Wednesday, June 15, 2016

A dog's breakfast of false advertising counterclaims

Blue Buffalo Co. v. Nestlé Purina Petcare Co., No. 4:15 CV 384, 2016 WL 3227676 (E.D. Mo. Jun. 13, 2016)
Blue Buffalo sued Purina for false advertising; Purina counterclaimed.  On a motion to dismiss the counterclaims, the court got rid of most and kept a few. 
Super 7 Lifesource Bits: Purina alleged that Blue Buffalo’s use of the term “Super 7 Lifesource Bits” and associated graphics suggested that they were superior in nutrition to other pet foods and that the products contained a significant amount of the ingredients found in the Lifesource Bits, when the depicted fruits and vegetables likely only made up .25% of the product overall. The challenged ads, packaging, and website statements, taken as a whole, supported a plausible claim for false advertising, though Purina’s claims were weak. Consumer reaction evidence could prove them.
Website image touting "exclusive LifeSource Bits"
Savory Sizzlers: Purina alleged that Blue Buffalo falsely advertised its Kitchen Cravings Savory Sizzlers Homestyle Dog Treats as containing bacon as a main ingredient when in fact the product contained no bacon. The front of the pork-based product packaging states in prominent lettering that it features “USA PORK FIRST INGREDIENT.” Likewise, the chicken-based version states “USA CHICKEN FIRST INGREDIENT” prominently on the front of the package. “The only mention of bacon is on the back of the package, which states in small lettering ‘If there’s one thing that will bring dogs running, it’s the smell of bacon sizzling in the pan. Tasty BLUE Sizzlers are the naturally healthy alternative to the real thing, so you can feel good about rewarding your canine companion with the bacon flavor he craves.’”  Purina challenged this language, plus the clear window on the package showing that it was shaped like bacon strips.
The court concluded that “no reasonable consumer could believe that Savory Sizzlers contain bacon as a main ingredient,” because the package clearly stated that pork or chicken was the first ingredient [ed. note: I’m a vegetarian, but isn’t bacon made of pork?], and “the only mention of bacon is in the context of a statement about how Savory Sizzlers are not bacon, but rather, are an alternative to bacon.” Dismissal on the pleadings was appropriate because  “the claim alleges that a consumer will read a true statement on a package and will then disregard ‘well-known facts of life’ and assume things about the products other than what the statement actually says.”
Health Bars: Purina challenged the names and packaging of two BLUE Health Bars, alleging that they indicated that certain ingredients were primary: Health Bars Baked with Banana and Yogurt (with yellow and cream packaging; bananas and yogurt are ingredients four and five) and Health Bars Baked with Bacon, Egg & Cheese (red packaging; bacon is the fifth ingredient and dried egg and cheese powder are seventh and eighth).  But this didn’t plausibly allege misleadingness. These were dog biscuits; “reasonable consumers know as a fact of life that biscuits are not composed primarily of fruit and yogurt, but rather, like all baked goods, are primarily composed of grains and flours…. While color schemes are often used to connote flavor, they do not necessarily imply ingredient primacy.”
Family Favorite Recipes: Mom’s Chicken Pie, Shepherd’s Pie, Backyard BBQ, Turkey Day Feast, and Turducken flavors have photos on the product labels depicting the traditional title dish, allegedly misleading consumers into thinking that the can contains human-grade meals comprised of identical ingredients and ratios of ingredients as those in the traditional dish, in combination with the “family favorite recipes” tagline.  Specifically, Mom’s Chicken Pie flavor doesn’t contain any pie crust or wheat; Shepherd’s Pie doesn’t contain equal parts of meat mixture and potatoes [and no actual shepherd either]; and the rest aren’t comprised of high-quality, whole ingredients, nor are some of the ingredients depicted primary ingredients.  The court found these allegations to “defy credulity. No reasonable consumer would expect these cans of dog food to contain whole turkeys, turduckens, or pies. Nor would any reasonable consumer believe that the Family Favorite Recipes’ references to traditional American meals mean that the same, human grade ingredients are in the cans of dog food.”  [But see the experience of Serena Williams.]
Wild Bones Dental Chews: Purina alleged that the packaging misled consumers into thinking the product contains actual bone. Membership in the Wilderness product line allegedly implied “a link to nature and containing ingredients one would find in the wild,” and other products in the Wilderness line contained real elk antlers and beef bones, strengthening the impression.  Also, the bones were in the shape and color of “true bones,” visible through a clear window in the packaging.  Again, the court was distinctly unimpressed.  The “bone” shape was “the shape of a cartoon bone, sized just like a dog biscuit, and is embossed with the word ‘WILDNERNESS.’ The Wild Bones do not even remotely resemble real bones.”
Healthy Gourmet Flaked Fish & Shrimp Entrée: the product name allegedly consumers into believing that the product was “comprised primarily of wholesome seafood and shrimp,” while shrimp was only the eighth ingredient, though “ocean fish” was the first ingredient, and “fish broth” was the second. While the allegation that the product was not “comprised primarily of wholesome seafood” was therefore self-defeating, it was tenuously plausible that consumers would believe that shrimp comprised more of the product than it actually does.  The claim “is not so incredible that a reasonable consumer would have to disregard well-known facts of life to believe it.”

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