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Renfro v. Champion Petfoods USA, Inc.

No. 20-1274. D.Colo. Judge Tymkovich. Class Action—False and Misleading Advertisements—Colorado Consumer Protection Act—Motion to Dismiss—Standing.

February 14, 2022


Plaintiffs are a group of pet owners who brought a class action against defendant Champion Petfoods USA, Inc., alleging that representations on defendant’s dog food packaging were false and misleading. The packaging advertised the food as “Biologically Appropriate,” “Trusted Everywhere,” using “Fresh Regional Ingredients,” and containing “Ingredients We Love [From] People We Trust.” Unrelated to the packaging, in 2018, defendant was notified by the FDA that some of the beef fat used in certain pet formulas had been contaminated with pentobarbital, a controlled substance. However, none of the dog food purchased by plaintiffs contained ingredients tainted with pentobarbital. The district court dismissed all of plaintiffs’ claims, finding that the advertising statements were unactionable puffery or overtly subjective and therefore not materially misleading to a reasonable consumer.

Plaintiffs contended on appeal that the district court erred in determining that the statements “Trusted Everywhere” and “Ingredients We Love [From] People We Trust” are unactionable puffery because plaintiffs understood them to mean that defendant 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). The Colorado Consumer Protection Act (CCPA) governs this case. For an advertising statement to constitute an actionable misrepresentation, the CCPA requires a false statement of fact that either induces the recipient to act or has the capacity to deceive the recipient. The CCPA also makes actionable certain omissions of fact. Here, the statements “Trusted Everywhere” and “Ingredients We Love [From] People We Trust” are unactionable puffery, because no reasonable consumer would have concluded these vague generalities were anything but boilerplate statements of opinion. Plaintiffs also failed to demonstrate that the claims are falsifiable and thus statements of fact. Further, the district court properly concluded that the statement “Fresh Regional Ingredients” was either not empirically verifiable or unactionable puffery; this vague claim is not subject to measurement. Regarding the “Biologically Appropriate” claim, plaintiffs did not allege that the ingredients did not approximate what a dog may find in a natural environment or that the dog food caused any actual harm to their pets. The only conclusion that a reasonable consumer could draw from a package that made this claim was that the food was fit for dogs to consume. Plaintiffs’ complaint thus failed to allege that defendant’s “Biologically Appropriate” advertising claim was false or misleading.

Plaintiffs also argued that the district court improperly dismissed their omission-based claims under the CCPA and fraudulent concealment theories. Plaintiffs forfeited the CCPA omission claim by failing to argue the claim in the district court. On the fraudulent concealment claim, plaintiffs argued that defendant had a duty to disclose information about the inclusion of heavy metals, non-fresh ingredients, and regrinds because it touted its dog food as “Biologically Appropriate and comprised of Fresh and Regionally sourced ingredients.” Plaintiffs contended that the inclusion of certain ingredients makes those positive claims misleading. However, this argument ignores the fact that these self-promoting claims are puffery, not statements of fact.

The dismissal of plaintiffs’ class action complaint was affirmed.

Official US Court of Appeals for the Tenth Circuit proceedings can be found at the US Court of Appeals for the Tenth Circuit website.

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