Champion Petfoods BPA Class Action Lawsuit Dismissed

A federal judge in Wisconsin has thrown out a class action lawsuit against Champion Petfoods stemming from claims that the pet food company misled consumers about the amount of bisphenol A (BPA) in its dog food.

Plaintiff Scott Weaver claimed in his Champion Petfoods class action lawsuit that the company’s Orijen and Acana brand dog foods are misleading to consumers for various reasons.

First, he claims, while the defendant says its ingredients are never outsourced, many of the ingredients could be considered outsourced to some degree. Weaver says some of the ingredients came from local sources while others came from across the globe.

The defendants countered this argument by stating that this is generally predicated on the inability of local sources to meet their supply needs.  

Second, Weaver complained in his Champion Petfoods class action lawsuit that the packaging uses pictures of bucolic countryside and family-owned farms to display the defendant’s suppliers and to communicate to consumers the wholesomeness of the product’s ingredients. Weaver says this is not true because the defendant’s primary suppliers are multinational companies like Tyson.

The judge wrote, however, that some of the misleading statements identified in the plaintiff’s pleading came from packaging that he did not, in fact, purchase.

Weaver also asserts that BPA should not be in the product because the defendant states its dog food is “biologically appropriate,” which would indicate that there would be no BPA in the product.

According to the judge’s opinion, the defendant’s claim that it does not intentionally add BPA to its products does not necessarily mean its products are BPA-free. The judge states that, according to laboratory testing, many brands of dog food contain BPA, but the levels found in the defendant’s products would not cause harm to a dog consuming the products.

The judge’s opinion goes on to state that the defendant also uses beef tallow in its products, which is rendered from animal carcasses.

In May 2018, the defendant learned some of its beef had tested positive for pentobarbital, a chemical used to euthanize animals.

According to the judge, the defendants maintain that very little or even no pentobarbital was detectable in the finished products and that the low levels would not be dangerous to dogs.

The judge states, however, that it is undisputed that Weaver had stopped purchasing the defendant’s dog food by the time the defendants learned about the presence of pentobarbital in their meat shipments.

Weaver claimed Champion Petfoods had a duty to disclose information related to the risk of the dog food containing BPA and pentobarbital. 

Champion Petfoods argues that the phrase “Biologically Appropriate” is a nutritional philosophy, not a statement of fact. Therefore, Champion Petfoods says it should be likened to nonactionable commercial puffery.

The plaintiff says the philosophy boils down to a representation that the products are fresh and natural, containing only ingredients that a dog would eat in the wild. Weaver says this representation is capable of being factually proven or disproven. 

In addition, Champion Petfoods alleges that the presence, or risk of presence of BPA in the finished product does not render the phrase misleading. The judge agreed, stating that Champion Petfoods did not intentionally add heavy metals to its products.

“If the mere presence of heavy metals in pet foods made a manufacturer’s statements of quality misleading, then the WDTPA would effectively bar the sale of any pet foods packaged or marketed in a manner that touts their quality,” the judge says in his opinion.

The judge goes on to state that though BPA is not a natural substance, it has invaded the environment and is present in many dog foods. He says Champion Petfoods did not intend for BPA to end up in their products, but nevertheless, it appears.

The judge states that holding the defendant liable for the risk that their products contain unintended and non-harmful concentrations of these substances would be extraordinary.

“Defendants and all other manufacturers would need to immediately pull their products off of Wisconsin store shelves, lest they face a tide of litigation from consumers who did not care, until now, that the products had such contaminants,” the judge says in his opinion.

In addition, the judge opines that the only way Weaver would be satisfied would be to require pet food manufacturers to include a disclosure of unintended ingredients on product packaging.

A similar class action lawsuit against Champion Petfoods in Illinois survived dismissal last year.

That complaint also alleged that Champion Petfoods’ dog food contained excess amounts of heavy metals and toxins and that the company failed to notify consumers.

Did you purchase any Champion Petfoods thinking they were “biologically appropriate”? Leave a message in the comments section below.

The plaintiff is represented by Kenneth Wexler and Michelle Perkovic of Wexler Wallace LLP, Kevin Seely of Robbins LLP, Mark Peterson of Peterson Law & Mediation LLC, Raina Borrelli of Gustafson Gluek PLLC, Robert Shelquist of Lockridge Grindal Nauen PLLP, Steven McKany of Robbins LLP, Susana Cruz Hodge of Lite Depalma Greenberg LLC and Charles Nauen of Lockridge Grindal Nauen PLLP.

The Champion Petfoods Class Action Lawsuit is Weaver v. Champion Petfoods USA Inc., et al., Case No. 2:18-cv-01996, in the U.S. District Court for the Eastern District of Wisconsin.

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