Grain-free dog food marketing legally safe despite DCM

The term grain-free in dog food marketing likely won’t become a target for lawsuits against pet food brands.

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(Zerbor | Bigstock.com)
(Zerbor | Bigstock.com)

The term grain-free in dog food marketing likely won’t become a target for lawsuits against pet food brands, said one pet food industry lawyer, even for those brands involved in the U.S. Food and Drug Administration’s investigation of canine dilated cardiomyopathy cases correlated to grain-free dog food.

Michael Annis, partner with Husch Blackwell, discussed the concept of trigger terms in pet food labeling lawsuits, and why he believes grain-free pet food marketing will likely not become one.

Trigger terms are specific words or phrases used in marketing that may leave the pet food company open to legal action in various ways. Some terms may be loosely defined and open to interpretation by consumers and courts. Others of these marketing terms may be unsubstantiated or make unfounded claims about benefits and qualities.

Grain-free dog food not a trigger term

Annis does not believe grain-free is going to become a trigger term, at least not at this time.

“Grain-free could be the cause or a contributing cause to the ultimate issue/disease process, but no science is there to prove it,” he said. “Usually with trigger terms, they mean different things to different people (natural, wholesome, healthy, artisanal, handmade) and their vagaries of usage and meaning to the reasonable consumer are what make them the favorites of plaintiffs’ counsel. They can be hard to defend against particularly where there is no regulatory guidance on what they mean. Even then and even if used consistently, it is not necessarily a get out of jail free card.  But there is always a pleadable link between a consumer’s understanding of that term and a characteristic or ingredient of the thing that is inconsistent with that understanding.

“Here, there is no real link scientifically from the term to the ultimate issue. Not to say that folks will not try, but we think one would need more to make the claim viable,” he said.

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