"trusted," "fresh regional ingredients," and "biologically appropriate" were dog food puffery

Renfro v. Champion Petfoods USA, Inc., No. 20-1274 (10th Cir. Feb. 15, 2022)

The court of appeals affirmed the dismissal of Colorado consumer class action claims against Champion’s advertising of its dog food. Champion marketed its Orijen product as “Biologically Appropriate” dog food that contained the “richness, freshness, and variety” of meats dogs were “evolved to eat” and that would “nourish as nature intended.” The Orijen packaging also advertised it was “Trusted Everywhere” and contained “Fresh Regional Ingredients” “Grown Close to Home” that were “ethically raised by people we know and trust[.]” Though Champion had a pentobarbital contamination issue with other foods, none challenged here were known to contain ingredients tainted with pentobarbital.

biologically appropriate (with TM symbol, sigh): "Nourish as nature intended ... meats that dogs are evolved to eat"

“Biologically Appropriate”: To the extent this was based on the pentobarbital contamination, but plaintiffs couldn’t have suffered any injury if they didn’t buy dog food with the objectionable ingredients. An alleged risk of contamination was not sufficient for Article III standing. But they did have standing to argue that this claim misrepresented that the dog food contained only natural, nourishing ingredients; promised specific ratios of meat and fish ingredients; misled consumers because Champion “failed to prevent” exceeding levels of heavy metals than those found in fresh ingredients; suggested no use of regrinds that were twice cooked and had no nutritional value; and obscured the amount of fresh, regional, and “Biologically Appropriate” ingredients they used. Still, this too was puffery. “No reasonable consumer would interpret this phrase to establish the inclusion of a specific amount of ingredients or the exclusion of other ingredients.” It wasn’t a measurable claim, other than a claim that the product was fit for dogs to consume. And as to the heavy metal contamination, plaintiffs didn’t plausibly allege what amount would render it unfit for dog consumption, or that their pets were actually harmed; given that heavy metals naturally occur in fish, that didn’t render the ads misleading.

"Trusted everywhere--trusted by pet lovers everywhere, Orijen is the fullest expression of our biologically appropriate (TM) and fresh regional ingredients commitment"

“Trusted Everywhere” and “Ingredients We Love [From] People We Trust” were mere puffery. Plaintiffs alleged that they understood these statements to mean Champion had a specific testing regimen and would not use certain ingredients, such as regrinds (filler that comes from already cooked dog and cat foods that failed nutritional testing); they complained of Champion’s failure to “consistently test its ingredients or finished [d]og [f]ood” for contamination.

"Fresh regional ingredients--Grown close to home--we focus on local ingredients that are ethically raised by people we know and trust ..."

“Fresh Regional Ingredients”: In context, these were “inherently subjective ideals” because no court or jury could decide what amount of fresh or regional ingredients “would be enough” to establish focus or commitment. Plaintiffs alleged the presence of a “material amount” of non-fresh and non-regional ingredients, but didn’t explain what amount of fresh ingredients a reasonable consumer would expect or why Champion’s advertising claims suggested that the food was entirely fresh or regional. “In fact, the ingredients listed on the Orijen and Acana packaging belie any understanding that the food is entirely fresh by listing non-fresh and non-regional ingredients…. No reasonable consumer would find Champion’s packaging misleading merely because the ingredients contained some percentage of non-fresh or non-regional ingredients when, as here, the packaging disclosed that very fact.”

“Trusted Everywhere” and “Ingredients We Love [From] People We Trust” were mere puffery. Plaintiffs alleged that they understood these statements to mean Champion had a specific testing regimen and would not use certain ingredients, such as regrinds (filler that comes from already cooked dog and cat foods that failed nutritional testing); they complained of Champion’s failure to “consistently test its ingredients or finished [d]og [f]ood” for contamination. But these implications were implausible as to these “vague generalities.” In contrast to previous cases where statements that a company had “zero unresolved customer issues” and a “history of 100% customer satisfaction” were falsifiable and quantifiable, these statements weren’t falsifiable—a useful way of testing for puffery.

Ingredients we love from people we know and trust--photo of New England fisherman

Omission-based claims also failed. Plaintiffs argued that Champion had a duty to disclose information about the inclusion of heavy metals, non-fresh ingredients, and regrinds because it held itself out to be “a manufacturer of ‘premium’ and ‘high quality’ dog food” and made the biologically appropriate/fresh/regionally sourced claims above. But those statements are puffery, and thus could not create a duty to disclose.