As we have previously blogged about, Champion Petfoods faced a consumer class action alleging fraud, negligence, and violations of the Wisconsin Deceptive Trade Practices Act for allegedly misleadingly representing its petfood products as “biologically appropriate,” “fresh” and “made with regional ingredients,” and “never outsourced.”

On June 30, 2021, the U.S. District Court for the 7^th Circuit affirmed a district court’s grant of summary judgment in favor of Champion Petfoods on all three of the claims.  The court affirmed summary judgment in favor of Champion Petfoods because, apart from his own testimony, Plaintiff offered no evidence that a reasonable consumer would be deceived. Citing to prior 7^th Circuit precedent, the Court held that extrinsic evidence of consumer deception such as consumer surveys or market research are necessary to survive summary judgment where the advertising is not clearly misleading on its face and materiality is in doubt.

The court held that the marketing representations were not clearly misleading.  Specifically, trace amounts of BPA found in the petfood did not make the “biologically appropriate” representation misleading because BPA was not intentionally added, it is present at very low levels that would not harm the pets, and both animals and humans face ubiquitous exposure to BPA. The Court also held that the “fresh” and “made with regional ingredients” representations were not claims that the products contained only fresh and regional ingredients, and that “never outsourced” meant only that Champion Petfoods manufactured the food itself, not that it also produced every ingredient in the petfood.

The 7^th Circuit’s holding provides a strong message to Plaintiffs asserting consumer deception causes of action that absent clearly misleading marketing, extrinsic evidence of consumer deception (i.e., something more than Plaintiff’s testimony) will be required to survive a motion for summary judgment. However, notably, the Court was careful to limit this standard to the summary judgment stage of litigation. A plaintiff still may survive a motion to dismiss without meeting this evidentiary standard since motions to dismiss are governed by a lower plausibility standard.