The Tenth Circuit recently affirmed dismissal of a proposed class action against a dog food manufacturer, finding that the putative class claims were nonactionable puffery and overly subjective.
In Renfro, et al. v. Champion Petfoods USA, Inc., et al., No. 20-1274, pet owner plaintiffs brought a proposed class action against Champion Petfoods alleging that the packaging for some of its dog food brands were false and misleading. Specifically, plaintiffs asserted claims for violation of the Colorado Consumer Protection Act, breach of express and implied warranty, fraudulent misrepresentation, fraudulent concealment, unjust enrichment, and negligence.
The Products at Issue
The dog food packaging asserted that the products were: “Biologically Appropriate”; “Trusted Everywhere”; using “Fresh and Regional Ingredients”; and containing “Ingredients We Love [from] People We Trust.” The labels stated the dog food contained “richness, freshness, and variety” of meats which dogs have “evolved to eat,” and that it would “nourish [dogs] as nature intended.” Some of the packaging indicated the product’s ingredients were “ethically raised by people we know and trust.” On the packaging for certain dog food formulas, the labels made more specific claims, such as the approximate amount of each type of fish included by weight.
The District of Colorado’s Decision
The U.S. District Court for the District of Colorado dismissed plaintiffs’ claims as either “unactionable puffery or overly subjective, and therefore not materially misleading to a reasonable consumer.” The district court acknowledged that whether a statement is false or misleading is ordinarily a question for the jury, but when statements are “so general or devoid of specific factual content,” they are incapable of empirical verification and cannot, “as a matter of law, give rise to liability.” The district court held such was the case here, and plaintiffs appealed.
The Tenth Circuit Affirms Dismissal of the Proposed Class Action
The Tenth Circuit affirmed, finding that plaintiffs failed to allege any materially false or misleading statements on Champion’s packaging because the at-issue phrases failed “to deceive or mislead reasonable consumers on any material fact.” The court stressed that, under Colorado law, “[m]ere statements of opinion such as puffing or praise of goods by seller is no warranty,” and instead are simply “those vague generalities that no reasonable person would rely on as assertions of particular facts. These kinds of statements cannot form the basis for any claim of misrepresentation of fact.” On the other hand, “if sellers make any statements of value or quality with the purpose of having them accepted as [a] fact, then they must be treated as representations of fact.”
The Tenth Circuit held that the phrases “Trusted Everywhere” and “Ingredients We Love [from] People We Trust” were “unactionable puffery.” It held that the statement “Fresh Regional Ingredients” could “only be understood in the context of the entire packaging of Champion’s dog food” and was ultimately “too . . . vague” to “mislead a reasonable consumer who examined the entire package.” The court affirmed that no reasonable consumer would have concluded the general statement “Biologically Appropriate” was a material misstatement of fact, despite allegations that dog food sold in 2018 contained beef tallow contaminated with pentobarbital – similar to claims we have previously explored on this blog which were also dismissed by the Eastern District of Wisconsin.
The Tenth Circuit similarly affirmed the district court’s dismissal of plaintiffs’ omission-based claims. It was not persuaded by plaintiffs’ argument that Champion had a “duty to disclose information about the inclusion of heavy metals” and other materials in the products – claims which were “predicated” on “Champion h[olding] itself out to be a manufacturer of ‘premium’ or ‘high quality’ dog food.” The Tenth Circuit held that “[t]he problem with this argument is that it ignored that these self-promotion claims are not statements of fact because they are still puffery.”
The Tenth Circuit’s decision confirms the proposition that “[p]uffery is not transformed into an actionable claim because the Plaintiffs’ object to some of the ingredients in” a product, and more is needed to assert claims for misrepresentation sufficient to survive a motion to dismiss.
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