10th Circuit finds that disparagement by pet food company was commercial speech though affiliated vets'/nonprofits' speech wasn't

KetoNatural Pet Foods, Inc. v. Hill’s Pet Nutrition, Inc., No. 24-3185 (10th Cir. Jul. 14, 2026)

The court of appeals affirms in part and reverses in part the district court opinion dismissing Lanham Act claims against Hill’s and other defendants. Some of Hill’s challenged statements disparaging grain-free pet food (like KetoNatural’s) were plausibly literally false commercial speech subject to the Lanham Act, though not the statements from vets and nonprofits affiliated with Hill’s.

KetoNatural alleged that Hill’s and its partner veterinarians and non-profit organizations made false statements that grain-free pet food is linked to a higher risk of canine heart disease.

“Hill’s and two other pet food companies dominate the market for ‘traditional’ grain-containing complete-diet pet food in the United States.” But Hill’s’ sales declined by more than 20% because of “the non-traditional pet food boom,” in which startup KetoNatural participates. When Hill’s’ sales began to fall, it allegedly conspired with several veterinarians and two ostensibly independent non-profits to publicize the connection between grain-free diets and dilated cardiomyopathy, a deadly canine heart disease.

The court explains Hills’s’ links to vets and nonprofits:

To ensure veterinary patronage, Hill’s offers free continuing-education courses and literature to veterinarians and has partnered with veterinarian researchers to support its marketing. In return, Hill’s provides partner veterinarians with financial support and promotes their work through its website. Hill’s also funds research at various veterinary schools where partner veterinarians are located.

In addition to directly funding veterinarians, Hill’s maintains connections to the larger veterinary world by funding two non-profits that promote animal welfare. Morris Animal Foundation funds veterinary research projects and institutions, including the projects and institutions of the alleged co-conspirator veterinarians. And the Mark Morris Institute contributes to veterinary education by producing textbooks, continuing education courses, and course materials. Hill’s’ employees and directors have served on the boards of both organizations.

Allegedly because of Hill’s’ targeted marketing campaign, its revenues grew by more than 50% from 2018 to 2022, while sales in the boutique/exotic/grain-free (BEG) category reversed and began to decrease by nearly 6% per year. KetoNatural was not spared.

KetoNatural identified multiple sources of the allegedly deceptive claims: Hill’s claimed on its website that BEG diets were connected to canine heart disease and linked to veterinarians’ blog posts stating the same; Hill’s offered similar educational materials and continuing education courses to veterinarians on its website; vets’ public statements, including publicizing an FDA investigation that ultimately failed to establish a correlation between BEG diets and an increased risk of canine heart disease; vets’ scientific publications; vets’ blogs; a Facebook page and associated website promoting traditional pet food moderated/controlled by Hill’s and its vets, which published statements affirming the link between BEG diets and canine heart disease and deleted all comments contradicting the correlation; statements by the non-profits; and statements by independent vets “[i]ndoctrinated by the conspiracy’s educational efforts.”

The court recited the initial four-prong Gordon & Breach test for commercial advertising or promotion (the fact that Lexmark altered/removed (2) isn’t significant here): “(1) commercial speech; (2) by a defendant who is in commercial competition with plaintiff; (3) for the purpose of influencing consumers to buy defendant’s goods or services; (4) … disseminated sufficiently to the relevant purchasing public to constitute advertising or promotion within that industry.” Promotion, per past cases, means “a systematic communicative endeavor to persuade possible customers to buy the seller’s product,” even if not through publishing or broadcasting.

Starting with Hill’s’ website, including links to alleged co-conspirator vets’ articles, claiming that BEG diets were dangerous: Although this wasn’t a “classic advertising campaign,” the speech had an economic motivation and plausibly promoted Hill’s grain-based pet food as safer for dogs, even without naming Hill’s explicitly. Given Hill’s size—one of three dominant traditional pet food sellers— “its disparagement of non-traditional, BEG pet food is a tacit promotion of its own pet food.” And promoting a brand rather than a specific problem is still commercial. The same analysis applied to the links on Hill’s’ website, even if the speech on the linked webpages was not on its own commercial speech: “Because of the hyperlinks’ location and the fact that the linked pages disparage BEG dog foods, the linked webpages can plausibly be understood to promote Hill’s’ products.”

KetoNatural also plausibly alleged literal falsity under an establishment claim theory: it plausibly alleged that scientific studies did not establish the assertion for which they were cited. For example, the statement “[w]hat seems to be consistent is that [DCM] does appear to be more likely to occur in dogs eating boutique, grain-free, or exotic-ingredient diets” was an establishment claim “because it establishes a correlation between the diet and the disease by implicitly relying on some independent, objectively verifiable study showing consistent and higher rates of canine heart disease in BEG-eating dogs. And it is plausibly literally false because KetoNatural alleges that no study supports the correlation.” Note that in this example, the establishment claim is apparently a necessary implication—it’s the kind of claim that experts like vets wouldn’t make if it weren’t backed up by scientific evidence.

A similar analysis applied to at least some of the veterinary education materials on Hill’s’ website that said things like, “[b]y now, most veterinary professionals understand that there’s a link between BEG diets and atypical dog breeds developing DCM.” “[E]ducational or informational speech can become commercial when disseminated to promote the purchase of goods, as was alleged here.”

Other challenged sources were not actionable. KetoNatural alleged that Hill’s was vicariously liable for the Lanham Act violations by the alleged co-conspirator veterinarians. But these statements weren’t ads and didn’t reference a specific product, and thus weren’t commercial speech but First-Amendment-protected statements on matters of public concern. “[U]nlike Hill’s’ statements, the veterinarians’ statements are too attenuated from Hill’s” to have the necessary economic motivation or promote Hill’s specifically. “The speaker matters. The speaker provides context to the consumer that the speech may be commercial.” And unlike Hill’s, the vets didn’t have a big chunk of the market. [FWIW, the court’s attention to Hill’s market share seems wrong. If a new entrant said a bunch of blatant falsehoods about ingredients in its product, we’d want to call that commercial speech even if was careful to focus on ingredients also available from other sources.] Also, “KetoNatural does not plausibly allege that the veterinarians made these statements with economic motivation. Even granting that the named veterinarians conspired with Hill’s to disparage BEG dog food, KetoNatural does not plead sufficient factual allegations that the veterinarians made these statements in direct expectation of pecuniary gain from Hill’s.”

Receiving research funding from Hill’s, either directly or indirectly through their universities wasn’t enough; there was no allegation that research funding was contingent on the statements made in these blogs and social media appearances, or that the research funding depended on the topic or result of the research itself. “For a court to infer that the veterinarians’ speech was economically motivated, KetoNatural must at least plead facts that the veterinarians were compensated or otherwise received a quid pro quo from Hill’s for their speaking and writing.”

Similar analysis protected vets’ academic articles; the Facebook page and associated website; and non-affiliated vets’ statements. Along with their affirmative statements, the moderators deleted comments that disagreed with them, and the court said, “[t]he act of deleting posts is editorializing, which is speech, and thus arguably commercial speech,” citing Moody.  [We have totally lost the plot on “editorializing,” but I don’t think it matters here.] Along with the distance from Hill’s, the court commented, “we do not know who the Facebook moderators are, and most importantly, how they participated in and were economically motivated by the alleged conspiracy. KetoNatural admitted as much. It alleged only that the moderators ‘work[ed] closely’ with a veterinarian—but did not otherwise allege involvement in the conspiracy.”

Likewise, the complaint didn’t plausibly allege that the nonprofits engaged in commercial speech. They didn’t run ads or reference a specific product or brand, nor were there allegations that they were motivated by direct economic gain from Hill’s. “Allegations that Hill’s funds the Foundation and influences its executive decisions cannot satisfy the quid pro quo necessary to successfully allege that Hill’s’ gains economically motivated the Foundation to make such statements.”