The U.S. Court of Appeals for the 10th Circuit ruled July 14 that a class-action lawsuit against Hill's Pet Nutrition can proceed in part, reversing a lower court's 2024 dismissal of claims that the company made false statements linking grain-free pet food to canine heart disease.
Case background
The lawsuit, KetoNatural Pet Foods Inc. v. Hill's Pet Nutrition Inc., was filed in 2024 in the U.S. District Court for the District of Kansas by KetoNatural Pet Foods, a grain-free pet food company. The suit, filed as a class action, alleged that Hill's and a network of affiliated veterinarians and nonprofit organizations conspired to falsely link so-called "BEG" — boutique, exotic-ingredient or grain-free — pet foods to dilated cardiomyopathy, a heart condition in dogs.
Wolf Haldenstein Adler Freeman & Herz LLP, the firm representing KetoNatural, said at the time of filing that the suit sought $2.6 billion in damages, which the firm described as the largest damages claim in U.S. pet food industry history. Thomas Burt, a partner at the firm, said the suit alleged Hill's misled pet owners, influenced a Food and Drug Administration investigation and caused market panic that financially harmed smaller pet food brands.
The district court dismissed the case in 2024, ruling that KetoNatural had not adequately alleged that the challenged statements were commercial speech or that they were literally false.
Appellate court reverses dismissal in part
In its July 14 opinion, a three-judge appellate panel — Chief Judge Timothy Tymkovich, along with Judges Gregory Phillips and Carolyn McHugh — reversed that dismissal in part. The court found KetoNatural plausibly alleged that certain statements on Hill's website and in Hill's veterinary education materials were commercial speech that was literally false under the Lanham Act's "establishment claim doctrine," which allows false-advertising claims when cited scientific data doesn't support the conclusions drawn from it.
According to the opinion, KetoNatural alleged that as the grain-free pet food market grew in the early 2010s, Hill's market share fell more than 20% from 2014 to 2017, dropping the company from third- to fourth-largest seller of complete-diet dog food in the U.S. The court wrote that Hill's responded with a marketing strategy built around "fabricating a link" between BEG pet foods and canine heart disease.
Claims against veterinarians, nonprofits dismissed
The panel upheld dismissal of claims against the affiliated veterinarians, two nonprofit organizations — Morris Animal Foundation and Mark Morris Institute — and a related Facebook group, finding those statements did not qualify as commercial speech under the Lanham Act because they were too far removed from direct promotion of Hill's products.
The case now returns to the district court, which the appellate panel directed to determine the appropriate legal pleading standard for the surviving claims and to decide whether KetoNatural has adequately pleaded a Lanham Act violation under that standard. The panel also remanded a related civil conspiracy claim under Kansas law.
KetoNatural outlines next steps
Daniel Schulof, CEO of KetoNatural Pet Foods, said in an email to Petfood Industry that discovery, the fact-finding phase of the case, begins immediately. He said KetoNatural intends to seek public release of deposition transcripts from individuals connected to the case, along with Hill's internal DCM-related records.
Schulof also said the company is evaluating whether to pursue retractions from media outlets that reported on a link between grain-free diets and canine heart disease, as well as potential action from the FDA's Center for Veterinary Medicine and state veterinary licensing boards.
Schulof pointed to a study Hill's released after the suit was filed, which he said found no link between BEG diets and canine heart disease. He noted Hill's had access to the study's findings for about four years before making them public.
Hill's Pet Nutrition did not respond to a request for comment.
