The Seventh Circuit affirmed the grant of summary judgment to a pet food maker in a putative class action alleging Champion Petfoods USA Inc. misrepresented features of its dog food. Weaver v. Champion Petfoods USA Inc., No. 20-2235, 2021 WL 2678801, at *1 (7th Cir. June 30, 2021).

Plaintiff alleged he purchased purchased Champion dog food from 2008 until August 2017. He purchased two different varieties —Six Fish and Regional Red—for his golden retrievers.  Weaver contended that Champion’s packaging violated the Wisconsin Deceptive Trades Practices Act because its alleged representations that its food is biologically appropriate, made including fresh regional ingredients, and not outsourced, were false or misleading.  Weaver contended  Champion’s food is not made solely from fresh ingredients. It contains frozen ingredients and ingredients that were previously frozen. Second, he alleged that Champion does not source all its ingredients from areas close to its plants in Morinville, Canada and Auburn, Kentucky. It sources some ingredients internationally, including from Europe, New Zealand, Norway, and Latin America. Third, Weaver also argued  that Champion’s packaging is misleading because there is a risk that its food contains Bisphenol A (“BPA”) . BPA is a chemical used primarily to make plastics and resins. Given that plastics and resins are used in food storage containers, humans and animals are regularly exposed to BPA because it can leach from containers into food. They are also exposed to BPA in their environments, as studies have measured levels of BPA in the air, dust, and water. Champion does not add BPA to its food.

Regarding biologically appropriate, the Seventh Circuit found Weaver’s argument  unpersuasive because he failed to provide evidence that the phrase “biologically appropriate” is likely to materially mislead a reasonable consumer into believing that the product was BPA-free. It is undisputed that humans and animals are commonly exposed to BPA, Champion does not add BPA to its food, and the level of BPA purportedly in Champion’s food poses no health risks to dogs. Despite these uncontested facts, Weaver insisted that the mere risk that any small amount of BPA is present in Champion’s foods rendered its representations that its food is biologically appropriate misleading to a reasonable consumer. In support, Weaver relies solely on his own testimony that he would consider no amount of BPA to be biologically appropriate. The court was not persuaded.

Regarding the claim about regionally sourced ingredients, the Seventh Circuit reiterated the near universal view that references to ingredients used do not imply that ingredient is used exclusively. See Kennedy v. Mondelez Glob. LLC, No. 19-cv-302, 2020 WL 4006197, at *4 (E.D.N.Y. July 10, 2020) (noting that graham crackers that were advertised as “made with real honey” were not misleading even though other sweeteners and additives were also used); Sarr v. BEF Foods, Inc., No. 18-cv-6409, 2020 WL 729883, at *4 (E.D.N.Y. Feb. 13, 2020) (determining that a label that states that mashed potatoes are made with “real butter” does not imply that other fats are also not used); Henderson v. Gruma Corp., No. 10-cv-04173, 2011 WL 1362188, at *12 (C.D. Cal. Apr. 11, 2011) (determining that crackers labeled as made “with Garden Vegetables” was not misleading as a matter of law because “the labeling statement does not claim a specific amount of vegetables in the product, but rather speaks to their presence in the product”).

Regarding the claim that “never outsourced” is misleading, plaintiff admitted that he knew defendant did not make or grow all its ingredients– so he knew there was some degree of “outsourcing.” Moreover,  he fell short of introducing sufficient evidence from which a jury could find that reasonable consumers were misled.  A fair reading of the labels show that the dog food labels don’t claim all of the ingredients are 100% locally sourced and fresh and therefore they aren’t misleading.

Weaver’s fraud and negligence claims failed for the same reason as his claims arising under the Act—he failed to provide sufficient evidence from which a reasonable jury could find Champion’s representations false or misleading. He did not provide evidence that a reasonable consumer would be misled by Champion’s representations that its food is biologically appropriate, contains fresh regional ingredients, and is never outsourced.  2021 WL 2678801, at *8.

Finally, as a help to all you drafters of summary judgment motions, is this quote:

Summary judgment is the proverbial “put up or shut up” moment in a lawsuit, and Weaver has failed to offer sufficient evidence to support his claims.

Weaver v. Champion Petfoods USA Inc., No. 20-2235, 2021 WL 2678801, at *8 (7th Cir. June 30, 2021).