Antitrust Law Daily Wrap Up, ADVERTISING—E.D. Mo.: Purina may be liable for misrepresenting main ingredients in pet foods, (Jun 11, 2015)

By Jody Coultas, J.D.

Whether Nestlé Purina Petcare Company misled consumers regarding the main ingredients in its pet food products was best left to a fact finder in its denial of Purina’s motion to dismiss Lanham Act claims filed by competitor The Blue Buffalo Company, Ltd., according to the federal district court in St. Louis (The Blue Buffalo Company Ltd. v. Nestlé Purina Petcare Company, June 10, 2015, Sippel, R.).

Blue Buffalo alleged that Purina falsely advertised ten of its pet food brands on television, in print, on its website, and on its packaging in violation of the Lanham Act, the Connecticut Unfair Trade Practices Act (CUTPA), provisions of the Connecticut Unfair Sales Practices Act (CUSPA), and Connecticut common law. Purina moved to dismiss.

Because the case was transferred pursuant to 28 U.S.C. § 1404(a) from the District of Connecticut, where it was properly filed, to the Missouri court, the laws of Connecticut and the United States Court of Appeals for the Second Circuit governed this action.

Questions of fact precluded dismissal of many of Blue Buffalo’s Lanham Act claims, according to the court. Whether an advertisement was deceptive was generally a question and could usually be resolved through a motion to dismiss. Purina argued that no “reasonable consumer” would be deceived as to the true nature of their products because its products all contained accurate ingredient statements. Although the Second Circuit had not explicitly addressed whether the reasonable consumer standard applied to Lanham Act false advertising claims, it was reasonable to conclude that it did apply. While an ingredient list may serve to clarify a consumer’s understanding of what is being advertised, the mere presence of an ingredient list does not eliminate the possibility that a reasonable consumer may be deceived. Therefore, a factual inquiry was necessary.

Purina argued that any representations made in their product labels could not be misleading to a reasonable consumer because it complied with the Food and Drug Administration’s product identification regulations and the Association of American Feed Control Official’s pet food labeling regulations, which Connecticut codified into state law. While compliance with regulatory authority may be relevant, it did not preclude liability for implied false advertising as a matter of law.

Purina’s argued that the advertisements for its Beggin’ Strips, Beneful, Cat Chow Naturals, Just Right, and Fancy Feast brands consisted of non-actionable puffery. Blue Buffalo alleged that Purina overstated the amount of bacon in its Beggin’ Strips, the beef and chicken in Beneful, the salmon in Cat Chow, and the beef, seafood, and salmon in Fancy Feast Filet Mignon Flavor with Real Seafood and Shrimp. Determining whether claims were puffery was generally improper for resolution on a motion to dismiss. Puffery is a general claim of superiority that is so vague that it can only understood as a mere expression of opinion. Whether Purina misled consumers into thinking certain ingredients were the main ingredients in its products was a question of fact that precluded summary judgment.

Blue Buffalo’s claim that a reasonable consumer would believe that Fancy Feast Filet Mignon Flavor with Real Seafood and Shrimp contained filet mignon just because it was labeled as “filet mignon flavor” was dismissed by the court. The use of the word “gourmet” by Purina on its Fancy Feast label was non-actionable puffery because it was a general assertion of superiority or opinion, incapable of being proven true or false. Also, a gold seal with the phrase “100% Complete & Balanced Nutrition” was mere puffery because whether something was complete or balanced nutrition was merely an opinion about quality and was not capable of being proven true or false. Purina’s statements advertising it's Just Right dog food as “the best” and claiming that “the best nutrition is personalized” were non-actionable puffery because “consumers understand that the advertiser is not contending that the particular attribute or feature can only be found in its product.”

The case is No. 4:15 CV 384 RWS

Attorneys: Adeel A. Mangi (Patterson and Belknap), Darren W. Johnson (Paul, Weiss, Rifkind, Wharton & Garrison, LLP), and David H. Luce (Carmody MacDonald PC) for Blue Buffalo Co., Ltd. Carmine R. Zarlenga, III (Mayer Brown LLP), and David A. Roodman (Bryan Cave LLP) for Nestle Purina PetCare Co.

Companies: The Blue Buffalo Company Ltd.; Nestlé Purina Petcare Company

Cases: Advertising MissouriNews