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In Kibble Quibble, Tenth Circuit Reaffirms That False Advertising Plaintiffs Must Have A Bone to Pick With a Specific, Falsifiable Statement

In the recent case Renfro v. Champion Petfoods, the Tenth Circuit affirmed a district court’s dismissal of a putative class action alleging that Champion Petfoods had deceptively marketed its Orijen-brand dog food.  The plaintiffs’ claim centered around an incident in 2018, when Champion Petfoods learned that some ingredients it had sourced for Orijen had been contaminated.  According to the plaintiffs, this incident—as well as other aspects of Champion’s sourcing and manufacturing process—rendered false Champion’s marketing claims that the products’ ingredients were generally high-quality.  In rejecting this contention, the Tenth Circuit reaffirmed a core principle of false advertising law: that false advertising claims must be based on alleged false assertions of fact, not vague or unprovable marketing statements.  The Tenth Circuit also reaffirmed the important principle that only plaintiffs who have been directly and personally harmed by a purportedly misleading practice have Article III standing to bring suit regarding that practice.

The Plaintiffs’ Claims

Champion Petfoods markets Orijen as designed to mirror the varied diet of dogs in the wild.  On Orijen’s packaging, Champion asserts that the product is “Trusted Everywhere”; contains “Fresh Regional Ingredients” and “Ingredients we Love [From] People we Trust”; and is “Biologically Appropriate” for dogs.  In 2018, the Food and Drug Administration (“FDA”) informed Champion that beef fat Champion had sourced for use in some Orijen products had become contaminated with pentobarbital, a pharmaceutical.  But despite this identified risk of contamination, no hazardous dog food reached  consumers.

In the wake of this incident, purchasers of Orijen brought a putative class action in the United States District Court for the District of Colorado, alleging that Champion had violated the Colorado Consumer Protection Act, Colo. Rev. Stat. § 6-1-105(e), and Colorado common law in its marketing of Orijen.  They claimed that the four statements noted above were false and misleading, given that some Orijen ingredients had in fact been contaminated with pentobarbital and that others were not “fresh” or “regional” because they had previously been frozen, processed, or purchased from a supplier distant from Champion’s manufacturing facility.  Champion moved to dismiss, and the district court granted its motion.

The District Court’s Decision

The district court held that the plaintiffs had not plausibly alleged that the challenged statements were “affirmations of verifiable fact that a reasonable person could rely on in their purchasing decisions,” as is required to state a claim under the Colorado Consumer Protection Act.  The statements “Trusted Everywhere” and “Ingredients we Love [From] People we Trust”  were “instead . . . examples of marketing puffery.” Renfro v. Champion Petfoods USA, Inc., 475 F. Supp. 3d 1242, 1248 (D. Colo. 2020).  The district court reached the same result with respect to the “Fresh Regional Ingredients” statement, concluding that the plaintiffs had not plausibly alleged that this statement was an actionable misrepresentation because the terms “fresh” and “regional” do not convey “empirically verifiable factual content.”  Id. at 1249.  Thus, the plaintiffs had not plausibly alleged that these statements were actionable misrepresentations.  Id.  Finally, the district court dismissed the “Biologically Appropriate” claim for lack of standing.  The plaintiffs’ claims regarding the “Biologically Appropriate” were predicated solely on their allegation that they were at risk of purchasing pentobarbital-contaminated Orijen dog food, and that such dog food is not biologically appropriate for dogs.  Id. at 1248.  But the plaintiffs had not purchased any Orijen dog food during the period before the FDA notified Champion that it had purchased contaminated beef fat, and thus had not been harmed by any misrepresentation that the dog food was “Biologically Appropriate,” regardless of whether that claim was empirically verifiable.  Id.   (This ruling also disposed of the plaintiffs’ claims regarding the other marketing statements, to the extent those claims were predicated on the risk of pentobarbital contamination as opposed to Orijen’s sourcing practices.)

The Tenth Circuit’s Affirmance

On appeal, the plaintiffs argued that the “Trusted Everywhere” and “Ingredients we Love [From] People we Trust” statements were not puffery because the plaintiffs understood them to have a specific meaning.  In particular, the plaintiffs alleged they understand those statements to mean that Champion (a) used a specific testing regimen to ensure the safety of Orijen and (b) did not use certain undesirable ingredients, such as reprocessed filler from prior batches of dog food that failed nutritional testing.  But the Tenth Circuit held that this interpretation was too farfetched to support a plausible consumer fraud claim.  The court thus affirmed the district court’s dismissal of the claims premised on the “Trusted Everywhere” and “Ingredients we Love [From] People we Trust” statements, holding that the plaintiffs “implausibly allege these vague packaging statements to mean something they do not say.”  Renfro v. Champion Petfoods USA, Inc, 25 F.4th 1293 (10th Cir. 2022).  Moreover, the Tenth Circuit also noted that “testing for falsifiability is helpful in determining whether a claim is actionable as a misrepresentation of fact or mere puffery,” and that the plaintiffs had failed to plausibly allege that these “vague and unprovable” claims were falsifiable.  Id.  at 1304.  In other words, because a statement such as “Trusted Everywhere” or “Ingredients We Love from People We Trust” cannot be proven false, it cannot give rise to a consumer fraud claim.

The Tenth Circuit reached a similar conclusion on the “Fresh Regional Ingredients” statement, affirming the district court’s finding that that statement would not mislead a reasonable consumer because the qualities of being “fresh” or “regional” “are not subject to measurement” and cannot be “empirically verifi[ed].”  Id. at 1304-05.  The court also noted that even if the term “Fresh Regional Ingredients” could be empirically verified, any claim stemming from that statement would fail because statements on food packaging must be understood in the context of the entire package, and the Orijen ingredients list noted certain non-fresh and non-regional ingredients.  Id.

Finally, the Tenth Circuit affirmed the dismissal of the claim predicated on the “Biologically Appropriate” statement.  The panel concurred with the district court’s standing analysis.  But it also noted that, even if the plaintiffs had standing to pursue a claim based on the “Biologically Appropriate” statement because they had actually purchased pentobarbital-contaminated dog food, any such claim would fail because it is “not a specific representation of fact” and “[n]o reasonable consumer would interpret this phrase to establish the inclusion of a specific amount of ingredients or the exclusion of other ingredients.” Id. at 1305-06.

Key Takeaways

Renfro addresses several themes that we have discussed frequently on this blog.  The case reinforces the principle to survive a motion to dismiss in federal court, a false advertising plaintiff must premise his or her claims on an objectively reasonable interpretation of a specific, falsifiable advertising statement.  Marketing generalities are likely to be deemed non-actionable puffery.  And the case serves as a reminder that when assessing whether a packaging statement is likely to mislead a reasonable consumer, a court must consider the statement in the context of the packaging—including the ingredient list—as a whole, rather than evaluating the disputed statement in isolation.

Finally, the decision reinforces that the Article III standing requirement demands that a false advertising plaintiff demonstrate physical or economic “injury-in-fact” directly flowing from the disputed statement.  Renfro highlights the difficulties of meeting this requirement for plaintiffs whose claims are premised on an allegation that a product’s advertising was misleading because it failed to disclose a defect in the product.  Because these claims often involve situations like the one in Renfro, where a product is contaminated or defective for a limited period of time, plaintiffs who cannot allege that they purchased a defective or contaminated product cannot demonstrate injury-in-fact.  Renfro shows how easily these common pitfalls can land a false advertising suit in the doghouse. 

Correction: An earlier version of this post mistakenly asserted that Champion recalled Orijen dog food in 2018 due to pentobarbital contamination.  Because no hazardous dog food reached consumers, no recall was necessary.