Champion Petfoods sells dog food that it markets as biologically appropriate, containing fresh and regional ingredients, and never outsourced. A purchaser of the products sued, alleging that these claims are false and misleading. On summary judgment, the Eastern District of Michigan dismissed the lawsuit, and the Seventh Circuit recently affirmed the decision. Here's why.

The plaintiff brought his claims under Wisconsin's deceptive trade practices act, which prohibits false, deceptive, or misleading representations or statements of fact in public advertisements or sales announcements. In order to state a claim, the plaintiff must prove that (1) the defendant made a representation to the public with the intent to induce an obligation, (2) the representation was untrue, deceptive, or misleading, and (3) the representation materially induced a pecuniary loss to the plaintiff. And, importantly, "Silence -- an omission to speak -- is insufficient to support a claim under the Act and thus it applies only to affirmative assertions, representations, or statements of fact that are false, deceptive, or misleading."

Biologically appropriate

On the packaging for certain of its dog food products, Champion markets the food as "biologically appropriate." The plaintiff argued that this statement communicates that the food contains only natural ingredients. Because there is a risk that the food contains BPA and pentobarbital, the plaintiff alleged that the statement is false and misleading.

In light of the fact that humans and animals are commonly exposed to BPA, that the company doesn't add BPA to the food, and that the level of BPA in the food poses no health risks to dogs, the court was not persuaded that the mere presence of some BPA in the food would make the "biologically appropriate" claim false or misleading. The court wrote, "Uncontested evidence in the record shows that the level of BPA purportedly in Champion's food poses no risk of adverse health effects in dogs."

The plaintiff's claim with respect to the risk of pentobarbital being in the food was dismissed on standing grounds.

Fresh and regional ingredients

Champion also markets its dog food as containing fresh, regional ingredients. Champion's packaging includes claims such as, "Grown close to home -- We focus on local ingredients that are ethically raised by people we know and trust, and delivered to our kitchens fresh or raw every day," "features unmatched inclusions of ranch-based Black Angus beef, wild boar, lamb, heritage pork and bison -- all ranched within our region and delivered FRESH EACH DAY," and "Our FRESH ingredients are raised on our region by people we know and trust." The plaintiff argued that these statements are false and misleading because the company doesn't just use fresh ingredients in its products and some of the ingredients are sourced from far away.

The court didn't believe, however, that the product packaging communicated that the product exclusively contains fresh, regional ingredients. The court wrote, "Champion's packaging did not represent that it was made with 100% fresh regional ingredients." In light of that fact, the court didn't believe that the claims were actionable since, "Champion's representations that its food is made with fresh regional ingredients are not clearly misleading -- its food does, in fact, contain some ingredients that are fresh and sourced regionally."

Never outsourced

Finally, Champion promotes its products with claims such as, "never outsourced" and as having been "prepared exclusively in our DogStar kitchens." The plaintiff argued that these claims are misleading because the company buys ingredients from outside sources.

Again, however, the 7th Circuit found that the plaintiff had failed to demonstrate that these statements are misleading. The court wrote, "Champion's representations about outsourcing reference that it prepares its food in its own kitchens, and Weaver does not content that Champion does not do so . . . . Given that the representations at issue are not misleading on their face when taken in context, to survive summary judgment [the plaintiff] must have offered evidence that a reasonable consumer would be materially misled."

Final thoughts

While Champion was successful here in convincing the court that its claims are not misleading (as it did in a similar lawsuit earlier this year), this case does highlight the risks associated with making claims that are potentially subject to multiple interpretations. While sometimes courts bring a fair degree of skepticism to these types of false advertising claims, they often are not so quick to dismiss them. It's important to consider, then, whether your claims are sufficiently clear and specific so as not to communicate unintended messages.

Weaver v. Champion Petfoods USA, 2021 WL 2678801 (7th Cir. 2021).