I have the great privilege of representing several participants in the pet food industry, and from experience I can report that litigation against product offerings is a top-of-mind concern. In that vein, I want to address those types of claims we have been seeing lodged against products in the pet food space, focusing on marketing and labeling claims, and to also give you a glimpse into the future as to what types of marketing claims we see on the not-too-distant horizon. In the end, I will provide some helpful pointers on how to avoid these claims in the first instance, and when you cannot, to place yourself in the best position possible to defend them.
Claims of false or misleading advertising and labeling claims
As any experienced practitioner in the pet food industry can tell you, where human food goes, the pet food business is sure to follow. This is particularly true with the advancement of humanization and premiumization of pet food products. And the most significant plague impacting human food products over the past decade is undoubtedly claims of false, deceptive and misleading adverting and labeling claims, much of which has been directed to statements relating to finished product characteristics, ingredients and their sourcing. The same is holding true in the pet food space. Whether label and marketing claims are lodged as putative consumer class actions or brought by competitors, they create significant disruptions to business operations and strategic planning.
Consumer class actions most often arise under state consumer protection laws, which prohibit the use of statements and imagery that could mislead or deceive reasonable consumers. In general, the claims focus on statements made that are inconsistent with reality or alleged consumer perception about the message they deliver. The claims almost universally assert that the statement in question is made with the intention of grabbing the consumer’s attention and drawing them into a purchasing decision, most often associated with assertions that the consumer overpaid for the product as a result of the allegedly deceptive claim. Nearly all readers will have heard of the historic spate of lawsuits directed to use of the term “all natural” and the attendant difficultly in defending against such claims.
Top attention-grabbing marketing claims
As noted in a recent article by Petfood Industry Senior Reporter Tim Wall (“Most influential pet food marketing claim: no by-products,” October 2022), a recent survey of pet owners provided details on what types of marketing claims are most likely to influence their purchasing decision. Consistent with what we are seeing at the courthouse, the highest-ranking consumer attention-grabbers are statements relating to ingredient make-up (e.g., “no by-products,” “no soy,” “high protein” and “grain free”) and to the source of the product (e.g., “Made in the USA”). But also of note are claims directed to the humane treatment in obtaining production animal ingredients, such as “pasture raised,” “wild caught” and “cage-free.” Not surprisingly, we are already seeing claims directed to these types of marketing statements.
A consumer class action matter filed in late 2021 involved claims that certain products were “guaranteed” to be free of detectable levels of chicken and soy, claims which the complaining buyer argued did not pass scientific muster.
And to be sure, the “natural” cases are not yesterday’s news. One recent high-profile example involved a large pet food company which faced suit of false and misleading marketing based on claims that its products were “Biologically Appropriate” for dogs, contained “Fresh Regional Ingredients” and were “Grown Close to Home,” all of which were alleged to connote some aspect of being “all natural” (even without explicit use of the claim). To the industry’s delight, a judge deemed the statements in question amounted to non-actionable puffery — or an exaggeration or overstatement expressed in broad, vague and commendatory language — and resolved in favor of the pet food company. An important lesson from this case is context matters.
As “green marketing” has grown in the human food market, we are seeing claims of “greenwashing” and “humane-washing” creep into the pet food world. As readers are well aware, there has been a marked uptick in social concern surrounding sustainability and responsible environmental stewardship. Businesses can find themselves in hot water when claims about products being “green,” “sustainable” or “humanely-produced” do not match with reality.
How to prevent your own missteps
To guard against false advertising claims now and in the future, planning and self-evaluation is key. I recommend that companies, before going to market with labeling claims, first ask themselves what they hope to gain by making their marketing statements. If the answer is simply, “This is what consumers want!” and “I want to capitalize on it,” closer scrutiny of marketing statements is in order. Companies should understand that the plaintiff’s theme at trial will be some flavor of “the greedy company is willing to say whatever it takes to make a buck.” And frankly, substantiation, and most often scientific substantiation, to support the marketing statements is the key to a successful defense.
As mentioned previously, companies are allowed to puff up their product, but no company should want to have the line between puffery and false advertising determined in an expensive lawsuit. Be mindful of both the statements and images that you place on your products, and consider what messages a reasonable consumer might take away from your product’s packaging. This is not to say that statements advertising your sustainable practices or high-quality ingredients are off limits, but it is well worth your time and money to make sure that your ducks are in a row before those statements make their way onto your labels or into your marketing.
Briefly: Top 5 takeaways
- The most significant plague impacting human food products over the past decade is undoubtedly claims of false, deceptive and misleading adverting and labeling claims, and pet food is following suit.
- Consumer class actions most often arise under state consumer protection laws, which prohibit the use of statements and imagery that could mislead or deceive reasonable consumers.
- Claims almost universally assert that the statement in question is made with the intention of grabbing the consumer’s attention and drawing them into a purchasing decision, often associated with assertions that the consumer overpaid for the product as a result of the claim.
- The highest-ranking consumer attention-grabbers are statements relating to ingredient make-up and to the source of the product.
- To guard against false advertising claims now and in the future, planning and self-evaluation is key.