An Illinois federal court has dismissed part of a putative class action alleging that Champion Petfoods USA Inc. sold foods for animals that contained elevated levels of several heavy metals—including arsenic, cadmium, mercury and lead—as well as bisphenol A (BPA), pentobarbital, “non-regional and non-fresh ingredients, or unnatural or other ingredients that do not conform to the dog foods’ packaging or advertising.” Zarinebaf v. Champion Petfoods USA Inc., No. 18-6951 (N.D. Ill., E. Div., entered July 30, 2019). The court found that the plaintiffs were not alleging the dog foods to contain unsafe levels of the materials at issue; rather, the plaintiffs’ claims were plausible because they alleged that the marketing led them to believe the products to be “healthy, natural and high-quality” but that a reasonable consumer would not have purchased the products knowing that they contained heavy metals and BPA.

The court dismissed claims relying on the presence of pentobarbital in Champion’s dog food brands because although the plaintiffs could show that Champion sold a batch of dog food containing the sedative, they did not have evidence to prove that they actually purchased dog food from that batch. The parties also disputed the phrase “biologically appropriate,” which Champion called “nonactionable puffery” and the plaintiffs asserted was a “misleading” “nutritional statement.” The court sided with the plaintiffs, finding the phrase to be an assertion of fact.

The court also dismissed allegations relying on representations that the food was “delivered daily” and made with “fresh regional ingredients,” finding that the plaintiffs failed to show how “delivered daily” was incorrect merely because Champion used frozen ingredients to produce the food. “Finally, the phrase ‘Made with Fresh and Natural Ingredients’ is not actionable because Plaintiffs do not allege how or where Defendants marketed its dog food using that phrase, nor do they include any pictures featuring the phrase on Defendants’ packaging or advertisements or provide any details about how or where the phrase is used,” the court held. Further, the allegations relying on a “Never Outsourced” representation were held to be insufficient because “[t]he allegation that Defendants ‘outsource the production of their meals,’ without more detail, is conclusory and speculative.” The court allowed to continue the plaintiff’s allegations relying on “Fresh Regional Ingredients”—finding that the plaintiffs successfully alleged “that the dog foods contain heavy metals and BPA, which are not ‘fresh regional ingredient[s]'”—as well as “Delivering Nutrients Naturally,” also based on the BPA content.

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For decades, manufacturers, distributors and retailers at every link in the food chain have come to Shook, Hardy & Bacon to partner with a legal team that understands the issues they face in today's evolving food production industry. Shook attorneys work with some of the world's largest food, beverage and agribusiness companies to establish preventative measures, conduct internal audits, develop public relations strategies, and advance tort reform initiatives.

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