Pet Food ‘Champion’: Seventh Circuit Confirms Rejection of False Advertising Lawsuit Against Pet Food Company | Proskauer – Advertising law

We recently blogged about Champion Petfoods’ success in a Minnesota court case alleging it misrepresented the quality of its dog food and ingredients. Well, Champion Petfoods has returned to defend his title in another case involving almost identical allegations, this time in the Seventh Circuit. The Seventh Circuit recently upheld a Wisconsin district court ruling granting summary judgment in favor of Champion Petfoods. In doing so, the court sent a strong message to suitors that “summary judgment is the proverbial ‘set up or shut up’ moment in a trial. Here, the plaintiff’s failure to “present” evidence to support his claims cost him a chance at trial. Weaver v. Champion Petfoods USA Inc., n ° 120-2235 (7e Cir. June 30, 2021).

Champion Petfoods packaging touts “organically appropriate” dog food made with “fresh regional ingredients” prepared in their “award-winning kitchens” – “never outsourced”. The applicant alleged that these statements were false and misleading because, according to the applicant: 1) there is a risk that Champion’s dog food contains BPA and pentobarbital; 2) Champion uses frozen ingredients, crushes refreshed ingredients and includes ingredients that have passed their expiration date; 3) Champion receives ingredients from international sources such as New Zealand, Norway and Latin America, far from its kitchens in Canada and Kentucky; and 4) Champion purchases ingredients from third party sources.

However, the Court ruled that the applicant’s evidence was insufficient to support his claims. In particular, the plaintiff did not provide evidence of a consumer survey or expert testimony to support its liability case (although it did submit two expert damage reports). Instead, the Applicant based his allegations entirely on his own testimony. The court concluded that this was not enough to survive summary judgment.

First, the plaintiff’s testimony alone was not sufficient to convince the Court that a reasonable consumer would believe that “biologically appropriate” meant completely BPA Free, in particular (1) Champion does not add BPA to their dog food, and (2) humans and animals are commonly exposed to BPA. Champion also submitted unrefuted expert testimony that the levels of BPA in his food couldn’t harm a dog. The Court also found that the plaintiff lacked standing to argue that any dog ​​food he purchased contained pentobarbital, as the only source of any potential pentobarbital contamination would have arisen months after the plaintiff quit. to buy Champion dog food.

The plaintiff’s testimony was also insufficient to persuade the Court that a reasonable consumer would be misled into believing that “local and fresh ingredients” mean that the food contains exclusively local and fresh ingredients. The Seventh Circuit cited the reasoning of the District Court in Song Against Champion (a decision we previously wrote about on a blog), that “much like a statement that mashed potatoes are made with” real butter “does not imply that the only the fat used is real butter, and just like a claim that graham crackers are made with “real honey” does not imply that the only the sweetener used is real honey, so the statement that a bag of dog food contains “regional fresh ingredients” does not imply that it is made up of exclusively fresh and regional ingredients. The Court therefore concluded that the plaintiff’s own expectation that the ingredients in dog food would come from uniquely from regional sources was not enough to prove that other consumers have been similarly misled, especially since Champion has never claimed that its ingredients are 100% regional.

This case is a reminder that even if class action plaintiffs are sometimes allowed to get away with “because I say so” at the plea stage, much more is needed during summary judgment.

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