Antitrust Law Daily Wrap Up, STATE UNFAIR TRADE PRACTICES—E.D. Mo.: Dog food purchaser failed to state claims against manufacturer, (Jan 30, 2014)

By Linda O’Brien, J.D., LL.M.

In a class action suit against a pet food manufacturer for false and misleading representations regarding their brand name dog food, a dog food purchaser failed to state claims of violations of the Missouri Merchandising Practices Act (MMPA), the federal district court in St. Louis has held (Miller v. Nestle Purina PetCare Co., January 28, 2014, Autrey, H.). The court granted the manufacturer’s motion to dismiss with leave to amend.

Nestle Purina PetCare Company is a manufacturer of pet food and pet products. Cyrus Miller filed a putative class action against Purina alleging that Purina falsely represented its Beneful brand of dog food products as healthy, wholesome, and nutritious dog food in violation of the MMPA. Miller claimed that his dog began to develop a number of symptoms after eating Beneful dog food, including lethargy and incontinence, and was ultimately diagnosed with severe bladder stones. After switching to a non-Purina medicated dry food suggested by the veterinarian, the dog’s bladder stones and incontinence subsided. Miller also alleged that the Beneful products caused similar illnesses and/or death in a significant number of dogs. Purina moved to dismiss the complaint.

The court found that Miller failed to allege sufficient facts to show misconduct by the defendant under the MMPA. To state a claim under the MMPA, the plaintiff must show that (1) he purchased the merchandise from the defendant; (2) for personal, family, or household use; (3) suffered an ascertainable loss of money or property; and (4) the ascertainable loss was the result of an unfair practice. The court noted that numerous other factors could have caused the dog’s symptoms. Moreover, Miller did not allege that the veterinarian diagnosed the bladder stones because of the certain type of dog food the dog ate.

Additionally, Miller failed to plead misrepresentation with specificity. He failed to detail what misrepresentations were made, where the statements were made, why the statements were misleading, and how the alleged misrepresentations were made to him. Thus, the complaint was insufficient to state a claim, the court concluded.

The case is No. 4:13CV283 HEA.

Attorneys: Jeffrey S. Nobel (Izard Nobel LLP) for Cyrus Miller. Douglas W. King (Kohn and Shands) for Nestle Purina PetCare Co.

Companies: Nestle Purina Petcare Co.

Cases: StateUnfairTradePractices MissouriNews