Blue Buffalo Co., Ltd. v. Nestle Purina PetCare Company

Filing 193

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that Plaintiff/Counterclaim Defendant Blue Buffalos Amended Motion to Dismiss 129 is GRANTED in part and DENIED in part in accordance with the terms of this Memorandum and Order. IT IS FURTHER ORDERED that Defendant/Counterclaim Plaintiff Purina shall file an amended counterclaim in accordance with the terms of this Memorandum and Order no later than July 11, 2016. Signed by District Judge Rodney W. Sippel on 6/13/16. (CAR)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
THE BLUE BUFFALO COMPANY LTD.,
Plaintiff/Counterclaim Defendant,
vs.
NESTLÉ PURINA PETCARE COMPANY,
Defendant/Counterclaim Plaintiff.

)
)
)
)
)
)
)
)
)

Case No. 4:15 CV 384 RWS

MEMORANDUM AND ORDER
This false advertising suit is before me on Plaintiff/Counterclaim Defendant Blue Buffalo
Company Ltd. (“Blue Buffalo”)’s Amended Motion to Dismiss Defendant/Counterclaim Plaintiff
Nestlé Purina Petcare Company (“Purina”)’s Amended Counterclaim for failure to state a claim
pursuant to Federal Rule of Civil Procedure 12(b)(6). Purina opposes the motion and the issues
are fully briefed. Most of Purina’s claims border on frivolous and will be dismissed as a matter
of law. Because some of Purina’s claims require the evaluation of extrinsic evidence, however,
they will survive at this stage of the case, and I will grant in part and deny in part Blue Buffalo’s
motion to dismiss.
Background
Familiarity with this case and its background is presumed, but a brief review of the case
as it relates to the motion before me would be useful. Blue Buffalo brought this suit alleging that
Purina’s advertising for several of its pet food products violates section 43 of 15 U.S.C. §
1125(a) (“the Lanham Act”) and other state law provisions. Blue Buffalo alleged that Purina
falsely advertised ten of its pet food brands by, among other things, misleading consumers into

thinking certain ingredients were primary ingredients when they were not and suggesting that
certain ingredients were premium ingredients when they were of inferior quality.
Purina has filed an amended answer and counterclaims against Blue Buffalo, alleging that
Blue Buffalo’s advertising for several of its pet food products violates section 43 of 15 U.S.C. §
1125(a) (“the Lanham Act”), the Connecticut Unfair Trade Practices Act (“CUTPA”), and
constitutes unfair competition under Missouri common law. See Amended Counterclaim [#128].
Notably, Purina “brings this counterclaim in the alternative,” stating that:
Purina maintains that Blue Buffalo’s Complaint in this action does not contain
any viable claims and that Purina has valid defenses to all of Blue Buffalo’s
claims. However, in the event a trier of fact were to find that that Blue Buffalo’s
Complaint may contain any viable claims, then Blue Buffalo too should be held
accountable for engaging in essentially the same, and indeed significantly more
pervasive, practices that it alleges against Purina.
Id. at ¶ 9.1 As promised, Purina advances many of the same type of arguments articulated
by Blue Buffalo it the Amended Counterclaim, including that Blue Buffalo’s advertising
misleads consumers into believing certain premium ingredients are primary ingredients
when in fact they are not.
Choice of Law
This case was transferred pursuant to 28 U.S.C. § 1404(a) from the District of
Connecticut, where it was properly filed. As a result, the laws of Connecticut and the United
States Court of Appeals for the Second Circuit govern this action. See Eggleton v. Plasser &
Theurer Exp. Von Bahnbaumaschinen Gesellschaft, MBH, 495 F.3d 582, 585-86 (8th Cir. 2007)
(“[I]f a district court in one state transfers an otherwise properly filed case to a district court in
another state solely ‘[f]or the convenience of parties and witnesses,’ 28 U.S.C. § 1404(a), the
1

Federal Rule of Civil Procedure 8(d)(2) allows parties to plead “2 or more statements of a claim or defense
alternatively,” but I am not aware of any court interpreting Rule 8 to allow an entire counterclaim to be brought in
the alternative. While I will not dismiss the counterclaim outright on this basis, I do find Purina’s apparent disbelief
of its own theories to be telling.
2

transferee court applies the choice-of-law rules of the state in which the transferor court sits.”).
See also Ruling Re: Motion to Transfer Venue [#48], Cause No. 3:14-cv-1665.
Legal Standard
In ruling on a motion to dismiss, I must accept as true all factual allegations in the
complaint and view them in the light most favorable to the plaintiff. Fed. R. Civ. P. (12)(b)(6);
Ashcroft v. Iqbal, 556 U.S. 662, 678-679 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007)). “To survive a motion to dismiss, a complaint must contain sufficient factual
matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Id. at 678. “A
claim has facial plausibility when the plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. “The
plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer
possibility that a defendant has acted unlawfully.” Id. While factual matter must be accepted as
true, courts will not presume conclusory statements to be true. Id. at 679. Unlike state courts,
however, which often require detailed statements of fact in a petition, the federal rules require
only notice pleading. Fed. R. Civ. P. 8(a); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 575 (2007).
Discussion
A. False Advertising and the Reasonable Consumer Standard
In the Second Circuit, a plaintiff must prove the following elements to succeed in a claim
for false advertising under section 43(a) of the Lanham Act:2 (1) a false statement of fact by the
defendant in a commercial advertisement about its own or another’s product; (2) the statement
actually deceived or has the tendency to deceive a substantial segment of its audience; (3) the
deception is material, in that it is likely to influence the purchasing decision; (4) the defendant
2

The elements of Purina’s related claims for false advertising under Connecticut and Missouri law are the same or
substantially similar to those for a claim under the Lanham Act. As a result, my analysis of the Lanham Act claim
will apply equally to Purina’s state law claims.
3

caused its false statement to enter interstate commerce; and (5) the plaintiff has been or is likely
to be injured as a result of the false statement, either by direct diversion of sales from itself to the
defendant or by a lessening of the goodwill associated with its products. S.C. Johnson & Son,
Inc. v. Clorox Co., 241 F.3d 232, 238 (2d Cir. 2001).
As stated in my Memorandum and Order of June 10, 2015, see [#88], false advertising
claims are governed by the “reasonable consumer standard.” See also Time Warner Cable, Inc.
v. DIRECTV, Inc., 497 F.3d 144, 159 (2d Cir. 2007). The Second Circuit has articulated the
standard as follows: “If . . . no reasonable buyer would take [the representation] at face value,
there is no danger of consumer deception and hence, no basis for a false advertising claim under
the Lanham Act.” Id.
There are two different theories of recovery in a Lanham Act action for false advertising.
“First, the plaintiff can demonstrate that the challenged advertisement is literally false.” Time
Warner Cable, Inc., 497 F.3d at 153 (quoting Coca–Cola Co. v. Tropicana Prods., Inc., 690 F.2d
312, 317 (2d Cir. 1982)). “Alternatively, a plaintiff can show that the advertisement, while not
literally false, is nevertheless likely to mislead or confuse consumers.” Id.
When plaintiffs bring an implied falsity claim, as Purina does here, they are “‘claiming
that a statement, whatever its literal truth, has left an impression on the listener [or viewer] that
conflicts with reality’—a claim that ‘invites a comparison of the impression, rather than the
statement, with the truth.’” Time Warner Cable, Inc., 497 F.3d at 153 (quoting Schering Corp. v.
Pfizer Inc., 189 F.3d 218, 229 (2d Cir. 1999)). “Therefore, . . . ‘a district court must rely on
extrinsic evidence [of consumer deception or confusion] to support a finding of an implicitly
false message.’” Id. (emphasis in original) (alterations in original). As a result, whether an
advertisement is deceptive “is generally a question of fact which requires consideration and

4

weighing of evidence from both sides and therefore usually cannot be resolved through a motion
to dismiss.” Ackerman v. Coca-Cola Co., No. CV-09-0395 (JG), 2010 WL 2925955, at *17
(E.D.N.Y. July 21, 2010) (quoting Williams v. Gerber Products Co., 552 F.3d 934, 938–39 (9th
Cir. 2008)).
However, that is not to say that resolution of a false advertising case on a motion to
dismiss is always inappropriate. Courts will dismiss false advertising and similar claims when,
construing the factual allegations in the light most favorable to the plaintiff, the challenged
advertising statements would not plausibly deceive a reasonable consumer. See, e.g., Werbel v.
Pepsico, Inc., No. C 09-04456 SBA, 2010 WL 2673860, at *3 (N.D. Cal. July 2, 2010); Red v.
Kraft Foods, Inc., No. CV 10-1028-GW AGRX, 2012 WL 5504011, at *3 (C.D. Cal. Oct. 25,
2012) (compiling cases dismissing false advertising claims as a matter of law). While “granting
a motion to dismiss a UCL claim is a ‘rare situation’ . . . dismissal would be proper if the
advertisement itself made it impossible for the plaintiff to prove that a reasonable consumer was
likely to be deceived.” Id. at *2 (quoting Williams, 552 F.3d at 939). Dismissal as a matter of
law is proper “especially where . . . the claim alleges that a consumer will read a true statement
on a package and will then disregard ‘well-known facts of life’ and assume things about the
products other than what the statement actually says.”). Id. at *3.
B. Analysis
1. Super 7 Lifesource Bits
Purina alleges that Blue Buffalo falsely advertises its dog and cat food products
containing “Super 7 Lifesource Bits” through its product statements, which Purina alleges
suggest that they are superior in nutrition to other pet foods and that the products contain a
significant amount of the ingredients found in the Lifesource Bits. Purina cites to Blue Buffalo’s

5

Life Protection Formula with Lifesource Bits, Lamb and Brown Rice Recipe, as an example of a
product containing Lifesource Bits.
A Super 7 Lifesource Bits graphic appears on the packaging for the Life Protection
Formula with Lifesource Bits Lamb and Brown Rice Recipe. Purina alleges that this graphic,
which is colorful and depicts certain fruits and vegetables, misleads consumers into thinking the
product contains significant amounts of fruits and vegetables, when in fact these ingredients
likely only make up .25% of the product overall. Purina also alleges that the statement on the
packaging that the product contains “healthy fruits & veggies” is misleading, as is Blue Buffalo’s
use of the term “antioxidant-rich,” and that Blue Buffalo’s website contains statements that
reinforce the misleading message that the seven ingredients in the Lifesource Bits are primary
ingredients.
I have reviewed the challenged advertisements, packaging, and website statements as a
whole,3 and I conclude that, when the challenged statements are taken together, Purina has stated
a sufficiently plausible claim for false advertising in relation to Blue Buffalo’s Super 7
Lifesource Bits, including its allegations about the Life Protection Formula with Lifesource Bits
products. While Purina’s allegations here may be weak, they are not so incredible that I can say
as a matter of law that they should be dismissed, particularly in light of the Second Circuit’s
warning that a “district court must look to consumer data to determine what ‘the person to whom
the advertisement is addressed find[s] to be the message’” when the challenged statements could
plausibly deceive a reasonable consumer. Time Warner Cable, Inc., 497 F.3d at 158 (quoting
American Home Products Corp., 577 F.2d at 166). As a result, Purina’s claims about Blue

3

Purina includes images of the challenged statements, packaging, and advertisements in its counterclaim and in an
Appendix to the Amended Counterclaim. As a result, these images and statements are properly before me on my
consideration of the motion to dismiss.
6

Buffalo’s Super 7 Lifesource Bits and Life Protection Formula products will survive the motion
to dismiss.
2. Savory Sizzlers
Purina alleges that Blue Buffalo falsely advertises its Kitchen Cravings Savory Sizzlers
Homestyle Dog Treats as containing bacon as a main ingredient when in fact the product does
not contain any bacon. Purina alleges that Blue Buffalo communicates this false message
through its packaging and product labels.
Savory Sizzlers come in two versions – a pork-based version and a chicken-based
version. The front of the pork-based product packaging states in prominent lettering that it
features “USA PORK FIRST INGREDIENT.” Likewise, the chicken-based version states “USA
CHICKEN FIRST INGREDIENT” prominently on the front of the package. The only mention
of bacon is on the back of the package, which states in small lettering “If there’s one thing that
will bring dogs running, it’s the smell of bacon sizzling in the pan. Tasty BLUE Sizzlers are the
naturally healthy alternative to the real thing, so you can feel good about rewarding your canine
companion with the bacon flavor he craves.” Purina argues that this language on the back of the
package, along with a clear window in the packaging allowing consumers to see the product
itself, which is in the shape of bacon strips, misleads consumers into thinking the product
contains bacon.
Reviewing the packaging and product as a whole, I conclude that Purina has failed to
state a plausible claim for false advertising regarding the Savory Sizzlers. Even when I draw all
reasonable inferences in the light most favorable to Purina, I find that no reasonable consumer
could believe that Savory Sizzlers contain bacon as a main ingredient. The packaging clearly
states that pork or chicken, depending on the variety, is the “FIRST INGREDIENT,” and the

7

only mention of bacon is in the context of a statement about how Savory Sizzlers are not bacon,
but rather, are an alternative to bacon. While dismissing a false advertising claim as a matter of
law is a rare event, dismissal is proper where, as here, “the claim alleges that a consumer will
read a true statement on a package and will then disregard ‘well-known facts of life’ and assume
things about the products other than what the statement actually says.” Red v. Kraft Foods, Inc.,
No. CV 10-1028-GW AGRX, 2012 WL 5504011, at *3 (C.D. Cal. Oct. 25, 2012).
3. Health Bars
Purina alleges that Blue Buffalo falsely advertises its BLUE Health Bars, a biscuit-type
dog treat, as containing certain primary ingredients when in fact those ingredients are not
primary ingredients. Purina challenges two Health Bars flavors – Health Bars Baked with
Banana and Yogurt and Health Bars Baked with Bacon, Egg & Cheese.
Purina’s alleges that the name of the Banana and Yogurt Bars, the phrase “Baked with
Banana and Yogurt,” and the yellow and cream-colored packaging imply that bananas and
yogurt are primary ingredients of those products, when in fact the first three ingredients are
oatmeal, barley, and oat flour. Banana is ingredient number four and yogurt is ingredient
number five. As a result, Purina alleges that banana and yogurt and therefore not primary
ingredients.
Purina alleges that name of the Bacon, Egg & Cheese flavor Health Bars, the phrase
“Baked with Bacon, Egg & Cheese,” and the red packaging for that flavor conveys a message
that meat is a primary ingredient.
Purina’s allegations here are on par with those in Red v. Kraft Foods, Inc., which
dismissed the plaintiff’s claim that the packaging for “Vegetable Thins” and “Ritz Roasted
Vegetable Crackers” mislead consumers into thinking vegetables were a primary ingredient

8

because “the product is a box of crackers, and a reasonable consumer will be familiar with the
fact of life that a cracker is not composed of primarily fresh vegetables.” Red, 2012 WL
5504011, at *10-12.
The same is true here. Health Bars are dog biscuits. The Health Bars packaging features
a large photograph of a Health Bars biscuit. Like crackers, reasonable consumers know as a fact
of life that biscuits are not composed primarily of fruit and yogurt, but rather, like all baked
goods, are primarily composed of grains and flours. The same holds true for Purina’s challenges
to the Bacon, Egg & Cheese flavor – no reasonable consumer would believe that bacon, egg, or
cheese are the primary ingredients in a dog biscuit. Nor do Purina’s allegations that the
packaging color schemes reinforce the allegedly misleading primary ingredient message make its
claim sufficiently plausible. While color schemes are often used to connote flavor, they do not
necessarily imply ingredient primacy. See, e.g., Boris v. Wal-Mart Stores, Inc., 35 F. Supp. 3d
1163, 1168-70 (C.D. Cal. 2014).
Finally, Purina also alleges that the Bacon, Egg & Cheese packaging gives consumers the
impression that the product contains “real” pieces of bacon, egg, and cheese, when in fact there
is no egg or cheese in the product at all. In the same breath, however, Purina pleads that the
seventh and eighth ingredients are “dried egg” and cheese powder,” and that bacon is the fifth
ingredient. See Amended Counterclaim [#128] at ¶¶ 26-27. While I must take the factual
allegations in a complaint to be true, I cannot do that when a plaintiff’s own complaint defeats
itself. Giving Purina as much credit as I possibly can, I will assume Purina had a theory that
dried or powdered-forms of egg and cheese are not “real” when it pleaded this theory, and not
that it was flouting the requirements of Fed. R. Civ. P. 11. But Purina does not explain how a
dry or powder-form of an ingredient makes it any less real, nor is there any plausible basis for

9

concluding so. Courts routinely dismiss similar claims, and I will do the same here. See, e.g.,
Manchouck v. Mondelez Int’l, Inc., No. 13-cv-02148, 2013 U.S. Dist. LEXIS 138877, at *6-10
(N.D. Cal. Sept. 26, 2013).
As a result, I find that Purina has failed to state a claim for false advertising in regards to
Blue Buffalo’s Health Bars, and I will dismiss these claims from the Amended Counterclaim.
4. Family Favorite Recipes
Purina alleges that Blue Buffalo falsely advertises its line of canned wet dog food called
Family Favorite Recipes. Purina challenges the packaging and advertising for the following
flavors: Mom’s Chicken Pie, Shepherd’s Pie, Backyard BBQ, Turkey Day Feast, and Turducken.
Purina’s main complaint is that the photographic images on the product labels, which depict the
traditional title dish, mislead consumers into thinking that the can contains human-grade meals
comprised of identical ingredients and ratios of ingredients as those in the traditional dish.
Purina alleges that these images, taken together with the “family favorite recipes” tagline on each
can, constitute false advertising.
In addition to these more generally-applicable allegations, Purina alleges that the
packaging and advertising for the Mom’s Chicken Pie flavor is misleading because it does not
contain any pie crust or wheat; the packaging and advertising for the Shepherd’s Pie flavor is
misleading because it does not contain equal parts of meat mixture and potatoes, with mashed
potatoes only comprising the ninth ingredient; and that the packaging and advertising for the
Backyard BBQ, Sunday Chicken Dinner, Turkey Day Feast, and Turducken flavors are
misleading because they are not comprised of high-quality, whole ingredients, nor are some of
the ingredients depicted primary ingredients.

10

Purina’s allegations here defy credulity. No reasonable consumer would expect these
cans of dog food to contain whole turkeys, turduckens, or pies. Nor would any reasonable
consumer believe that the Family Favorite Recipes’ references to traditional American meals
mean that the same, human grade ingredients are in the cans of dog food. To believe so would
require the consumer to “disregard well-known facts of life.” Red, 2012 WL 5504011, at *3.
As a result, much like my previous ruling finding that Blue Buffalo failed to state a
plausible claim that a reasonable consumer would believe that Fancy Feast Filet Mignon Flavor
with Real Seafood and Shrimp contains the expensive ingredient filet mignon just because it is
labeled as “filet mignon flavor,” see Memorandum and Order of June10, 2015, I find that Purina
has failed to state a plausible claim that a reasonable consumer would believe that the Family
Favorite Recipes contain human-grade meals featuring identical ingredients and ratios of
ingredients to those in the referenced traditional dish. I also find that Purina’s allegations
specific to the different flavors fail state a plausible claim for false advertising. It is undisputed
that each of the products contain the ingredients depicted on the package labels. In addition,
many of the claims Purina makes about the specific flavors are merely conclusory allegations
(such as its claims that the in-store representatives tell consumers the ingredients are human
grade). See Ashcroft v. Iqbal, 556 U.S. at 679. As a result, I will dismiss Purina’s claims
regarding Blue Buffalo’s Family Favorite Recipes products.
5. Wild Bones
Purina alleges that Blue Buffalo falsely advertises its Wild Bones Dental Chews, a dog
bone product from Blue Buffalo’s “Wilderness” line, because the packaging misleads consumers
into thinking the product contains actual bone. Purina alleges that membership in the Wilderness
product line implies “a link to nature and containing ingredients one would find in the wild,” and

11

because other products in the Wilderness line contain real elk antlers and beef bones, Purina
alleges that this “further affirm[s] the impression that the product line consists of whole animal
bones.” Additionally, Purina alleges that the bones are in the shape and color of “true bones,”
which is visible through a clear window in the packaging, enforcing the allegedly misleading
message that the Wild Bones product contains real animal bones.
Purina’s allegations here also stretch the bounds of credulity. The “true bone[]” shape
that Purina alleges causes consumers to believe the product contains real animal bone is not, in
fact, the shape of a real bone. Instead, it is in the shape of a cartoon bone, sized just like a dog
biscuit, and is embossed with the word “WILDNERNESS.” The Wild Bones do not even
remotely resemble real bones. Nor does belonging to the vague “Wilderness” product line
plausibly imply that the Wild Bones contain real bone matter just because of the vague reference
to the wild. Purina’s allegations are far from sufficient to state a claim for false advertising or to
plausibly imply that a reasonable consumer would believe that the Wild Bones contain real
bones. As a result, I will dismiss Purina’s claims regarding the Wild Bones Dental Chews.
6. Healthy Gourmet Flaked Fish & Shrimp Entrée
Purina alleges that Blue Buffalo falsely advertises its Healthy Gourmet Flaked Fish &
Shrimp Entrée in Gravy canned cat food because the product name misleads consumers into
believing that the product is “comprised primarily of wholesome seafood and shrimp.” Purina
then pastes the ingredient list into its complaint to show that shrimp is only the eighth ingredient,
which Purina alleges means it is not a primary ingredient. Purina’s complaint fails to
acknowledge, however, that the ingredient list also shows that “ocean fish” is the first ingredient,
and “fish broth” is the second. As a result, its claim that the product is falsely advertised as
being “comprised primarily of wholesome seafood” is self-defeating.

12

I cannot say, however, that no reasonable consumer would believe that shrimp, which
appears in the product name, comprises more of the product than it actually does. While
Purina’s claim here is tenuous, it is not so incredible that a reasonable consumer would have to
disregard well-known facts of life to believe it. See Time Warner Cable, Inc., 497 F.3d at 153.
Accordingly, Purina’s claim that Blue Buffalo falsely advertises its Healthy Gourmet Flaked
Fish & Shrimp in Gravy cat food will survive to the extent it alleges that reasonable consumers
would believe that it contains shrimp as a primary ingredient, but any claim regarding the
presence of fish is defeated by Purina’s own pleading and is therefore barred as a matter of law
and will be dismissed.
Accordingly,
IT IS HEREBY ORDERED that Plaintiff/Counterclaim Defendant Blue Buffalo’s
Amended Motion to Dismiss #[129] is GRANTED in part and DENIED in part in accordance
with the terms of this Memorandum and Order.
IT IS FURTHER ORDERED that Defendant/Counterclaim Plaintiff Purina shall file an
amended counterclaim in accordance with the terms of this Memorandum and Order no later
than July 11, 2016.

_____________________________________
RODNEY W. SIPPEL
UNITED STATES DISTRICT JUDGE
Dated this 13th day of June, 2016.

13