some major big-box stores.

Aldi, which plans to launch more products this year and is testing a meatless breakfast sausage, told Reuters that sales of its store-brand plant-based meats were up 300 per cent last year.

“It wouldn’t surprise me if it was up 300 per cent again this year,” Scott Patton, who co-heads corporate buying at Aldi, said. “If a customer is going to purchase a competitor’s plant-based product versus an Aldi one, ours will be significantly cheaper.”

For years, major retailers including Target and Walmart have invested in their in-house brands, lining up contract manufacturers to produce private-label food ranging from macaroni-and-cheese to ice cream.

As a result, companies including Kraft Heinz have reported multi-quarter sales losses as they lose share to private-label brands. Grocers typically do not give own-brand products better shelf-space, preferring to compete with lower prices.

Albertsons Co. Inc., whose grocery store chains include Jewel-Osco and the U.S. Safeway chain, told Reuters that it prices its imitation meat at 50 cents to $1 cheaper than products sold by Beyond Meat or Maple Leaf Foods’ Lightlife — another big plant-based meat maker.

Private-label brands will need to sell plant-based products at a net wholesale cost that is about $1.25 lower than Beyond Meat and other rivals, private label consultant Jim Wisner of Wisner Marketing Group Inc said. “Product, of course, needs to be equally good or better.”

Vegan burgers made from beans and other ingredients have been around for decades, but Beyond Meat said its 10-year investment in making peas taste like meat won’t be easy for grocers to replicate.

The company’s proprietary food technology helped it list in a splashy initial public offering — Beyond Meat is now valued at about $5 billion, with its share price having more than tripled from the IPO.

“You can put something in the shape of a patty and put it on a shelf where we are, but the barriers to entry are low and the barriers to success are high,” Beyond Meat chairman Seth Goldman told Reuters in a recent interview.

The company said it has rebuffed approaches by several U.S. grocers to create plant-based meat sold under their private-label banners. “We’ve seen several retailers launch plant-based burgers that were private label and they just weren’t ready.”

A Kroger spokeswoman said the company’s own-brand plant-based meat was developed by an in-house R+D team and produced by a third party.

“Really, the pivot-point for the whole industry was the Beyond Meat IPO,” said Danny Goodman from Don Lee Farms, a food maker that has supplied a variety of products to top U.S. retailers over the years, including Kroger, Whole Foods and Albertsons. “I think it made a lot of companies sit up and put more resources into working on my plant-based line.”

— Reporting for Reuters by Richa Naidu in Chicago; additional reporting by Siddharth Cavale in Bangalore.

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The annual two-day food showcase attracted buyers such as Trader Joe’s, Williams Sonoma, Kroger, and Raley’s Fine Foods.

“A buyer who attended told me that they got more done at Taste of Canada than any other show they had gone to,” said Paola Zaragoza, trade and relations officer with Alberta Agriculture and Rural Development. “It’s become a Canadian flagship event in the U.S. market.”

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