RODNEY W. SIPPEL, District Judge.
This false advertising suit is before me on Defendant Nestlé Purina Petcare Company ("Purina")'s Motion to Dismiss the First Amended Complaint for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). Plaintiff Blue Buffalo Company Ltd. ("Blue Buffalo") opposes the motion and the issues are fully briefed. For the reasons set forth below, I will grant in part and deny in part Purina's motion to dismiss.
On October 15, 2014, Blue Buffalo filed this action against Purina in Connecticut state court alleging that Purina's advertising for several of its pet food products violates section 43 of 15 U.S.C. § 1125(a) ("the Lanham Act"), the Connecticut Unfair Trade Practices Act ("CUTPA"), provisions of the Connecticut Unfair Sales Practices Act ("CUSPA"), and Connecticut common law. On November 10, 2014, Purina removed this action to the United States District Court for the District of Connecticut based on diversity jurisdiction. On February 13, 2015, on Purina's motion and for the convenience of the parties, this case was transferred to this Court pursuant to 28 U.S.C. § 1404(a).
Blue Buffalo alleges that Purina has engaged in false advertising practices for ten of its pet food brands on television, in print, on its website, and on its packaging. In particular, Blue Buffalo challenges Purina's advertising for the following products: (a)
Purina now moves to dismiss the Complaint, arguing that: (1) Blue Buffalo's Complaint fails to plead a plausible theory that a "reasonable consumer" would be deceived and injured by the challenged advertising; (2) the challenged advertisements for Beggin' Strips, Beneful, Cat Chow Naturals, Just Right, and Fancy Feast consist of non-actionable puffery; and (3) Blue Buffalo's common law claim for unfair competition under Connecticut law should be dismissed because no such cause of action exists.
Blue Buffalo opposes Purina's motion to dismiss. Blue Buffalo contends that it has asserted plausible claims sufficient to meet federal notice pleading requirements, and that Purina's arguments for dismissal are merely factual defenses, which are not appropriate bases for dismissing a complaint.
This case was transferred pursuant to 28 U.S.C. § 1404(a) from the District of Connecticut, where it was properly filed. As a result, the laws of Connecticut and the United States Court of Appeals for the Second Circuit govern this action.
In ruling on a motion to dismiss, I must accept as true all factual allegations in the complaint and view them in the light most favorable to the plaintiff. Fed. R. Civ. P. (12)(b)(6);
Purina argues that the Complaint should be dismissed because an examination of the challenged advertisements shows that no "reasonable consumer" would be deceived as to the true nature of their products. Purina advances several arguments in support of its motion. I will address each of Purina's legal arguments and determine the appropriate legal standards to apply before analyzing whether Blue Buffalo has asserted plausible claims for each of Purina's challenged products.
In the Second Circuit, a plaintiff must prove the following elements to succeed in a claim for false advertising under section 43(a) of the Lanham Act: (1) a false statement of fact by the defendant in a commercial advertisement about its own or another's product; (2) the statement actually deceived or has the tendency to deceive a substantial segment of its audience; (3) the deception is material, in that it is likely to influence the purchasing decision; (4) the defendant caused its false statement to enter interstate commerce; and (5) the plaintiff has been or is likely to be injured as a result of the false statement, either by direct diversion of sales from itself to the defendant or by a lessening of the goodwill associated with its products.
Purina contends that, in evaluating whether a statement has actually deceived or has the tendency to deceive a substantial segment of its audience, a reasonable consumer standard applies. Although neither the parties, nor I, have found any Second Circuit case law that explicitly addresses whether the reasonable consumer standard applies to Lanham Act false advertising claims, it is reasonable to conclude that it does apply. The Second Circuit has discussed what a "reasonable buyer" would find to be deceptive in a Lanham Act case.
There are two different theories of recovery in a Lanham Act action for false advertising. "First, the plaintiff can demonstrate that the challenged advertisement is literally false."
"When an advertisement is shown to be literally or facially false, consumer deception is presumed, and `the court may grant relief without reference to the advertisement's [actual] impact on the buying public.'"
However, that is not to say that resolution of a false advertising case on a motion to dismiss is always inappropriate. Courts have dismissed false advertising and similar claims when, construing the factual allegations in the light most favorable to the plaintiff, the challenged advertising statements would not plausibly deceive a reasonable consumer.
Purina argues that, as a matter of law, no reasonable consumer could be confused by its advertising and product packaging because its products all contain accurate ingredient statements. Additionally, Purina argues that even if a consumer were confused by its advertising, the ingredient statements would clarify the confusion. Blue Buffalo disputes that the ingredient statement is dispositive of the deception inquiry. Additionally, Blue Buffalo contends that the effect an ingredient statement has on a consumer is a factual inquiry and therefore it is also an inappropriate determination in deciding a motion to dismiss.
While courts have found that an ingredient statement may serve to clarify a consumer's understanding of what is being advertised, the mere presence of an ingredient statement on the back of a product "does not eliminate the possibility that reasonable consumers may be misled."
Purina claims that any representations made in their product labels "cannot plausibly be false and misleading to a reasonable consumer" because it has complied with the Food and Drug Administration ("FDA")'s product identification regulations and the Association of American Feed Control Officials ("AAFCO")'s pet food labeling regulations, which Connecticut has codified into state law. Despite Purina's argument to the contrary, there is no legal authority for the proposition that no reasonable consumer could be misled by labeling that complies with FDA and AAFCO regulations. Indeed, the United States Supreme Court has held that compliance with labeling regulations does not preclude "comprehensive imposition of liability" under the Lanham Act.
Purina's final argument is that the challenged advertisements for its Beggin' Strips, Beneful, Cat Chow Naturals, Just Right, and Fancy Feast brands consist of non-actionable puffery. Blue Buffalo disputes that the challenged advertisements, statements, and product labels, when taken together, are mere puffery. Additionally, Blue Buffalo contends that the puffery determination is a factual inquiry and therefore inappropriate for a court to decide on a motion to dismiss.
Advertising claims that fall into the category of "puffing" do not constitute false advertising.
Puffery is often identified as a "general claim of superiority over comparable products that is so vague that it can be understood as nothing more than a mere expression of opinion."
Just like any other inquiry that ultimately rests on a factual determination, if, when accepting the plaintiff's factual allegations as true and construing them in the light most favorable to plaintiff, the plaintiff's claims are not plausible as a matter of law, they should be dismissed.
Blue Buffalo alleges that Purina's television commercials and packaging for its Beggin' Strips dog treats mislead consumers into thinking "that the product is bacon" or that its main ingredient is bacon, when in fact bacon is listed tenth on the ingredient list.
The following images are taken from Purina's television commercial for Beggin' Strips:
Blue Buffalo alleges that, along with the commercial, the fact that the treats are made to look like strips of bacon is misleading. Blue Buffalo also alleges that the Beggin' Strips packaging also reinforces the idea that Beggin' Strips are bacon, primarily because the text "made with real bacon" is included on the packaging, pictured here:
Purina counters that it does not advertise or imply that Beggin' Strips are comprised mainly of human quality bacon and that no reasonable consumer would draw that conclusion. Purina notes that the advertisements that reference bacon limit the description with qualifiers such as "made with real bacon" and "bacon flavored." Purina further argues that the ingredient list is transparent in showing that bacon is not a main ingredient, and that the label is in full compliance with AAFCO regulations. Finally, Purina contends that the Beggin' Strips advertisements are mere puffery because they are so "obviously hyperbolic" and exaggerated and that no reasonable consumer would take them at face value.
Reviewing the challenged statements, advertisements, and packaging under the appropriate standards, I find that Blue Buffalo has stated a plausible claim for false advertising under the Lanham Act. Purina's arguments may prove to be effective in summary judgment or at trial. However, because they center on a determination of what a reasonable consumer would believe, and because the Second Circuit requires courts to consider extrinsic evidence of consumer impact when determining whether a reasonable consumer would be misled, dismissing these claims from the Complaint would not be appropriate at this stage of the case. Additionally, even if extrinsic evidence were not required, it is not clear that the challenged statements and advertisements, when viewed together and in context, are mere puffery. While Purina is correct that the Beggin' Strips commercial featuring a dog looking for bacon is hyperbolic, hyperbole does not prevent an advertisement from being misleading.
Blue Buffalo alleges that Purina falsely advertises on television and on its packaging that the Beneful line of dog foods consists primarily of "Real Beef" and "Real Chicken," when in reality beef and chicken only make up a tiny fraction of the product. Blue Buffalo describes television advertisements for Beneful dog food, which "typically feature a cascade of apparently human-grade meats, vegetables and grains falling through the air." Blue Buffalo alleges that these images convey the false message that the dog food is comprised primarily of high-quality, wholesome ingredients.
Blue Buffalo alleges that the Beneful packaging reinforces this message because it contains pictures of high-quality meats and produce and describes the Beneful line as containing "real" ingredients. For example, Blue Buffalo attaches an image of the label for the "Original With Real Beef" flavor, and the "Healthy Fiesta" flavor, which contains the phrase "With Real Chicken and Wholesome Grains, Accented with Vitamin-Rich Vegetables and Avocado." An image of the "Original" flavor packaging is included here:
Purina contrasts Blue Buffalo's allegations with its packaging and the ingredient list, arguing that nothing about the label is literally false, and that it is not plausible that the small photos of meat, alongside larger photos of corn, wheat and other ingredients (all of which are in the product), with the reduced type-faced "With Real Beef" deceives a reasonable consumer into believing that the illustrated dry dog kibble is "primarily real beef." Purina also argues that the Beneful advertisements are mere puffery because it is not realistic or reasonable for a consumer to believe that dog food kibbles would feature pieces of fresh, human grade food as main ingredients.
Much like its challenges to the Beggin' Strips claims, Purina's arguments here focus mainly on what a reasonable consumer would understand. Because such a determination requires the consideration of extrinsic evidence, I cannot find that the claim fails as a matter of law. Furthermore, even if extrinsic evidence were not required, I cannot say that Blue Buffalo has failed to plausibly allege that repeated depictions of whole pieces of beef and avocado would mislead a reasonable consumer into thinking that the Beneful dog food contains greater amounts of those ingredients. As a result, dismissing these claims from the Complaint would not be appropriate at this stage of the case.
Blue Buffalo alleges that Purina's packaging and advertising for its Cat Chow Naturals dry cat food sends a false and misleading message that salmon is one of the main ingredients when it is only eighth on the ingredient list. Blue Buffalo claims that this false and misleading message is evidenced by the packaging, which features a picture of a cutting board with a large cut of salmon filet, pictured here:
Blue Buffalo also cites to one commercial, titled "Coming Home," which it alleges draws a direct comparison between the owner's diet and the cat's diet, a screenshot from which is pictured here:
In the commercial, the cat's owner says that both she and the cat have started eating healthier. A voiceover then states, "in time you realize: the better you eat, the better you feel," and "these days we both eat smarter." The advertisement shows the cat's owner taking a large filet of salmon out of the refrigerator just before feeding her cat with Cat Chow Naturals, while a voiceover states that Cat Chow Naturals is "made with real chicken and salmon."
Purina argues that the statements "in time you realize: the better you eat, the better you feel," and "these days we both eat smarter" in the commercial are mere puffery because they contain no objective or specific claims, but rather, are purely conjectural statements of opinion. Additionally, Purina argues that whether something is a "smart" choice cannot be verified or proven true or false, and therefore it is puffery. Blue Buffalo contends that whether those statements in isolation constitute puffery is irrelevant because the full context must be considered, and taken together, the statements and images falsely communicate that salmon is a main ingredient.
I agree with Purina that the statements "in time you realize: the better you eat, the better you feel," and "these days we both eat smarter" are mere puffery because they are simply subjective opinions that cannot be proven true or false.
Blue Buffalo alleges that the name of Purina's Fancy Feast Filet Mignon Flavor with Real Seafood and Shrimp is false and misleading because the product does not contain any filet mignon, nor does it contain beef of any kind. Rather, according to the Complaint, "filet mignon flavor" is the seventeenth ingredient. Blue Buffalo also alleges that the part of the name "with real seafood and shrimp" is misleading because fish and shrimp are the eighth and ninth ingredients. Blue Buffalo further argues that advertising the brand as "gourmet" on Purina's website, and including a gold seal with the words "100% Complete & Balanced Nutrition" on the packaging, is false and misleading because this cat food is made with inferior ingredients. An image of the packaging is shown here:
Purina argues that its labeling is truthful, and the challenged statements would not mislead consumers into believing that the product contains filet mignon. Purina further argues that the statements are puffery, and to the extent that the word "gourmet" implies quality, "[g]eneral assertions of superiority, as opposed to factual assertions, are deemed `puffery' that is unlikely to deceive as a matter of law."
Applying the appropriate standards, I find that Blue Buffalo's Complaint does not plausibly establish that a reasonable consumer would believe that Fancy Feast Filet Mignon Flavor with Real Seafood and Shrimp contains the expensive ingredient filet mignon just because it is labeled as "filet mignon flavor." I also find that the use of the word "gourmet" is non-actionable puffery because it is a general assertion of superiority or opinion, incapable of being proven true or false. Furthermore, the gold seal with the phrase "100% Complete & Balanced Nutrition" is mere puffery, despite containing a potentially quantifiable metric of "100%," because whether something is complete or balanced nutrition is merely an opinion about quality and is not capable of being proven true or false.
However, Blue Buffalo has sufficiently plead that the other challenged statements and images, when taken together, could plausibly mislead a reasonable consumer into thinking that the product contains at least some beef, or that seafood and salmon are primary ingredients. As a result, dismissing Blue Buffalo's claim that Purina's advertising for its Fancy Feast Filet Mignon Flavor with Real Seafood and Shrimp is false and misleading because a reasonable consumer would believe that seafood and shrimp are main ingredients, or that beef is an ingredient, would not be appropriate at this stage of the case.
The Complaint alleges that the advertising and packaging for Purina's ONE SMARTBLEND brand of dog food and the Pro Plan brand of dog and cat food are false and misleading because they are advertised as containing rice, which conveys the false message that those products are made with a healthy and nutritious grain, when in fact those products are made with brewers rice, a filler with little or no nutritional value. For example, the word "rice" is in the name of the ONE SMARTBLEND "Lamb and Rice Formula," "Chicken and Rice Formula," and "Small Bites Beef and Rice Formula," as well the Pro Plan "Salmon & Rice Formula."
Purina argues that Blue Buffalo has failed to provide any factual support for the allegation that brewer's rice is a filler with little or no nutritional value. Purina further argues that the ingredient labels specify that the products contain "brewer's rice," and therefore the label is not false.
While Blue Buffalo's allegations are not well-supported in the Complaint, it did allege that brewer's rice:
Compl. ¶ 37. Accepting these factual allegations as true, and under the appropriate standards, I find that Blue Buffalo has "nudged their claims across the line from conceivable to plausible."
Blue Buffalo alleges that the advertising and packaging for Purina's Chef Michael's brand of dog food is false and deceptive because it sends the message that the dog food is made with quality pieces of chicken and beef when it is not. An image of the packaging, as well as a close-up of the label of the Chef Michael's "Oven Roasted Chicken Flavor" is reproduced below:
Blue Buffalo alleges that the images and wording on the packaging convey the false message that the "Tender Pieces" are whole pieces of chicken, when in fact they include soy products and other ingredients. Blue Buffalo also alleges that the Chef Michael's website tagline, "It's not just dog food.
Purina contends that the images do not convey this message, and that the "Tender Piece" pictured is "clearly dried dog food." Additionally, Purina argues that the packaging language and the ingredient label accurately convey that chicken is a primary ingredient, and never implies that it is the only ingredient.
Blue Buffalo's allegation that consumers would believe that Chef Michael's is made by a chef is a conclusory allegation with no factual support. I cannot say, however that it is implausible that the images of the "Tender Pieces" would mislead a reasonable consumer into thinking those pieces are whole pieces of chicken. As a result, dismissing Blue Buffalo's claim that Purina's advertising and packaging falsely mislead consumers into thinking the "Tender Pieces" are whole pieces of chicken would not be appropriate at this stage of the case.
Blue Buffalo alleges that Purina's advertisements for its Just Right brand of dog food are false and deceptive because they suggest that Purina will create and deliver a "unique blend" of ingredients to each consumer. For example, the Complaint alleges that, on the JustRightPetFood.com website, Purina offers "Food as unique as your dog," "Personalized nutrition for your dog," "Unique Blends," "Tailored Nutrition" and "a personalized blend to match your dog's nutritional needs." Purina allegedly reinforces the deception that its Just Right dog food is personalized for each dog by requiring dog owners to fill out a "pet profile" for his or her dog in which the owner must identify characteristics including the dog's breed, age, weight, level of activity, coat quality, and stool consistency. After answering all of the pet profile questions, the dog owner is presented with "Your Blend," which Blue Buffalo claims further contributes to the false message that the ingredient blend is personalized and unique to that specific owner's dog. Blue Buffalo alleges that these statements, taken together, are false and misleading because the Just Right dog food is not personalized or unique, but consists of only a limited set of basic ingredient formulas, each of which is substantially similar to the others, with variation only on the "protein preference" (lamb, chicken or salmon) and whether to exclude soy or grains from the formula.
A screenshot from the Just Right website is depicted here:
Blue Buffalo also alleges that Purina's advertisements state "we believe the best nutrition is personalized," which falsely communicates to consumers that Just Right is not only personalized, but also superior to other dog foods.
Purina argues that no reasonable consumer would believe that no other consumer can purchase the same formula based on the advertisements, but rather, consumers understand that this product provides consumers with a way to customize their pet food by selecting the ingredients. Additionally, Purina argues that the description of the food as "unique," along with the statement "we believe the best nutrition is personalized," is mere puffery because they are subjective statements of superiority that cannot be proven true or false.
Reviewing the Complaint under the appropriate standards, I find that Purina's statements advertising Just Right as "the best" and claiming that "the best nutrition is personalized" are nonactionable puffery. As other courts have explained, advertising a product as "the best" is puffery because "consumers understand that the advertiser is not contending that the particular attribute or feature can only be found in its product."
However, I cannot find that, as a matter of law, Purina's advertisements as to the uniqueness and personalization of Just Right are mere puffery, or that they are not false or misleading. While Purina's arguments may be persuasive on summary judgment or at trial, I find that the Complaint sufficiently alleges that Purina's Just Right advertisements, taken together, suggest greater levels of personalization than they really contain. As a result, dismissing Blue Buffalo's claim that Purina advertises Just Right dog food as providing greater levels of personalization than what is actually delivered would not be appropriate at this stage of the case.
Blue Buffalo alleges that Purina intentionally misled consumers when it represented that its Waggin' Train and Canyon Creek Ranch chicken and duck jerky treats were wholesome and suitable for consumption by dogs when Purina knew that they caused sickness and death. The Complaint alleges that Purina promoted these treats as being "natural," "wholesome," "healthy" and made from "only the most simple and pure ingredients." It further alleges that Purina failed to disclose the material facts that the jerky treats: (i) had proven poisonous to dogs, and were implicated in the illness and/or deaths of hundreds of pets, (ii) were manufactured and processed in Chinese facilities that were not subject to the same oversight as their counterparts in the United States, and (iii) had been exposed to, or included, harmful ingredients, including illegal antibiotics, diseased bird parts, and/or other toxic ingredients. Additionally, the Complaint alleges that Purina disregarded thousands of consumer complaints and multiple warnings from the United States Food and Drug Administration about the safety of these products, and instead continued to issue public statements falsely claiming that the treats were manufactured under "the highest quality and safety standards" and were not responsible for any illness, up and until it withdrew the jerky treats from the market in early 2013.
Purina contends that Blue Buffalo claims are merely conclusory allegations based on the existence of what it describes as "(unproven) allegations regarding the safety of all jerky style dog treats." Purina notes that Blue Buffalo did not attach the packaging or labeling for either the Waggin' Train or Canyon Creek Ranch products, nor did it provide any specific details on how the labeling was in fact false.
While Blue Buffalo's allegations are not supported with extrinsic evidence, they are also more than conclusory statements. Blue Buffalo has alleged that Purina marketed these products as natural, wholesome, and healthy pet foods, despite the occurrence of sickness and death in dogs that were consuming the products, and despite having received FDA warnings and consumer complaints about the products. Blue Buffalo further alleges that there were problems with Purina's manufacturing processes. Under the appropriate standards, I find that Blue Buffalo has sufficiently alleged its claim for false advertising for the Waggin' Train and Canyon Creek Ranch products. As a result, dismissing these claims from the Complaint would not be appropriate at this stage of the case.
Purina argues that Blue Buffalo's claim alleging unfair competition under Connecticut common law should be dismissed because such a cause of action does not exist. Purina contends that courts construe claims alleging unfair competition to be claims brought under the Connecticut Unfair Trade Practice Act ("CUPTA"). Purina relies on
Purina's reliance on
Under the appropriate standards, and reviewing the challenged advertisements, labels, and statements in context, I conclude that Blue Buffalo has sufficiently alleged the falsity or misleading nature of Purina's challenged advertisements for each of the challenged products. However, because some of the theories under which Blue Buffalo alleges false advertising violations do not meet federal pleading standards, those portions of Blue Buffalo's claims will be dismissed. As a result, Blue Buffalo shall amend its Complaint in accordance with the terms of this Memorandum and Order.
Accordingly,