Federal Complaint Filed Over Allegedly Deceptive SeaWorld Parade Float

For Immediate Release:
November 28, 2014

Contact:
David Perle 202-483-7382

Today, PETA filed a complaint with the Federal Trade Commission asking the agency to investigate SeaWorld’s apparently false and misleading representations. As PETA (whose motto reads, in part, that “animals are not ours to use for entertainment”) notes in its complaint, the last two Macy’s Thanksgiving Day Parades included a SeaWorld float that portrayed orcas, dolphins, sea turtles, and other marine life thriving in a natural setting—a far cry from the deprivation that marine mammals actually endure at SeaWorld.

“Orcas, dolphins, and other animals at SeaWorld spend their lives swimming in endless circles in barren concrete tanks where they can only attack each other and bite the bars of the cages in frustration, and to tell the public otherwise is, PETA believes, illegal,” says PETA Foundation Director of Animal Law Jared Goodman. “PETA is asking the authorities to step in and stop SeaWorld from trying to dupe customers with this deceptive parade float.”

Yesterday, PETA supporters jumped the barriers at the Macy’s Thanksgiving Day Parade to protest SeaWorld’s misleading float.

For more information, please visit SeaWorldOfHurt.com.

November 28, 2014

Mary K. Engle, Associate Director
Division of Advertising Practices
Federal Trade Commission

Re: Complaint Against SeaWorld for Deceptive Acts and Practices Related to its Macy’s Thanksgiving Day Parade Float

Dear Ms. Engle:

On behalf of People for the Ethical Treatment of Animals, I submit this citizens’ complaint pursuant to Section 5 of the Federal Trade Commission Act (the “FTC Act”), 15 U.S.C. § 45, to request that the Federal Trade Commission (the “Commission”) investigate and commence appropriate enforcement action against SeaWorld Entertainment Inc. (“SeaWorld”), for deceiving consumers about the welfare of animals held at its facilities.

SeaWorld’s float in yesterday’s Macy’s Thanksgiving Day Parade, which can be found here and was also used in last year’s event,[1] depicts orcas, dolphins, sea turtles, and other marine life thriving in a natural setting with SeaWorld’s logo emblazoned on its side. This represents to the public that the animals at SeaWorld are similarly thriving and, indeed, SeaWorld’s CEO has stated that the float is intended to represent “the fun, inspiration and surprises that guests will find during a visit to SeaWorld.”[2]

These representations are materially false and misleading. The enclosures at SeaWorld bare no meaningful resemblance to the animals’ natural habitats and the orcas and other animals confined there are deprived of virtually everything natural and important to them. As a result and as acknowledged in SeaWorld’s own records and supported by expert observations, captivity at the company’s facilities is physically and psychologically devastating to these animals. Contrary to the false and misleading representations of the float, the true nature of captivity at SeaWorld is evidenced by, among other things, the following:

• Orcas repeatedly bite down on the corners and steel gates of their tanks, leading to an epidemic of chronic tooth infections and dental drilling without anesthetics.
• Orcas exhibit excessive and deadly aggression toward each other and humans, including some 100 occurrences of biting, hitting, lunging toward, pulling on, pinning, dragging, and aggressively swimming over SeaWorld trainers.
• The frustrated orcas are given psychotropic drugs to try to reduce the aggression caused by captivity so that they can be confined together.
• Orca calves are torn away from their mothers, when in nature they would stay together for many years and often for life.
• Extensive scarring can be seen on animals’ bodies, likely attributable to aggression from other animals in response to incompatible and stressful housing, inappropriate enclosures, and inadequate transport.
• The animals engage in stereotypical behavior, such as the orcas lying motionless at the surface or bottom of the tanks for extended periods, and a walrus swimming in circles and regurgitating and re-ingesting food.
• Dolphins are forced to perform with potentially serious skin conditions that indicate a depressed immune system.
• Animals have been ejected from their tanks during performances and struggle to re-enter the water while spectators futilely plead with SeaWorld trainers to help them.
• Dolphins have had open wounds on their lower jaws, likely caused by unsafe enclosures.

Moreover, over the last several years, SeaWorld has been cited for multiple violations of the federal Animal Welfare Act (AWA). On December 3, 2012, SeaWorld Orlando was cited for several violations, including the use of expired surgical materials, some almost a decade old. The U.S. Department of Agriculture, which enforces the AWA, required SeaWorld to “[e]stablish an effective procedure for checking the sutures to ensure that they are not expired.” On January 13, 2014, just thirteen months later, SeaWorld apparently disregarded the directive and was cited for a repeat violation for stocking 35 packages of expired sutures. According to the agency, “[t]he use of expired medications [and] material used to treat animals is not an appropriate method to treat injuries,” is “not considered to be acceptable veterinary practice and does not constitute adequate veterinary care.”

SeaWorld has also been cited repeatedly for failing to maintain the animal enclosures in good repair. Portions of the rubber flooring at Sea Lion & Otter Stadium, on which the animals walk to perform, were dislodged and loose paint chips were found on the floor in the same area; a dolphin tank had cracked and crumbling concrete and rusty beams overhead; and the areas surrounding the orca performance tank had loose, warn, and chipped away flooring and worn paint. Each of these violations could pose a serious threat to the health and safety of the animals if the debris was ingested.

The FTC Act declares unfair or deceptive acts or practices unlawful.[3] A false oral or written representation or omission, if material, is deceptive within the meaning of the Act.[4] “The statutory ban against false and misleading advertisements and representations applies to that which is suggested as well as that which is asserted.”[5] Indeed, “[a] deceptive impression may be created by implication and innuendo without affirmative misrepresentation or misstating a single fact.”[6]

“The tendency of . . . advertising to deceive must be judged by viewing it as a whole.”[7] The Commission is “required to look at the complete advertisement and formulate [its] opinions on the basis of the net general impression conveyed by them and not on isolated excerpts.”[8] “To tell less than the whole truth is a well known method of deception,”[9] and “the Commission repeatedly has held that deceptive non-disclosure of material facts is a violation of Section 5.”[10] The focus is “the entire mosaic, rather than each tile separately.”[11]

The Commission’s ultimate “concern” is the “message conveyed or the implication created in the mind of the ordinary purchaser”:[12] “that vast multitude . . . who, in making purchases, do not stop to analyze, but are governed by appearances and general impressions.”[13] Whether advertising “is false or misleading is determined based on the objective ‘reasonable consumer’ standard.”[14] As long as an advertisement “reasonably can be interpreted in a misleading way,” it is “deceptive, even though other, non-misleading interpretations may be equally possible.”[15]

A deceptive representation, omission, or practice is actionable under the FTC Act if it is “material.” A “material” misrepresentation is “one which is likely to affect a consumer’s choice of or conduct regarding a product. In other words, it is information that is important to consumers.”[16]

This Commission has acknowledged that, “for many consumers, a company’s claim that its products are humane is important to their decision whether or not to purchase products from that company.”[17] “Irrespective of the view on how to balance human and animal interests, there seems to be a consensus that animals should not be made to suffer unnecessarily.”[18]

The “message conveyed or the implication created in the mind of the ordinary purchaser” by SeaWorld’s float is that the animals are held in a naturalistic and enriched environment that allows them to engage in natural behaviors and thrive physically and psychologically. The float falsely and misleadingly represents to the buying public that the animals held and forced to perform at SeaWorld facilities are not held in woefully inadequate conditions that result in poor welfare. These conditions and the violations of federal regulations described above, for which further documentation is available upon request, are unquestionably important to consumers and likely to affect a consumer’s choice as to whether or not to purchase a ticket to SeaWorld. SeaWorld’s false and misleading representations therefore apparently violate the FTC Act.

We appreciate your attention to this matter and look forward to hearing from you.

Very truly yours,

Jared S. Goodman

2 Press Release, SeaWorld, SeaWorld Debuts “A Sea Of Surprises” Float In The 87th Annual Macy’s Thanksgiving Day Parade (Sept. 24, 2013), http://seaworldparks.com/en/seaworld-sanantonio/media-room/press-releases/2013/macys-float/?m=1.

3 15 U.S.C. § 45(a).

4 FTC Policy Statement on Deception § I (Oct. 14, 1983), appended to Cliffdale Assocs., Inc., 103 FTC 110, 174 (1984).

5 The Raymond Lee Org., Inc., 92 FTC 489, 1978 WL 206103, at *140 (1978).

6 MacMillan, Inc., 96 FTC 208, 1980 WL 338975, at *120 (1980).

7 Beneficial Corp. v. FTC, 542 F.2d 611, 617 (3d Cir. 1976), cert denied, 430 U.S. 983 (1977); accord Horizon Corp., 1981 WL 389410, at *269 (in determining whether a representation is deceptive, the Commission is “not confined to analyzing isolated words and phrases”).

8 Standard Oil of Cal., 84 FTC 1401, 1471 (1974), aff’d as modified, 577 F.2d 633 (9th Cir. 1978), reissued, 96 FTC 380 (1980).

9 P. Lorillard Co. v. FTC, 186 F.2d 52, 58 (4th Cir. 1950).

10Complaint Counsel’s Post-Trial Br., Union Oil Co. of Cal., 2005 WL 906397 (quoting Int’l Harvester Co., 104 FTC at 1057).

11 FTC v. Sterling Drug, 317 F.2d 669, 674 (2d Cir. 1963).

12 Id. at *263.

13 P. Lorillard Co., 186 F.2d at 58; see FTC Policy Statement on Deception § III; see also Warner-Lambert, 86 FTC 1398, 1415 n.4 (1975), aff’d, 562 F.2d 749 (D.C. Cir. 1977) (evaluating the claim from the perspective of the “average listener”); Grolier, 91 FTC 315, 430 (1978) (considering the “net impression” made on the “general populace”).

14 Ortega v. Natural Balance, Inc., 300 F.R.D. 422, 428-29 (C.D. Cal. 2014) (citations omitted).

15 Telebrands Corp., 2004 WL 3155567, at § III.B.1 (FTC Sept. 15, 2004) (citing Kraft, Inc., 114 FTC 40, 120 n.8 (1991), aff’d, 970 F.2d 311 (7th Cir. 1992)).

16 FTC Policy on Deception § IV.

17 E-mail from Mary Engle, Associate Director, Bureau of Consumer Protection, FTC, to PETA (Oct. 16, 2008) (on file with PETA); see also E-mail from Mary Engle to Bonnie Robson, Counsel for PETA (Apr. 14, 2009) (on file with PETA) (“animal treatment is an important issue for many consumers”).

18 The Encyclopedia of Applied Animal Behaviour and Welfare 465 (Daniel S. Mills ed., 2010).

[1] Attractions Magazine, Twitter (Nov. 27, 2014, 10:40 AM),

Lauren Effron, Protester, 12, Targets SeaWorld Float in Macy’s Thanksgiving Day Parade, ABC News (Nov. 29, 2013), http://abcnews.go.com/blogs/‌headlines/‌2013/‌11/protester-12-targets-seaworld-float-in-macys-thanksgiving-day-parade/.

[2] Press Release, SeaWorld, SeaWorld Debuts “A Sea Of Surprises” Float In The 87th Annual Macy’s Thanksgiving Day Parade (Sept. 24, 2013), http://seaworldparks.com/en/seaworld-sanantonio/media-room/press-releases/2013/macys-float/?m=1.

[3] 15 U.S.C. § 45(a).

[4] FTC Policy Statement on Deception § I (Oct. 14, 1983), appended to Cliffdale Assocs., Inc., 103 FTC 110, 174 (1984).

[5] The Raymond Lee Org., Inc., 92 FTC 489, 1978 WL 206103, at *140 (1978).

[6] MacMillan, Inc., 96 FTC 208, 1980 WL 338975, at *120 (1980).

[7] Beneficial Corp. v. FTC, 542 F.2d 611, 617 (3d Cir. 1976), cert denied, 430 U.S. 983 (1977); accord Horizon Corp., 1981 WL 389410, at *269 (in determining whether a representation is deceptive, the Commission is “not confined to analyzing isolated words and phrases”).

[8] Standard Oil of Cal., 84 FTC 1401, 1471 (1974), aff’d as modified, 577 F.2d 633 (9th Cir. 1978), reissued, 96 FTC 380 (1980).

[9] P. Lorillard Co. v. FTC, 186 F.2d 52, 58 (4th Cir. 1950).

[10]Complaint Counsel’s Post-Trial Br., Union Oil Co. of Cal., 2005 WL 906397 (quoting Int’l Harvester Co., 104 FTC at 1057).

[11] FTC v. Sterling Drug, 317 F.2d 669, 674 (2d Cir. 1963).

[12] Id. at *263.

[13] P. Lorillard Co., 186 F.2d at 58; see FTC Policy Statement on Deception § III; see also Warner-Lambert, 86 FTC 1398, 1415 n.4 (1975), aff’d, 562 F.2d 749 (D.C. Cir. 1977) (evaluating the claim from the perspective of the “average listener”); Grolier, 91 FTC 315, 430 (1978) (considering the “net impression” made on the “general populace”).

[14] Ortega v. Natural Balance, Inc., 300 F.R.D. 422, 428-29 (C.D. Cal. 2014) (citations omitted).

[15] Telebrands Corp., 2004 WL 3155567, at § III.B.1 (FTC Sept. 15, 2004) (citing Kraft, Inc., 114 FTC 40, 120 n.8 (1991), aff’d, 970 F.2d 311 (7th Cir. 1992)).

[16] FTC Policy on Deception § IV.

[17] E-mail from Mary Engle, Associate Director, Bureau of Consumer Protection, FTC, to PETA (Oct. 16, 2008) (on file with PETA); see also E-mail from Mary Engle to Bonnie Robson, Counsel for PETA (Apr. 14, 2009) (on file with PETA) (“animal treatment is an important issue for many consumers”).

[18] The Encyclopedia of Applied Animal Behaviour and Welfare 465 (Daniel S. Mills ed., 2010).