Judge: Plaintiffs have work to do to press labeling fraud claim vs makers of Orijen, Acana brand cat foods

By Scott Holland | Jan 25, 2019

Carsondelake [CC BY-SA 3.0 (https://creativecommons.org/licenses/by-sa/3.0)]

A federal judge took a large bite out of a class action complaint involving the makers of premium cat food.

In an opinion issued Jan. 16, U.S. District Judge Virginia Kendall dismissed all but three counts of a lawsuit against Kentucky-based Champion Petfoods, which makes Orijen and Acana cat food it advertises as “biologically appropriate,” made from “fresh regional ingredients” and “guaranteed to keep your cat or kitten healthy, happy and strong.”

Deborah Leppert, of Ohio, and Zachary Chernik, of Illinois, accused the company of breaching express and implied warranty, negligent misrepresentation, common law fraud, fraudulent omission and unjust enrichment, as well as state law claims for two plaintiffs’ classes of Ohio and Illinois residents. They said the company failed to mention, in product labels or advertising, the foods contain arsenic, mercury, lead, cadmium and bisphenol A at levels “known to pose health risks to humans and animals.”

The complaint includes no allegations that Leppert or any member of the proposed Ohio class saw Champion marketing or bought Champion cat food in Illinois, Kendall explained, dismissing all connected claims for lack of personal jurisdiction.

In analyzing the underlying case theory, Kendall highlighted the distinction between Champion’s position that metals and BPA present in its foods were not at harmful levels and the plaintiffs’ argument that failure to disclose any such amounts is tantamount to deception and fraud.

Kendall noted the plaintiffs acknowledged federal agencies “have set specific standards for acceptable levels of these substances in certain liquids and in human food, and that level is not zero.” Further, she said, the complaint lacks allegations linking a pet’s harm to these metals or BPA in their food. And though Champion did say certain protein ingredients it used are “deemed fit for human consumption before inclusion into Origen ingredients,” the company never advertised the finished product as safe for humans.

Ultimately, Kendall explained, Champion didn’t misrepresent whether its food was safe for cats to eat.

What remains then are allegations of whether Champion erred by marketing the foods as “healthy, natural and high quality,” Kendall wrote, adding it’s “entirely plausible that a consumer purchasing what she believes to be healthy, natural and high-quality cat food would not purchase that cat food if she knew it contained any amount of heavy metals and/or BPA.”

Since the metals are associated with potential health risks, Kendall explained, the allegation the foods are “biologically appropriate” may proceed. As BPA is an industrial chemical, it likely is neither “biologically appropriate” nor a “fresh regional ingredient.” This finding also allowed the unjust enrichment, common law fraud and Illinois Consumer Fraud and Deceptive Business Practices claim to proceed.

Kendall said Champion’s statement it is “dedicated to the highest standards of authenticity, nutritional integrity, and food safety” is vague enough to not be considered an express warranty under Illinois law. She also said the plaintiffs failed to adequately notify the company of the alleged defects before filing the lawsuit, defeating both the express and implied warranty claims.

The plaintiffs’ fraudulent omissions claim also failed, Kendall wrote, because “no formal fiduciary relationship exists” between Champion and potential customers, nor did the plaintiffs allege the company had the type of overwhelming influence or dominance required to establish the kind of trust relationship that can support a fraudulent omissions lawsuit.

All of Kendall’s dismissals were without prejudice, and she granted the plaintiffs until Feb. 14 to amend the complaint.

Plaintiffs are represented by attorneys with the firms of Lite DePalma Greenberg LLC, of Chicago, and Lockridge Grundal Nauen & Holstein PLLP, of Minneapolis.

Champion is represented by the firm of Greenberg Traurig, with offices in Chicago and Miami.

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Organizations in this Story

Greenberg Traurig Lite DePalma Greenberg LLP Lockridge Grindal Nauen PLLP U.S. District Court for the Northern District of Illinois

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