Antitrust Law Daily Wrap Up, ADVERTISING—D. Kan.: Claims based on statements about allegedly false pet food health risks dismissed, (Nov 7, 2024)

By Brian Craig, J.D.

The statements over grain-free pet food are not commercial speech and do not reference a specific product.

The federal district court in Kansas City, Kansas has dismissed Lanham Act claims alleging pet food manufacturer Hill’s Pet Nutrition, Inc., a subsidiary of Colgate-Palmolive Company, falsely claimed that pet food sold by Ketonatural Pet Foods, Inc. and other “boutique, exotic or grain-free” sellers was unhealthy. Ketonatural alleged that, because of rapid growth in the grain-free sector of the pet food industry, Hill’s Pet faced flat sales, rapid erosion of its market share, and a new competitive threat. Because of this, according to Ketonatural, Hill’s Pet and individual veterinarians decided to conduct a coordinated campaign to raise concerns about the risks of grain-free pet foods. The court dismissed the Lanham Act claims because the alleged statements about the health risks with grain-free pet food were not commercial speech and did not reference a specific product. Furthermore, the alleged statements concerning a link between certain grain-free pet diets and canine dilated cardiomyopathy were not false or misleading (Ketonatural Pet Foods, Inc. v. Hill’s Pet Nutrition, Inc., No. 24-2046-KHV (D. Kan. Nov. 5, 2024)).

KetoNatural Pet Foods, Inc. is a start-up company that sells grain-free pet food, pet treats, and supplement products. KetoNatural Pet Foods sued Hill’s Pet Nutrition, Inc.; Morris Animal Foundation; Mark Morris Institute, Inc.; and five individual veterinarians in the federal district court in Kansas alleging false advertising under the Lanham Act and civil conspiracy under Kansas state law. The complaint alleges that Hill’s Pet Nutrition and the veterinarians willfully misrepresented that BEG diets are linked with canine dilated cardiomyopathy (DCM) and heart disease. “BEG” diets are pet diets that are boutique, exotic, or grain-free. The complaint also alleges that Hill’s Pet Nutrition and veterinarians conspired to falsely convince dog owners that a diverse group of dog food products made by competitors increase the risk and severity of DCM. Hill’s Pet Nutrition moved to dismiss. On September 24, 2024, while the motion to dismiss was pending, the court ruled that Hill’s Pet Nutrition did not meet its burden to demonstrate that the Lanham Act suit was an exceptional case warranting a discovery stay.

Commercial speech. The court first concluded that the allegations fail to support a false advertising claim under the Lanham Act. To constitute commercial advertising under the Lanham Act, the statements must be (1) commercial speech; (2) by or on behalf of defendant who is in commercial competition with plaintiff; (3) for the purpose of influencing consumers to buy defendant’s products; and (4) disseminated sufficiently to the relevant purchasing public to constitute “advertising” or “promotion” within the industry. The court concluded that articles in scholarly journals, allegedly false statements by veterinarians to mainstream media and pet owners, and statements in educational programs for veterinarians are not considered advertisements or commercial speech.

Specific product references. The court also concluded that the alleged statements do not reference a specific product. The complaint does not allege that any category of the statements in question referenced specific pet-food manufacturers or companies, or contained pertinent price, product or sale information. KetoNatural Pet Foods fails to allege that statements by Hill’s Pet Nutrition ever referenced specific products of the parties or other manufacturers in the pet food market.

False and misleading. In addition, the court found that the complaint fails to plausibly allege that the statements made by the defendants are false and misleading. The Lanham Act prohibits two types of representations: those that (1) are literally false, either on their face or by necessary implication, and (2) are literally true but likely to mislead and confuse consumers. The plaintiff must allege facts which permit the court to infer more than the mere possibility of falsity. In this case, the court could not plausibly infer a link between BEG diets and DCM. The complaint only contains conclusory assertions that statements made by the defendants about a link between BEG diets and DCM are “false” and “bogus.” The court could not plausibly infer that BEG diets do not cause DCM. Thus, the court dismiss the false advertising claim under the Lanham Act.

Civil conspiracy. The court also dismissed the civil conspiracy claim. Under Kansas state law, a claim for civil conspiracy is not actionable without an underlying wrong which gives rise to a tortious cause of action. Because the court dismissed the Lanham Act claim, KetoNatural Pet Foods has not alleged any other underlying wrongdoing. Therefore, the court dismissed the civil conspiracy claim.

The Case is No. 24-2046-KHV.

Judge: Vratil, K.

Attorneys: Kate M. McGuire (Wolf Haldenstein Adler Freeman & Herz, LLP) for KetoNatural Pet Foods, Inc. Brian C. Fries (Lathrop GPM, LLP) for Hill's Pet Nutrition, Inc.

Companies: KetoNatural Pet Foods, Inc.; Hill's Pet Nutrition, Inc.

Cases: Advertising KansasNews