Colangelo v. Champion Petfoods USA, Inc.

• Court: Court of Appeals for the Second Circuit
• Decided: June 6, 2023
• Docket: 22-962
• Status: Unpublished

Opinion

22-962-cv Colangelo v. Champion Petfoods USA, Inc.

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 6th day of June, two thousand twenty-three.

PRESENT: ROSEMARY S. POOLER, BARRINGTON D. PARKER, ALISON J. NATHAN, Circuit Judges. _____________________________________

KATHLEEN PARADOWSKI,

Plaintiff-Appellant,

RACHEL COLANGELO, individually and on behalf of a class of similarly situated individuals,

Plaintiff,

v. 22-962-cv

CHAMPION PETFOODS USA, INC. & CHAMPION PETFOODS LP,

Defendants-Appellees. _____________________________________

FOR PLAINTIFF-APPELLANT: REBECCA A. PETERSON (Robert K. Shelquist, on the brief), Lockridge Grindal Nauen P.L.L.P., Minneapolis,

1 MN, (Daniel E. Gustafson, Gustafson Glueck, PLLC, Minneapolis, MN, Kevin A. Seeley, Robbins LLP, San Diego, CA, Kenneth A. Wexler, Wexler Boley & Elgersma LLP, Chicago, IL, on the brief)

FOR DEFENDANTS-APPELLEES: LINDA T. COBERLY, Winston & Strawn LLP, Chicago, IL (David A. Coulson, Winston & Strawn LLP, Miami, FL, on the brief)

Appeal from a judgment of the United States District Court for the Northern District of

New York (Kahn, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is AFFIRMED.

Plaintiff-Appellant Kathleen Paradowski appeals from the district court’s grant of

summary judgment for Defendants-Appellees Champion Petfoods USA, Inc., and Champion

Petfoods LP (collectively, “Defendants” or “Champion”). On appeal, Paradowski argues that the

district court improperly dismissed her New York General Business Law § 349 claim alleging

that Champion failed to disclose the presence of heavy metals in two of its pet food formulas.

We assume the parties’ familiarity with the underlying facts and the procedural history of the

case, which we discuss only as necessary to explain our decision to affirm.

BACKGROUND

Champion is a manufacturer and seller of premium-priced dog food. It markets its

products as “Biologically Appropriate” and states that it uses “animal-based proteins,” instead of

grains or fillers, in an effort “to mirror how wolves or wild dogs would get nutrition in nature

2 (albeit within the limitations of dry kibble form).” App’x 258. In April 2017, a group called the

Clean Label Project published a blog post that rated pet foods based on several factors, including

heavy metal content, and gave one star out of five to Champion’s brands. Several Champion

customers reached out to inquire about the post, and in May 2017, Champion released a white

paper on heavy metals that disclosed the average levels of heavy metals in its products in

comparison to known safety limits for pets. The white paper reported that the levels of heavy

metals in its products were all within the acceptable ranges based on guidelines published by the

National Research Council and the Food and Drug Administration (“FDA”) outlining maximum

tolerable limits for arsenic, cadmium, lead, and mercury in dog foods.

Approximately one and a half years later, this putative class action was brought against

Champion on behalf of New York purchasers of Champion dog food. Paradowski is the owner

of two German Shepherds, and the sole remaining named plaintiff. At various times from 2016–

18, she purchased two of Champion’s products—ACANA Regional Meadowlands and ACANA

Heritage Free-Run Poultry. Her second amended complaint alleged, inter alia, that Champion

engaged in common-law fraud-by-omission and/or violated New York General Business Law §

349 by failing to disclose that its recipes “contained and/or had a material risk of containing”

detectible amounts of heavy metals. App’x 60. Although the parties dispute the quantity of

heavy metals present, they agree that the question of whether the products were safe is not at

issue in this litigation. Plaintiff did not allege that Champion’s pet foods were unsafe or that they

harmed her pets. Instead, she maintained that she would not have purchased Champion’s

products at their retail prices if she had known that they contained heavy metals.

In response, Champion argued that heavy metals are widely known to be naturally

occurring in the environment and at safe levels in many of the foods people (and dogs) eat.

3 Champion notes that heavy metals are especially common in the fish and fish-derived products

that are listed as ingredients in its ACANA Heritage Free-Run Poultry and ACANA Regionals

Meadowland offerings. Champion also provided uncontroverted evidence that “nearly all pet

food contains measurable quantities of heavy metals.” See Colangelo v. Champion Petfoods

USA, Inc., No. 18-cv-1228, 2022 WL 991518 at *25 n.47 (N.D.N.Y. Mar. 31, 2022).

On March 31, 2022, the district court granted summary judgment in favor of Champion

and dismissed all of Plaintiff’s claims. The court concluded that no reasonable jury could rule

for the Plaintiff on either the heavy metal fraud-by-omission claim or the § 349 claim because

“by ordinary diligence and attention, Plaintiff[] should have known that anything containing fish

might also contain high concentrations of heavy metals.” Id. (quoting Simpson v. Champion

Petfoods USA, Inc., 397 F. Supp. 3d 952, 972–73 (E.D. Ky. 2019)).

Plaintiff timely appealed. She only challenges the district court’s dismissal of her § 349

heavy metals claim.

STANDARD OF REVIEW

We review orders granting summary judgment de novo, “construing the evidence in the

light most favorable to the party against which summary judgment was granted and drawing all

reasonable inferences in [her] favor.” Harris v. Miller, 818 F.3d 49, 57 (2d Cir. 2016) (internal

quotation marks omitted). Summary judgment is appropriate only if “there is no genuine dispute

as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.

56(a). A material dispute exists if a reasonable jury could return a verdict for the nonmoving

party, but not if “the evidence to support [her] case is so slight” that no rational factfinder could

find in her favor. Brown v. Eli Lilly & Co., 654 F.3d 347, 358 (2d Cir. 2011) (internal quotation

marks omitted).

4 DISCUSSION

New York law prohibits “[d]eceptive acts or practices in the conduct of any business,

trade or commerce or in the furnishing of any service.” N.Y. Gen. Bus. Law § 349. The

requisite elements for a cause of action under § 349 are well established. The plaintiff must

show that: “(1) the defendant’s conduct was consumer-oriented; (2) the defendant’s act or

practice was deceptive or misleading in a material way; and (3) the plaintiff suffered injury as a

result of the deception.” Himmelstein, McConnell, Gribben, Donoghue & Joseph, LLP v.

Matthew Bender & Co., 171 N.E.3d 1192, 1197 (N.Y. 2021). When evaluating whether an act

was deceptive or misleading, New York courts apply an objective standard, asking whether the

representation or omission is “likely to mislead a reasonable consumer acting reasonably under

the circumstances.” Stutman v. Chem. Bank, 731 N.E.2d 608, 611–12 (N.Y. 2000) (quoting

Oswego Laborers’ Loc. 214 Pension Fund v. Marine Midland Bank, N.A., 647 N.E.2d 741, 745

(N.Y. 1995)). A “reasonable consumer” includes those “who, in making purchases, do not stop

to analyze but are governed by appearances and general impressions.” Guggenheimer v.

Ginzburg, 372 N.E.2d 17, 19 (N.Y. 1977).

“In the case of omissions in particular,” the New York Court of Appeals has cautioned

that § 349 “surely does not require businesses to ascertain consumers’ individual needs and

guarantee that each consumer has all relevant information specific to its situation.” Oswego, 647

N.E.2d at 745. Accordingly, a plaintiff bringing an omission-based claim for § 349 liability must

show that “the business alone possesses material information that is relevant to the consumer and

fail[ed] to provide this information,” or that plaintiffs could not “reasonably have obtained the

relevant information they now claim the [defendant] failed to provide.” Id.

5 As a preliminary matter, contrary to Plaintiff’s argument, the district court did not

conflate the legal standard for a common-law fraud-by-omission claim with the standard

governing § 349 omissions-based claims. Although the district court’s order states that

Plaintiff’s § 349 claim “fail[s] for the same reason as her claims for fraud by omission fail,” that

does not mean that the court applied the same legal standard to both claims. Colangelo, 2022

WL 991518 at *27. To the contrary, the order analyzed the § 349 and common-law fraud claims

separately, identifying the correct legal standard for each. Compare id. at *25 (common-law

fraud) with id. at *26 (§ 349). The district court concluded that no reasonable jury could find

that the relevant omitted information was exclusively within Champion’s possession, or that a

consumer could not reasonably obtain such information. This determination would defeat both

the common-law fraud claim, which requires that the information be “peculiarly within the

defendant’s knowledge,” ACA Fin. Guar. Corp. v. Goldman, Sachs & Co., 32 N.E.3d 921, 922

(N.Y. 2015) (cleaned up), and the § 349 claim, see Oswego, 647 N.E.2d at 745.

Upon review of the record, we agree that no reasonable jury could conclude that the

omission at issue—that Champion’s pet foods contained or had a material risk of containing

heavy metals—was solely within Champion’s possession. To start, it is worth clarifying that

Plaintiff has not pleaded an omissions claim based on the specific quantities of heavy metals

present in Champion’s products. If Plaintiff had claimed that Champion’s pet foods contained

quantities of heavy metals in excess of safe thresholds, then that could be information that “the

business alone” possessed. Id. However, Plaintiff’s position is that Champion should have

disclosed that its products contained—or had a material risk of containing—any amount of heavy

metals.

6 The fact that Champion’s pet foods contained heavy metals was information reasonably

obtainable to the Plaintiff. See id. The undisputed record evidence shows that “nearly all pet

food contains measurable quantities of heavy metals” because measurable quantities of heavy

metals occur naturally in the environment and are prevalent in a wide variety of food products.

Both ACANA Heritage Free-Run Poultry and ACANA Regionals Meadowland listed fish and

fish-based ingredients on its packaging, and publicly available studies demonstrate that seafood

typically contains high concentrations of heavy metals. See App’x 111–14 (listing “catfish meal”

as a prominent ingredient in both ACANA products); App’x 366, 376, 427, 452 (listing average

quantities of arsenic, cadmium, lead, and mercury in catfish). Additionally, since at least 2005

regulators have published guidelines regarding the acceptable concentrations of heavy metals in

dog foods, which demonstrates that the public has been aware of the occurrence (or the risk) of

this phenomenon for some time. In sum, the factual record establishes that a reasonable

consumer could have discovered that Champion’s pet foods had a material risk of containing

some measurable amount of heavy metals. Because Plaintiff has failed to show that “the

business alone possesses” this information, its § 349 claim fails. See Oswego, 647 N.E.2d at 745.

Lastly, we acknowledge the importance of consumer labeling, especially as it relates to

food for both humans and pets alike. However, it is not within the province of the courts to

decide what information must be disclosed on consumer packaging. That issue should be for

Congress or a federal agency such as the FDA to determine.

We have considered Plaintiff-Appellant’s remaining arguments and conclude that they are

without merit. The judgment of the District Court is AFFIRMED.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court