Simpson v. Champion Petfoods USA, Inc., CIVIL ACTION No. 2:18-CV-74 (WOB-CJS)

Decision Date21 June 2019
Docket NumberCIVIL ACTION No. 2:18-CV-74 (WOB-CJS)
Parties Tracy SIMPSON et al., Plaintiffs v. CHAMPION PETFOODS USA, INC. et al., Defendants
CourtU.S. District Court — Eastern District of Kentucky

Adam S. Brown, Phyllis E. Brown, Brown Law Firm LLC, Joseph J. Braun, Pro Hac Vice, Robert R. Sparks, Richard S. Wayne, Pro Hac Vice, Strauss & Troy Co., LPA, Cincinnati, OH, Ben Barnow, Pro Hac Vice, Barnow and Associates, P.C., Chicago, IL, for Plaintiffs.

David A. Coulson, Pro Hac Vice, Greenberg Traurig, P.A., Miami, FL, John W. Hays, Jackson Kelly PLLC, Lexington, KY, for Defendants.


William O. Bertelsman, United States District Judge

This proposed class action involves alleged misrepresentations on the package labeling for dog food. Plaintiffs allege in particular that Defendant Champion Petfoods, Inc. misrepresented the quality of its premium dry dog food by labeling it as containing "fresh, raw, or dehydrated ingredients" that are "regional" and "deemed fit for human consumption prior to inclusion."

Plaintiffs assert the following six (6) counts:

Count I: Violation of the Kentucky Consumer Protection Act, KRS § 367.120 et seq.
Count II: Violation of the Virginia Consumer Protection Act of 1977, Va. Code § 59.1-196 et seq.
Count III: Breach of express warranty under Kentucky law, KRS § 355.2-313
Count IV: Breach of express warranty under Virginia law, Va. Code § 8.2-313
Count V: Breach of implied warranty
Count VI: Fraudulent omission
Count VII: Unjust enrichment

On January 8, 2019, this Court heard oral argument on Defendants' first motion to dismiss. At the end of the hearing, Plaintiffs' counsel made an oral request to amend the complaint. (Doc. 26). That request was granted. This matter is now before the Court on Defendants' motion to dismiss the amended complaint (Doc. 32). The Court dispenses with oral argument at this stage because the materials before it adequately present the facts and legal contentions, and argument would not aid the decisional process. Accordingly, the matter is ripe for disposition.

For the reasons that follow, Defendants' motion to dismiss will be granted in part and denied in part.


Defendant Champion Petfoods LP owns and controls Defendant Champion Petfoods USA, Inc. (collectively "Champion"). Champion manufactures, markets, and sells premium-priced dog food throughout the United States, including in Kentucky and Virginia, where, respectively, Plaintiff Tracy Simpson and Danika Lolles purchased Champion's dog food from various third-party pet food stores. (Doc. 29, ¶¶ 6–11).

Champion's dry dog food products are sold under two brand names: "Orijen" and "Acana," both of which contain substantially similar representations on the package label. Id. at ¶¶ 1, 11, 15.

A. Representations on the Package Label

Orijen Original is labeled on the front of the package as "BIOLOGICALLY APPROPRIATE™ DOG FOOD," a purported trademark phrase. (Doc. 32-2 at 1); (Doc. 29, ¶ 13).1

On the back of the package, featured prominently under the caption "TRUSTED EVERYWHERE," it reads:

ORIJEN IS THE FULLEST EXPRESSION OF OUR BIOLOGICALLY APPROPRIATE™ AND FRESH REGIONAL INGREDIENTS COMMITMENT. ORIJEN ORIGINAL features unmatched inclusions of free-run poultry, wild-caught fish and whole nest-laid eggs—sustainably farmed or fished in our region and delivered daily, FRESH or RAW and preservative-free, so they're bursting with goodness and taste.

(Doc. 32-2 at 2) (emphasis in original); (Doc. 29, ¶ 13). The package label also represents that Orijen contains "NO RENDERED POULTRY, FISH OR MEAT MEALS," and instead, "features richly nourishing ratios of poultry, organs and cartilage" and "FRESH, RAW or DEHYDRATED ingredients, from minimally processed poultry fish and eggs that are deemed fit for human consumption prior to inclusion in our foods ." (Doc. 32-2 at 1–2) (emphasis added); (Doc. 29, ¶ 13). Although these statements speak in general terms, consumers are invited to "[r]ead [the] ingredients" in the list conspicuously printed on the package.2

The package further represents the origin of the product ingredients. Under the heading "FRESH REGIONAL INGREDIENTS" it states: "GROWN CLOSE TO HOME – We focus on local ingredients that are ethically raised by people we know and trust, and delivered to our kitchens fresh or raw each day." (Doc. 32-2 at 2); (Doc. 29, ¶ 13). This theme is reinforced by two similar statements: (a) "INGREDIENTS WE LOVE FROM PEOPLE WE KNOW AND TRUST"; and (b) "FRESH OR RAW INGREDIENTS FROM LOCAL FARMS AND WATERS." (Doc. 32-2 at 2); (Doc. 29, ¶ 13). In the same vein, under the heading "NEVER OUTSOURCED," the label notes that the product is "PREPARED EXCLUSIVELY IN OUR DOGSTAR KITCHENS – We don't make foods for other companies and we don't allow our foods to be made by anyone else." (Doc. 32-2 at 2); (Doc. 29 at 7). And more particularly, "MADE IN OUR USA KENTUCKY KITCHENS" is printed on the package. (Doc. 32-2 at 1–2); (Doc. 29, ¶ 13).

B. Allegations as to the Falsity of Champion's Representations

Plaintiffs allege that Champion's representations are false and deceptive. First, Plaintiffs claim Champion's products contain "high levels of heavy metals." (Doc. 29, ¶ 25). As factual backing for this assertion, Plaintiffs reference Champion's own public disclosure, the "White Paper," and include a table from that publication listing the average concentration of arsenic, lead, cadmium, and mercury in the finished product of Acana and Orijen Original.

(Doc. 29, ¶ 25); (Doc. 32-1 at 2).3 Plaintiffs' version of the table omits the column that purports to provide the maximum tolerable limits ("MTLs") set by the Food and Drug Administration ("FDA") and the National Research Council ("NRC")—which indicates that the heavy metals in Champion's products are substantially below the MTLs.

Notwithstanding, Plaintiffs aver that the reported concentrations of these metals "are excessive," "not suitable for consumption by humans and are not of the quality represented to consumers," and therefore "render Champion's representations ... false and misleading." (Doc. 29, ¶¶ 26, 30). In support, Plaintiffs cite to the FDA's "Total Diet Study"4 and include a table with figures from the study indicating the concentration of the heavy metals found in chicken, turkey, and eggs consumed by humans. Id. at ¶ 28.5 The table, however, omits fish, which according to the package label, constitutes 2.5 pounds of the 11 pounds of "fresh, raw, or dehydrated animal ingredients" in a 13-pound bag of Orijen Original. Id. ; (Doc. 32-2 at 2).

Second, Plaintiffs allege that Champion's products: (1) are "made primarily from animal byproducts"; (2) "contain ingredients of an inferior quality than those represented" and that Champion "knowingly uses expired ingredients"; (3) include ingredients that are "heavily processed"; (4) contain "meal ingredients and fats" obtained from "unsanitary pet food rendering facilities around the world" or rendering facilities that also process "animals that died by means other than slaughter and diseased or spoiled meats"; (5) contain "a variety of ingredients that are frozen"; (6) "routinely" include " ‘regrinds’ (i.e. , items that were not fit to be sold after their original preparation)"; (7) are "contaminated with excessive quantities of hair (for one ingredient, Champion's own specification allows for 30 grams per pound to consist of hair), insects, plastic ear tags from livestock, feathers, and bones"; (8) lack "nutritious muscle meats" and instead "include cartilage, bone, [and] filtering organs";6 and (9) incorporate ingredients that arrive with bills of lading designating it as "INEDIBLE" and "NOT FOR HUMAN CONSUMPTION." (Doc. 29, ¶¶ 2, 16–17, 21–24).

Lastly, Plaintiffs allege Champion misrepresented that it uses "regional" ingredients from "PEOPLE WE TRUST." Id. at ¶¶ 2, 18–19. Plaintiffs aver this is false because: (1) Champion "imports most of its ingredients from outside the Commonwealth of Kentucky," a "substantial portion" of which "are imported from outside the United States and from as far away as New Zealand, Morocco, Denmark, and Peru," and "the few ingredients Champion sources from Kentucky are first shipped over 1,000 miles away to New Bedford, Massachusetts for further processing before being shipped to Champion's Kentucky facility"; and (2) Champion obtains the ingredients it uses "through a complex, convoluted supply chain where Champion may be unaware of the origin of the ingredient." Id. at ¶¶ 2, 18–19.

In short, Plaintiffs allege that contrary to the package labeling, the "ingredients" prior to inclusion in Champion's products "are not suitable for consumption by humans and are not of the quality represented to consumers." Id. at ¶¶ 21, 30. According to Plaintiffs, their injury stems from the fact that they believed Champion's products were "healthy, quality product[s] for [their] pet[s]," and they paid a premium price they would not have paid had they been aware of the alleged facts pertaining to Champion's products. Id. at ¶¶ 3, 6–7. They seek compensation for their loss and classwide treatment for the thousands of estimated class members in Kentucky and Virginia. Id. at ¶¶ 31, 33.


The Federal Rules of Civil Procedure require that pleadings, including complaints, contain a "short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). To satisfy this requirement, a complaint must contain enough facts "to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007).

A complaint may be deficient for failure "to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). Even though a "complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the grounds of his...

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