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10th Circuit Affirms Dismissal of False Pet Food Ad Class Action Proposal | Drinker Faegre Biddle & Reath LLP

The Tenth Circuit recently affirmed the dismissal of a proposed class action lawsuit against a dog food manufacturer, finding the alleged class action claims to be unprosecutable bragging and too subjective.

On Renfro, et al. v. Champion Petfoods USA, Inc., et al., No. 20-1274, pet owner plaintiffs filed a proposed class action lawsuit against Champion Petfoods alleging that the packaging of some of its dog food brands was false and misleading. Specifically, the plaintiffs brought claims for violation of the Colorado Consumer Protection Act, breach of express and implied warranties, fraudulent misrepresentation, fraudulent concealment, unjust enrichment, and negligence.

The products in question

The dog food packaging claimed that the products were: “Biologically Appropriate”; “Trusted Everywhere”; using “Fresh and Regional Ingredients”; and containing “Ingredients We Love [from] People we trust.” The labels stated that the dog food contained “richness, freshness and variety” of meats that dogs have “evolved to eat” and that it would “nourish [dogs] as nature intended.” Some of the packaging indicated that the product’s ingredients were “ethically raised by people we know and trust.” On the packaging of certain dog food formulas, the labels made more specific claims, such as the approximate amount of each type of fish included by weight.

The District of Colorado Decision

The US District Court for the District of Colorado dismissed the plaintiffs’ claims as “unacceptable bravado or overly subjective and therefore not materially misleading to a reasonable consumer.” The district court acknowledged that whether a statement is false or misleading is normally a question for the jury, but when statements are “so general or devoid of specific factual content,” they are incapable of empirical verification and cannot, “as a matter of right”. , give rise to liability.” The district court held that was the case here, and the plaintiffs appealed.

Tenth Circuit Affirms Dismissal of Proposed Class Action

The Tenth Circuit affirmed, finding that the plaintiffs did not allege materially false or misleading statements on Champion’s packaging because the phrases in question failed to “mislead or mislead reasonable consumers as to any material fact.” The court emphasized that, under Colorado law, “[m]These statements of opinion such as bragging or praise of the goods by the seller are not guarantees”, and instead are simply “those vague generalities which no reasonable person would rely on as statements of particular facts. These types of statements cannot form the basis of any claim of misrepresentation of the facts.” On the other hand, “if sellers make any claims of value or quality in order to be accepted as [a] fact, then they must be treated as representations of fact.

The Tenth Circuit held that the phrases “Trusted Everywhere” and “Ingredients We Love [from] People We Trust” were “unacceptable bravado.” It contended that the statement “Fresh Regional Ingredients” could “only be understood in the context of all of Champion’s dog food packaging” and was ultimately “too . . . vague” to “mislead a reasonable consumer who examined the entire package.” The court said no reasonable consumer would have concluded that the blanket “Biologically Appropriate” claim was a material misrepresentation of the facts, despite allegations that dog food sold in 2018 contained contaminated beef tallow. with pentobarbital, similar to the claims we have explored earlier in this blog that were also dismissed by the Eastern District of Wisconsin.

The Tenth Circuit similarly affirmed the district court’s dismissal of claims based on plaintiffs’ omissions. He was not persuaded by the plaintiffs’ argument that Champion had a “duty to disclose information about the inclusion of heavy metals” and other materials in the products, assertions that were “preached” in “Champion h[olding] presents itself as a manufacturer of ‘premium’ or ‘high quality’ dog food”. The Tenth Circuit held that “[t]The problem with this argument is that it ignored that these self-promotional claims are not statements of fact because they are still bragging.”

The Tenth Circuit decision upholds the proposition that “[p]The offense does not become an actionable claim because the Plaintiffs object to some of the ingredients in a product, and more is needed to assert the misrepresentation claims sufficient to survive a motion to dismiss.

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