Health Law Daily Consumer pet food concerns lack bite, court calls them ‘true and irrelevant’
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Monday, February 11, 2019

Consumer pet food concerns lack bite, court calls them ‘true and irrelevant’

By Bryant Storm, J.D.

Claims that pet food contained lead, arsenic, cadmium, and mercury did not survive a manufacturer’s summary judgement motion because the consumer failed to provide evidence of harm.

Unfair trade practice and unjust enrichment claims challenging the quality of a pet food containing heavy metals must be supported by evidence that the presence of heavy metals renders the pet food harmful. A district court dismissed a consumer’s claims challenging Champion Petfoods USA, Inc.’s marketing claims regarding Orijen Original and Orijen Senior pet food because the consumer did not provide evidence as to how the presence of heavy metals undermined the quality or safety of the product (Loeb v. Champion Petfoods USA, Inc., February 6, 2019, Stadtmueller, J.).

Labeling. Champion Petfoods USA, Inc. manufacturers the pet food Orijen Original and Orijen Senior. The consumer purchased Orijen Original and Orijen Senior for her two dogs from November 2016 through March 2018. The pet food packaging contained several statements about the quality of the food, including: "ingredients we love from people we know and trust," "the fullest expression of our biologically appropriate and fresh regional ingredients commitment," and featuring ingredients "from minimally processed poultry, fish and eggs that are deemed fit for human consumption prior to inclusion in our foods." The packaging does not, however, represent that the products are free of heavy metals.

Allegations. The consumer brought state-based unfair trade practice and adjustment enrichment claims, asserting that the packaging implied a "premium, healthy, locally sourced dog food, implicitly free of harmful contaminants," when, in reality, the products contained harmful heavy metals. The manufacturer countered that it did not intentionally add heavy metals and, instead, the metals were in the dog food because they were present in the plants and animals which were processed into the food. Additionally, the manufacturer offered evidence—a National Research Council published study titled Mineral Tolerance of Animals—which supported the contention that the arsenic, cadmium, lead, and mercury in Orijen dog food products are a fraction of the maximum tolerable levels (MTLs). The manufacturer’s MTL argument was supported by testimony of a veterinary toxicologist. The consumer challenged the veracity of the study and the toxicologist’s testimony but failed to provide a countervailing expert opinion.

The consumer did offer an FDA reference chart (the Total Diet Study (TDS)) detailing the contaminant levels in various consumer food products. She used the TDS to assert that contaminant levels in human foods (chicken, turkey, and eggs) were lower than Orijen dog food, rendering Orijen tainted and unfit for consumption. The manufacturer countered that the TDS is merely a chart, offering no conclusions at all. The consumer’s only expert, a scholar in the field of psychology and marketing, testified that Orijen’s packaging is carefully designed to convey a belief to consumers that the product is of high quality and made from fresh ingredients fit for human consumption. The consumer asserted, had she known the products contained heavy metals and were "not fit for human consumption" she would not have purchased them.

The court held that the consumer’s unfair trade practice claims could not proceed because, whereas the manufacturer offered evidence that Orijen pet food is safe, she failed to provide any evidence that the heavy metals in Orijen pet food make the products harmful. Although the consumer pointed out that the heavy metal levels in Orijen are higher than those in the chicken, turkey, and eggs tested in the TDS, the court deemed those assertions "true and irrelevant." The court explained that the TDS comparison was insufficient to demonstrate how or why the heavy metals rendered the pet food unsafe. The court ruled, in the absence of evidence that the heavy metals render the pet food dangerous, the manufacturer’s motion for summary judgment must be granted. The court dismissed the claims with prejudice.

The case is No. 18-CV-494-JPS.

Attorneys: Erich P. Schork (Barnow and Associates, P.C.) for Kellie Loeb. Mark E. Schmidt (von Briesen & Roper, s.c.) for Champion Petfoods USA Inc. and Champion Petfoods LP.

Companies: Champion Petfoods USA Inc.; Champion Petfoods LP

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