A dog’s breakfast of false advertising counterclaims

Blue Buffalo Co. v.
Nestlé Purina Petcare Co., No. 4:15 CV 384, 2016 WL 3227676 (E.D. Mo. Jun. 13,
2016)
 
Blue Buffalo sued
Purina for false advertising; Purina counterclaimed.  On a motion to dismiss the counterclaims, the
court got rid of most and kept a few. 
 
Super 7 Lifesource
Bits: Purina alleged that Blue Buffalo’s use of the term “Super 7 Lifesource
Bits” and associated graphics suggested that they were superior in nutrition to
other pet foods and that the products contained a significant amount of the
ingredients found in the Lifesource Bits, when the depicted fruits and
vegetables likely only made up .25% of the product overall. The challenged ads,
packaging, and website statements, taken as a whole, supported a plausible
claim for false advertising, though Purina’s claims were weak. Consumer
reaction evidence could prove them.
 

Website image touting “exclusive LifeSource Bits”

Savory Sizzlers: Purina
alleged that Blue Buffalo falsely advertised its Kitchen Cravings Savory
Sizzlers Homestyle Dog Treats as containing bacon as a main ingredient when in
fact the product contained no bacon. The front of the pork-based product
packaging states in prominent lettering that it features “USA PORK FIRST
INGREDIENT.” Likewise, the chicken-based version states “USA CHICKEN FIRST
INGREDIENT” prominently on the front of the package. “The only mention of bacon
is on the back of the package, which states in small lettering ‘If there’s one
thing that will bring dogs running, it’s the smell of bacon sizzling in the
pan. Tasty BLUE Sizzlers are the naturally healthy alternative to the real
thing, so you can feel good about rewarding your canine companion with the
bacon flavor he craves.’”  Purina
challenged this language, plus the clear window on the package showing that it
was shaped like bacon strips.
 
The court concluded
that “no reasonable consumer could believe that Savory Sizzlers contain bacon
as a main ingredient,” because the package clearly stated that pork or chicken
was the first ingredient [ed. note: I’m a vegetarian, but isn’t bacon made of
pork?], and “the only mention of bacon is in the context of a statement about
how Savory Sizzlers are not bacon, but rather, are an alternative to bacon.” Dismissal
on the pleadings was appropriate because  “the claim alleges that a consumer will read a
true statement on a package and will then disregard ‘well-known facts of life’
and assume things about the products other than what the statement actually
says.”
 
Health Bars: Purina
challenged the names and packaging of two BLUE Health Bars, alleging that they
indicated that certain ingredients were primary: Health Bars Baked with Banana
and Yogurt (with yellow and cream packaging; bananas and yogurt are ingredients
four and five) and Health Bars Baked with Bacon, Egg & Cheese (red
packaging; bacon is the fifth ingredient and dried egg and cheese powder are
seventh and eighth).  But this didn’t
plausibly allege misleadingness. These were dog biscuits; “reasonable consumers
know as a fact of life that biscuits are not composed primarily of fruit and
yogurt, but rather, like all baked goods, are primarily composed of grains and
flours…. While color schemes are often used to connote flavor, they do not
necessarily imply ingredient primacy.”
 
Family Favorite
Recipes: Mom’s Chicken Pie, Shepherd’s Pie, Backyard BBQ, Turkey Day Feast, and
Turducken flavors have photos on the product labels depicting the traditional
title dish, allegedly misleading consumers into thinking that the can contains
human-grade meals comprised of identical ingredients and ratios of ingredients
as those in the traditional dish, in combination with the “family favorite recipes”
tagline.  Specifically, Mom’s Chicken Pie
flavor doesn’t contain any pie crust or wheat; Shepherd’s Pie doesn’t contain
equal parts of meat mixture and potatoes [and no actual
shepherd
either]; and the rest aren’t comprised of high-quality, whole
ingredients, nor are some of the ingredients depicted primary ingredients.  The court found these allegations to “defy
credulity. No reasonable consumer would expect these cans of dog food to
contain whole turkeys, turduckens, or pies. Nor would any reasonable consumer
believe that the Family Favorite Recipes’ references to traditional American
meals mean that the same, human grade ingredients are in the cans of dog food.”  [But see
the experience of Serena Williams
.]
 
Wild Bones Dental Chews:
Purina alleged that the packaging misled consumers into thinking the product
contains actual bone. Membership in the Wilderness product line allegedly
implied “a link to nature and containing ingredients one would find in the
wild,” and other products in the Wilderness line contained real elk antlers and
beef bones, strengthening the impression. 
Also, the bones were in the shape and color of “true bones,” visible
through a clear window in the packaging. 
Again, the court was distinctly unimpressed.  The “bone” shape was “the shape of a cartoon
bone, sized just like a dog biscuit, and is embossed with the word ‘WILDNERNESS.’
The Wild Bones do not even remotely resemble real bones.”
 
Healthy Gourmet
Flaked Fish & Shrimp Entrée: the product name allegedly consumers into
believing that the product was “comprised primarily of wholesome seafood and
shrimp,” while shrimp was only the eighth ingredient, though “ocean fish” was
the first ingredient, and “fish broth” was the second. While the allegation
that the product was not “comprised primarily of wholesome seafood” was
therefore self-defeating, it was tenuously plausible that consumers would
believe that shrimp comprised more of the product than it actually does.  The claim “is not so incredible that a
reasonable consumer would have to disregard well-known facts of life to believe
it.”

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