KetoNatural Pet Foods v. Hill's Pet Nutrition

• Court: Court of Appeals for the Tenth Circuit
• Decided: July 14, 2026
• Docket: 24-3185
• Status: Published

Opinion

Appellate Case: 24-3185 Document: 51-1 Date Filed: 07/14/2026 Page: 1 FILED United States Court of Appeals PUBLISH Tenth Circuit

UNITED STATES COURT OF APPEALS July 14, 2026 Christopher M. Wolpert FOR THE TENTH CIRCUIT Clerk of Court _________________________________

KETONATURAL PET FOODS, INC., individually and on behalf of all others similarly situated,

Plaintiff - Appellant,

v. No. 24-3185

HILL’S PET NUTRITION, INC., a subsidiary of Colgate-Palmolive Co.,

Defendant - Appellee. _________________________________

Appeal from the United States District Court for the District of Kansas (D.C. No. 2:24-CV-02046-KHV-ADM) _________________________________

Thomas H. Burt (Kath M. McGuire, with him on the briefs), Wolf Haldenstein Adler Freeman & Herz, LLP, New York, New York, for Plaintiff-Appellant.

Stanley J. Panikowski, DLA Piper LLP, San Diego, California (Melissa A. Reinckens, DLA Piper LLP, San Diego, California, and David M. Horniak, DLA Piper LLP, Washington, D.C., with him on the brief) for Defendant-Appellee. _________________________________

Before TYMKOVICH, PHILLIPS, and McHUGH, Circuit Judges. _________________________________

TYMKOVICH, Circuit Judge. _________________________________

KetoNatural Pet Foods filed a class action against a competing pet food company,

Hill’s Pet Nutrition, for false advertising under the Lanham Act. Hill’s produces pet food

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that contains grain; KetoNatural’s pet food is grain free. KetoNatural alleged that Hill’s

and its partner veterinarians and non-profit organizations made false statements that

grain-free pet food is linked to a higher risk of canine heart disease. KetoNatural claimed

that Hill’s, the veterinarians, and the non-profits conspired to falsely disparage grain-free

pet food to harm KetoNatural’s sales.

The district court dismissed KetoNatural’s complaint for failure to state a

claim under Federal Rule of Civil Procedure 12(b)(6). It held that KetoNatural failed

to plausibly allege two elements of a Lanham Act claim: (1) that the challenged

statements were commercial speech, and (2) that the challenged statements were

literally false. We conclude that the district court erred in part. KetoNatural plausibly

alleged that some statements by Hill’s were commercial speech that was false. The

challenged statements by the veterinarians and non-profits, however, were not

commercial speech.

Exercising our jurisdiction under 28 U.S.C. § 1291, we AFFIRM in part and

REVERSE in part, and we REMAND for proceedings consistent with this opinion.

I. Background

A. Factual Background

Because we review the complaint at the motion-to-dismiss stage, we take the

factual allegations from the complaint as true. See SEC v. Shields, 744 F.3d 633, 640

(10th Cir. 2014).

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1. The Parties and Alleged Co-Conspirators

Hill’s is one of the largest and oldest American pet food companies. It primarily

sells complete-diet pet food that contains grain as a major ingredient. Hill’s and two

other pet food companies dominate the market for “traditional” grain-containing

complete-diet pet food in the United States. Before Hill’s’ sales were undermined by the

non-traditional pet food boom, Hill’s was the third-largest seller of complete-diet dog

food in the United States. KetoNatural is a startup that produces and sells grain-free pet

food. KetoNatural alleges that when Hill’s’ sales began to fall, it conspired with several

veterinarians and two ostensibly independent non-profits to publicize the connection

between grain-free diets and dilated cardiomyopathy, a deadly canine heart disease. 1

As a marketing strategy, Hill’s has forged relationships with veterinary

professionals. It proclaims itself the “#1 Vet-Recommended Brand.” App. 21. To

ensure veterinary patronage, Hill’s offers free continuing-education courses and literature

to veterinarians and has partnered with veterinarian researchers to support its marketing.

In return, Hill’s provides partner veterinarians with financial support and promotes their

work through its website. Hill’s also funds research at various veterinary schools where

partner veterinarians are located.

In addition to directly funding veterinarians, Hill’s maintains connections to the

larger veterinary world by funding two non-profits that promote animal welfare. Morris

1 The parties’ briefing and many of the challenged statements refer to the disease as “DCM,” but for readability we refer to it as “canine heart disease.”

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Animal Foundation funds veterinary research projects and institutions, including the

projects and institutions of the alleged co-conspirator veterinarians. And the Mark

Morris Institute contributes to veterinary education by producing textbooks, continuing

education courses, and course materials. Hill’s’ employees and directors have served on

the boards of both organizations.

KetoNatural alleges that Hill’s conspired with its partner veterinarians and

non-profits to paint a false picture of the dangers of KetoNatural’s grain-free pet food.

2. The Alleged False-Statements Campaign

As the grain-free pet food market gained popularity in the United States in the

early 2010’s, Hill’s’ market share declined, falling by more than 20% from 2014 to 2017.

Though Hill’s had long been the third-largest seller of complete-diet dog food in the

United States, it fell to fourth behind a non-traditional dog food company. Recognizing

its financial decline, Hill’s embarked on a marketing strategy to disparage all

non-traditional pet foods. It did this by fabricating a link between non-traditional pet

food—called “BEG” pet food—and canine heart disease. BEG pet foods are those that

are produced by small “boutique” companies, made from “exotic” ingredients, or are

“grain-free.” 2

2 According to the complaint, the BEG category is not unified by a single nutritional quality. App. 64. Boutique refers to pet food produced by a company smaller than the three well-established grain-containing pet food companies, even if that pet food has the same ingredients as Hill’s. Exotic refers to pet food containing various ingredients that apply to every pet food save the three traditional grain- containing ones. Grain-free is self-explanatory. These three categories cover the

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KetoNatural alleges that because of Hill’s’ targeted marketing campaign, Hill’s’

revenues grew by more than 50% from 2018 to 2022. Sales in the BEG industry, by

contrast, suffered the opposite fate. In 2018, for example, BEG sales were growing at

over 8% annually. But after the alleged disparagement campaign, BEG sales reversed

and began to decrease by nearly 6% per year. KetoNatural alleges that its pet food sales

suffered a similar fate. 3

KetoNatural alleges that Hill’s and its co-conspirators embarked on a campaign to

violate the Lanham Act by making, orchestrating, and publicizing a number of false

statements that disparaged BEG pet food like KetoNatural’s. The statements generally

fall into the categories below:

First, Hill’s’ webpages and links. Hill’s claimed on its website that BEG diets

were connected to canine heart disease and linked to veterinarians’ blog posts stating the

same.

Second, Hill’s’ veterinary education materials. Hill’s offered educational

materials and continuing education courses to veterinarians on its website that similarly

asserted the false link.

breadth of the complete-diet pet food industry save that of Hill’s and the two other traditional pet food companies.

KetoNatural did not provide revenue information in its complaint for this 3

period, but it asserts that its injuries are typical of the BEG industry. It intends to prove the damages caused by Hill’s’ marketing campaign at trial.

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Third, the veterinarians’ public statements. The veterinarians reported to the Food

and Drug Administration a spike in canine heart disease in dogs eating BEG diets, and

the FDA announced an investigation into a potential link between the two. The

veterinarians publicized this FDA investigation into a link through several media

appearances. Because of the veterinarians’ efforts, the FDA investigation made a splash. 4

But after four years of investigation, the FDA never established a correlation between

BEG diets and an increased risk of canine heart disease.

Fourth, the veterinarians’ scientific publications. The veterinarians published

studies in scientific journals with misleading titles and abstracts, which led readers to

believe that BEG diets were linked to the disease.

Fifth, the veterinarians’ blogs. The veterinarians mischaracterized those same

studies’ findings in blog posts, again misleading readers to believe that BEG diets were

linked to canine heart disease.

Sixth, a Facebook page and associated website promoting traditional pet food.

Hill’s and the veterinarians moderated and controlled a Facebook group on diet-

associated pet diseases that had over 129,000 members. The moderators published

statements affirming the link between BEG diets and canine heart disease and deleted all

comments contradicting the correlation. The moderators also created a public website to

4 KetoNatural also believes that the veterinarians submitted cherry-picked information to the FDA. For purposes of its Lanham Act claim, however, KetoNatural challenges the veterinarians’ speech following the FDA announcement, not the prior communications prompting the FDA investigation.

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spread the notion that BEG diets were correlated with canine heart disease and suggesting

donations to the institutions run by co-conspirator veterinarians.

Seventh, statements by the non-profits. Both the Morris Animal Foundation and

the Mark Morris Institute propagated misstatements by funding research of the

veterinarians, publishing the work on their websites, and disseminating the false

information to the broader veterinary community through educational initiatives.

Finally, independent veterinarians’ statements. Indoctrinated by the conspiracy’s

educational efforts, these unaffiliated veterinarians informed pet owners about the link,

causing them to stop purchasing BEG pet food.

B. Procedural Background

KetoNatural filed two claims against Hill’s: (1) false advertising in violation of the

Lanham Act, and (2) conspiring to violate the Act in violation of Kansas’s civil

conspiracy law. KetoNatural claims that Hill’s is liable not only for its own Lanham Act

violations, but that Hill’s is also vicariously liable for its co-conspirators’ false statements

through the alleged civil conspiracy.

The district court dismissed KetoNatural’s Lanham Act claim under Rule 12

for two independent reasons: it concluded that (1) the challenged statements were not

commercial speech, and that (2) they were not literally false. 5 As to the first reason,

the court concluded that academic articles categorically cannot be commercial speech

5 The district court passed on deciding whether Rule 9(b) or 12(b)(6) applies to Lanham Act claims because it concluded that KetoNatural failed the lower standard supplied by Rule 12.

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because they are akin to opinions, which are protected speech. The court found that

the remaining categories of speech were not commercial speech because they did not

propose a transaction to purchase Hill’s’ products.

Second, the district court held that KetoNatural did not allege that the

challenged statements were literally false under the Lanham Act. It found fatal that

KetoNatural did not allege facts proving the negative—that BEG diets are not linked

to canine heart disease. The district court considered but rejected applying an

inference that would permit KetoNatural to show that the challenged “science proves

this link” claims were literally false by showing that no science affirmatively proved

the link.

Because the district court dismissed KetoNatural’s Lanham Act claim, it also

dismissed the derivative civil conspiracy claim. Kansas civil conspiracy requires a

predicate independent wrong, and KetoNatural had alleged no wrong besides the

failed Lanham Act claim.

II. Discussion

KetoNatural contends that the district court erred in dismissing its Lanham Act

and civil conspiracy claims against Hill’s. It claims it plausibly alleged commercial

speech on the part of Hill’s and its co-conspirators, and also plausibly alleged

literally false speech.

A. Legal Framework

We review a district court’s grant of a motion to dismiss for failure to state a

claim de novo. McAuliffe v. Vail Corp., 69 F.4th 1130, 1143 (10th Cir. 2023). To 8 Appellate Case: 24-3185 Document: 51-1 Date Filed: 07/14/2026 Page: 9

survive a motion to dismiss under Rule 12(b)(6), “a complaint must contain ‘only

enough facts to state a claim to relief that is plausible on its face.’” Chilcoat v.

San Juan Cnty., 41 F.4th 1196, 1207 (10th Cir. 2022) (quoting Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 570 (2007)). This court “accept[s] as true all well-pleaded

factual allegations in the complaint and view[s] them in the light most favorable to

the plaintiff.” Safe Streets All. v. Hickenlooper, 859 F.3d 865, 878 (10th Cir. 2017)

(citation modified).

The Lanham Act prohibits “false or misleading representation[s] of fact” made

“in commercial advertising or promotion.” 15 U.S.C. § 1125(a)(1). The provision

states:

Any person who, on or in connection with any goods or services, or any container for goods, uses in commerce any word, term, name, symbol, or device, or any combination thereof, or any false designation of origin, false or misleading description of fact, or false or misleading representation of fact, which— (A) is likely to cause confusion, or to cause mistake, or to deceive as to the affiliation, connection, or association of such person with another person, or as to the origin, sponsorship, or approval of his or her goods, services, or commercial activities by another person, or (B) in commercial advertising or promotion, misrepresents the nature, characteristics, qualities, or geographic origin of his or her or another person’s goods, services, or commercial activities, shall be liable in a civil action by any person who believes that he or she is or is likely to be damaged by such act.

Id.

To state a claim, KetoNatural must show “(1) that [Hill’s] made material false

or misleading representations of fact in connection with the commercial advertising

or promotion of its product; (2) in commerce; (3) that are either likely to cause

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confusion or mistake as to (a) the origin, association or approval of the product with

or by another, or (b) the characteristics of the goods or services; and (4) injure the

plaintiff.” Sally Beauty Co., Inc. v. Beautyco, Inc., 304 F.3d 964, 980 (10th Cir.

2002) (citation modified).

In turn, to qualify as a representation made in “commercial advertising or

promotion,” we apply a four-part inquiry. The false representation must be:

“(1) commercial speech; (2) by a defendant who is in commercial competition with

plaintiff; (3) for the purpose of influencing consumers to buy defendant’s goods or

services . . . . [and it] (4) must be disseminated sufficiently to the relevant purchasing

public to constitute advertising or promotion within that industry.” Proctor &

Gamble Co. v. Haugen, 222 F.3d 1262, 1273–74 (10th Cir. 2000) (citation

modified). 6 Whether a representation is “commercial speech” under the Lanham Act

6 Several other circuits have adopted this four-part test for “commercial advertising or promotion” in full. See Podiatrist Ass’n, Inc. v. La Cruz Azul De Puerto Rico, Inc., 332 F.3d 6, 19 (1st Cir. 2003); Seven-Up Co. v. Coca-Cola Co., 86 F.3d 1379, 1384 (5th Cir. 1996); Coastal Abstract Serv., Inc. v. First Am. Title Ins. Co., 173 F.3d 725, 735 (9th Cir. 1999); Suntree Techs., Inc. v. Ecosense Int’l, Inc., 693 F.3d 1338, 1349 (11th Cir. 2012). Others have adopted it in part. See Fashion Boutique of Short Hills, Inc. v. Fendi USA, Inc., 314 F.3d 48, 57–58 (2d Cir. 2002) (adopting elements one, three, and four). For a fuller discussion of our sister circuits’ case law on this test, see generally 4 J. Thomas McCarthy, McCarthy on Trademarks and Unfair Competition § 27:71 (5th ed., June 2026 update).

Both the Second and Seventh Circuits have noted that the Lanham Act’s statutory inquiry applies separately to “advertising” and “promotion.” Fashion Boutique, 314 F.3d at 57 (“Although advertising is generally understood to consist of widespread communication through print or broadcast media, ‘promotion’ may take other forms of publicity used in the relevant industry, such as displays at trade shows and sales presentations to buyers.”); Neuros Co., Ltd. v. KTurbo, Inc., 698 F.3d 514,

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is informed by Supreme Court First Amendment commercial speech jurisprudence,

id. at 1274, since non-commercial speech on matters of public concern, even false

speech, is protected. See United States v. Alvarez, 567 U.S. 709, 722 (2012)

(“reject[ing] the notion that false speech should be in a general category that is

presumptively unprotected” by the First Amendment).

The First Amendment differentiates between “core” and non-core commercial

speech. Core commercial speech is “speech which does ‘no more than propose a

commercial transaction.’” Bolger v. Youngs Drug Prods. Corp., 463 U.S. 60, 66

(1983) (quoting Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council, Inc.,

425 U.S. 748, 762 (1976)). In contrast, non-core commercial speech does more than

merely propose a commercial transaction; it broadly promotes or advertises a product

or good. See Robert Post, The Constitutional Status of Commercial Speech,

48 UCLA L. Rev. 1, 5 (2000) (“[S]ometimes advertising is deemed to be public

discourse rather than commercial speech, and sometimes expression that would not

ordinarily be regarded as advertising is included within the category of commercial

speech. The boundaries of the category are thus quite blurred.”).

The Court has identified three characteristics that “strong[ly] support”

identifying a statement or claim as non-core commercial speech:

522 (7th Cir. 2012) (“If ‘advertising or promotion’ just meant ‘advertising,’ then ‘promotion’ would do no work in the statute. . . . [T]here are industries in which promotion—a systematic communicative endeavor to persuade possible customers to buy the seller’s product—takes a form other than publishing or broadcasting.”).

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(1) it is an advertisement,

(2) it references a specific product, and

(3) it is made with economic motivation.

Bolger, 463 U.S. at 66–67. None of these characteristics alone compel the

conclusion that the speech is commercial. 7

Following Bolger’s example, courts have taken a holistic and functional

approach to recognizing non-core commercial speech. Courts have recognized that

even product disparagement can be actionable non-core commercial speech. See,

e.g., Edward Lewis Tobinick, MD v. Novella, 848 F.3d 935, 950–51 (11th Cir. 2017)

(applying the Bolger test to defendant’s disparaging articles to determine whether the

7 In Bolger, a contraceptives manufacturer began a marketing campaign issuing mass mailings to members of the public. It mailed flyers and pamphlets promoting its products and others discussing the desirability and availability of contraception in general. The Supreme Court determined that each of the flyers and pamphlets was commercial speech, even those that promoted contraception in the abstract. Taking the parties’ concession that the mailed materials were advertisements, the Court concluded that the flyers and pamphlets sufficiently referenced a specific product because they promoted the manufacturer’s contraception, even if by subtle marketing. Id. at 66 & n. 13. In other words, the Court determined that specific product discussion was not needed to promote the manufacturer’s products—because the manufacturer dominated the contraceptive market, even a pamphlet discussing condoms without any specific reference to the manufacturer’s product, and only a footnote reference to the manufacturer, met the core of this characteristic. Lastly, the Court recognized that the manufacturer had economic motivation to mail the flyers and pamphlets. While no characteristic alone supported treating these materials as commercial speech, their combination did. And the fact that the materials discussed issues of public importance, such as venereal disease and family planning, did not change the Court’s conclusion that the materials were commercial speech. The Court recognized that commercial speech does not become “entitled to the constitutional protection afforded noncommercial speech” by merely “link[ing] a product to a current public debate.” Id. at 68 (citation modified).

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speech was commercial for purposes of a Lanham Act claim); Podiatrist Ass’n, Inc.,

332 F.3d at 19–20 (discussing and applying commercial speech doctrine within a

Lanham Act claim to alleged disparaging remarks by insurance representatives

discrediting podiatrists). Thus, for example, we have held that a message to

distributors disseminated over voicemail that maligned the president of a competitor

company as a “Satanist” was commercial speech. We did so because the message

was sent with economic motive and functionally promoted the competing company’s

products. See Haugen, 222 F.3d at 1275. Although the disparaging speech did not

present “a classic advertising campaign,” it functioned like one. See id. at 1274–75

(citation modified); see also Procter & Gamble Co. v. Amway Corp., 242 F.3d 539,

552 (5th Cir. 2001), abrogated on other grounds by Lexmark Int’l, Inc. v. Static

Control Components, Inc., 572 U.S. 118 (2014) (determining that the same

disparaging Satanist speech at issue in Haugen, though not obviously an

advertisement, could nevertheless be commercial speech if made with economic

motivation—because the character of the speaker’s motivation determined whether

the court should consider the speech an advertisement); Ariix, LLC v. NutriSearch

Corp., 985 F.3d 1107, 1117 (9th Cir. 2021) (recognizing that a nutritional supplement

catalog that rigged ratings constituted commercial speech because the owner did so

primarily motivated by compensation from the favored company). These cases

illuminate the core of a holistic approach to identifying commercial speech. While a

speaker’s economic motivation for speech does not necessarily transform the speech

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into commercial speech, it informs whether that speech was intended to be an

advertisement and promote certain products. 8

In addition to the requirement of commercial speech, the Lanham Act requires

that the statements be false. To demonstrate that a representation is false or

misleading, the plaintiff must show that the representation is “literally false, either on

its face or by necessary implication,” or that it is “literally true but likely to mislead

or confuse customers.” 9 Vitamins Online, Inc. v. Heartwise, Inc., 71 F.4th 1222,

1235 (10th Cir. 2023) (quoting Zoller Lab’ys, LLC. v. NBTY, Inc., 111 F. App’x 978,

982 (10th Cir. 2004)). To be literally false, a statement must be unambiguous. I Dig

Texas, LLC v. Creager, 98 F.4th 998, 1009 (10th Cir. 2024). A literally false “claim

is conveyed by necessary implication when, considering the advertisement in its

entirety, the audience would recognize the claim as readily as if it had been explicitly

stated.” Zoller Lab’ys, 111 F. App’x at 982–83 (quoting Clorox Co. P.R. v. Proctor

& Gamble Com. Co., 228 F.3d 24, 35 (1st Cir. 2000)).

In cases involving commercial speech that touches on scientific or expert

opinion, courts have added a twist in considering falsity. When a statement claims it

is backed up by scientific data, courts can consider whether the underlying data in

8 The Court has made clear that economic motivation cannot alone transform speech into commercial speech. Bolger, 463 U.S. at 67 (collecting cases). Otherwise, newspapers, magazines, and books offered for sale could be considered commercial publications.

KetoNatural waived the “true but misleading” theory of false speech. See 9

Oral Argument at 4:56 (conceding failure to preserve).

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fact supports the assertion. For such a statement to be false, a plaintiff must show

that the scientific tests “d[o] not establish the proposition for which they were cited,”

or that they “were not sufficiently reliable to permit [the] conclusion” for which they

were cited. Castrol, Inc. v. Quaker State Corp., 977 F.2d 57, 63 (2d Cir. 1992); see

also Osmose, Inc. v. Viance, LLC, 612 F.3d 1298, 1309 (11th Cir. 2010). Courts call

this concept the “establishment claim doctrine” because the truth of the statement is

claimed to have been established by the underlying scientific evidence. 10

* * *

With this legal framework in mind, we turn to KetoNatural’s commercial

speech allegations.

B. Application

We start by reviewing the allegations against Hill’s and then turn to those

against the veterinarians and non-profits.

10 The Second, Third, Fourth, Seventh, Eighth, Ninth, Eleventh, and D.C. Circuits have all adopted or applied some form of the establishment claim doctrine. See, e.g., Castrol, Inc., 977 F.2d at 63; Novartis Consumer Health, Inc. v. Johnson & Johnson-Merck Consumer Pharms. Co., 290 F.3d 578, 590 (3d Cir. 2002); C.B. Fleet Co., Inc. v. SmithKline Beecham Consumer Healthcare, L.P., 131 F.3d 430, 435 (4th Cir. 1997); BASF Corp. v. Old World Trading Co., 41 F.3d 1081, 1091 (7th Cir. 1994); Rhone-Poulenc Rorer Pharms., Inc. v. Marion Merrell Dow, Inc., 93 F.3d 511, 514–15 (8th Cir. 1996); Southland Sod Farms v. Stover Seed Co., 108 F.3d 1134, 1139 (9th Cir. 1997); Osmose, Inc., 612 F.3d at 1309; ALPO Petfoods, Inc. v. Ralston Purina Co., 913 F.2d 958, 964–65 & n.7 (D.C. Cir. 1990).

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1. Hill’s’ Speech

KetoNatural alleges that Hill’s violated the Lanham Act by disparaging its

products (1) in Hill’s’ webpages and linked webpages, and (2) through Hill’s’

veterinary education materials on its website. Hill’s argues that these challenged

statements are not commercial speech because they do not share two of the Bolger

characteristics for non-core commercial speech: they are not advertisements and do

not reference a specific product.

a. Hill’s’ Webpages and Links

KetoNatural alleges that among others, the following statements and links on

Hill’s’ website constitute commercial speech.

• In a webpage discussing protein in dog diets, Hill’s wrote that “trends” such as “grain-free, raw, vegan, farm-to-table, plant-based, or homemade” dog foods can “pose health risks for dogs.” App. 78.

• On that same webpage, “health risks for dogs” hyperlinked to an alleged co-conspirator veterinarian’s blog article titled, “A Broken Heart: Risk of Heart Disease in Boutique or Grain-Free Diets and Exotic Ingredients,” and the article contained numerous allegations of a link between canine heart disease and BEG diets. App. 71, 78. For example, the article asserted that “[w]hat seems to be consistent is that [DCM] does appear to be more likely to occur in dogs eating boutique, grain-free, or exotic- ingredient diets.” App. 73.

• And a separate Hill’s webpage titled “Cardiomyopathy in Dogs: What You Need to Know,” linked to a page where another alleged co-conspirator veterinarian states that “[t]hese boutique diets tend to come from smaller manufacturers that may not have the nutritional expertise and resources to ensure quality control that the larger, established companies have . . . . We are not yet seeing DCM in smaller dogs fed grain-free diets produced by large-scale manufacturers.” App. 104–05.

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We begin with the first Bolger characteristic—whether these statements are

advertisements. We readily concede that they do not present themselves as a “classic

advertising campaign,” but they need not do so to promote Hill’s products. Haugen,

222 F.3d at 1274. As some circuits have noted, economic motivation to sell products

informs whether the speaker intended the speech to function as an advertisement.

See, e.g., Ariix, 985 F.3d at 1116 (“While such social media posts may not have the

indicia of a traditional advertisement, there can be little doubt that these paid posts

are in fact advertisements.”); Amway, 242 F.3d at 552 (“Certainly the repetition of

the rumor via [a telephone messaging system] was not an advertisement in the classic

sense, but whether it could be considered as a negative advertisement against P&G

seems to depend on . . . whether the speaker had an economic motivation for the

speech.”). 11

Next, the second Bolger characteristic—whether the statements promote a

specific product. Although these statements do not promote a particular Hill’s

product, they plausibly promote Hill’s’ grain-based pet food as safer for dogs, even

without naming Hill’s explicitly. As Bolger recognized, “a company with sufficient

control of the market for a product may be able to promote the product without

11 In any event, we need not find that these statements are advertisements to find that they still constitute commercial speech. We apply the Bolger characteristics holistically and have found that when the other two characteristics are present, the plaintiff has plausibly alleged commercial speech. Haugen, 222 F.3d at 1275.

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reference to its own brand names.” Bolger, 463 U.S. at 66 n.13. As in Bolger, Hill’s

maintains a coveted spot in this market. It is one of three companies that dominate

the traditional pet food market in the United States. As a result, its disparagement of

non-traditional, BEG pet food is a tacit promotion of its own pet food. And the fact

that the statements promote Hill’s’ brand, rather than a specific product, does not

remove their commercial character. See, e.g., Jordan v. Jewel Food Stores, Inc.,

743 F.3d 509, 518 (7th Cir. 2014) (“An advertisement is no less ‘commercial’

because it promotes brand awareness or loyalty rather than explicitly proposing a

transaction in a specific product or service.”). Bolger itself recognized that brand

promotion met this second characteristic when analyzing the informational

contraception pamphlet issued by the leader in the contraceptive market.

Finally, as to the third Bolger characteristic—these statements were made with

economic motivation to bolster Hill’s’ sales. According to the complaint, Hill’s was

rapidly losing market share to BEG-producing pet food companies. It had even slid

to fourth in the complete-diet pet food market. And so, working with veterinarians

and its own non-profits, it orchestrated a media campaign to turn customers back

towards the big three “traditional” pet food companies. Hill’s appeared to succeed,

swiftly regaining market share. Taking the complaint’s allegations as true, Hill’s had

clear economic motivation to make statements like these to return the market to

traditional pet food companies. Cf. Porous Media Corp. v. Pall Corp., 173 F.3d

1109, 1120–21 (8th Cir. 1999) (concluding that the speaker’s financial concerns

18 Appellate Case: 24-3185 Document: 51-1 Date Filed: 07/14/2026 Page: 19

associated with a direct competitor’s product evidenced the speech’s economic

motivation).

The same is true of the statements linked from Hill’s’ website. For example,

Hill’s’ webpage stated that “trends” such as “grain-free, raw, vegan, farm-to-table,

plant-based, or homemade” dog foods can “pose health risks for dogs,” and

hyperlinked “health risks for dogs” to a veterinarian’s blog bolstering the alleged

false link. App. 78. These and similar hyperlinks are plausibly commercial speech

because by their presence on Hill’s’ website, they promote Hill’s as a non-BEG

alternative—a safer dog food. Hill’s contends that any disparaging statements on the

linked webpages are not commercial speech because they make no mention of Hill’s

and its products. And analyzed alone, the speech on the linked webpages is not. But

hyperlinks to the relevant webpages are embedded in Hill’s’ website. Because of the

hyperlinks’ location and the fact that the linked pages disparage BEG dog foods, the

linked webpages can plausibly be understood to promote Hill’s’ products. See

Tobinick, 848 F.3d at 951 (explaining that “a restaurant or movie review or a product

report on its own is not commercial speech under the Lanham Act . . . but can be

transformed into commercial speech when, for instance, a restaurant posts the review

in its window” (citation modified)).

KetoNatural has plausibly alleged that some statements and links on Hill’s’

webpages are commercial speech.

KetoNatural has also plausibly alleged that these statements are literally false.

As we discussed above, the establishment claim doctrine applies when a plaintiff

19 Appellate Case: 24-3185 Document: 51-1 Date Filed: 07/14/2026 Page: 20

challenges as literally false commercial speech’s explicit or implicit reliance on

scientific data to prove the truth of its claims. To prevail on these claims, a plaintiff

must show that the scientific studies relied on either are not sufficiently reliable to

prove their own conclusions or that the scientific studies do not establish the

assertion for which they are cited. Castrol, Inc., 977 F.2d at 63. We find that

KetoNatural has plausibly alleged that the supporting scientific studies do not

establish the statements’ assertions.

Take the following example from above: a link titled “health risks for dogs” on

Hill’s’ webpage that leads to the following on a veterinarian’s blog: “[w]hat seems to

be consistent is that [DCM] does appear to be more likely to occur in dogs eating

boutique, grain-free, or exotic-ingredient diets.” App. at 73, 78. This statement

permits an establishment claim because it establishes a correlation between the diet

and the disease by implicitly relying on some independent, objectively verifiable

study showing consistent and higher rates of canine heart disease in BEG-eating

dogs. And it is plausibly literally false because KetoNatural alleges that no study

supports the correlation. 12

12 KetoNatural’s complaint alleges that the relevant studies Hill’s and the veterinarians reference, or may have relied on, suffer from one of at least four infirmities. These structural infirmities led Hill’s to misrepresent the findings of the studies. See App. 90–92. KetoNatural explains how these studies do not show (1) that dogs with canine heart disease who ate BEG diets experienced better clinical outcomes with a diet change, because there were uncontrolled variables in the study; (2) that dogs with canine heart disease who ate BEG diets lived longer with a diet change away from BEG foods, when the cited studies do not directly compare life expectancy for dogs who switched from BEG diets to traditional pet foods and those

20 Appellate Case: 24-3185 Document: 51-1 Date Filed: 07/14/2026 Page: 21

In short, KetoNatural has successfully alleged that this category of Hill’s’

statements plausibly includes literally false commercial speech.

b. Hill’s Veterinary Education Materials

Likewise, KetoNatural has plausibly alleged that at least some of the

veterinary education materials on Hill’s’ website constitute commercial speech.

Hill’s’ website has a section intended for veterinarians and veterinarian technicians

that requires account creation. The complaint alleges:

• The password-protected section offers a 90-minute presentation on “Navigating the Pet Food Aisle.” One slide titled, “Premium Priced . . . may not be premium quality,” states: “Diet-induced cardiomyopathy reported since 2017 in dogs fed ‘premium’ grain-free and boutique foods.” App. 105–06.

• In a separate presentation funded by Hill’s and posted for veterinarians, a summary about the evidence around canine heart disease in dogs stated, “[b]y now, most veterinary professionals understand that there’s a link between BEG diets and atypical dog breeds developing DCM.” App. 106– 08.

In context, the posted materials plausibly (1) function as an advertisement by

disparaging BEG diets, (2) promote Hill’s’ brand, and (3) were made with economic

motivation. This conclusion is strengthened because KetoNatural has alleged that

who continued to eat BEG diets; (3) that BEG diets are linked to canine heart disease, when BEG diets are linked only with subclinical symptoms that are not proven to be correlated with canine heart disease; and (4) that BEG diets are correlated with or have caused the recent canine heart disease spike, when no incidence studies have been performed to show this. Id. As a result, KetoNatural alleges that statements that make any of these four points are “literally false” under establishment claim doctrine because the studies either “d[o] not establish the proposition for which they were cited,” or they “[a]re not sufficiently reliable to permit [the] conclusion” for which they are cited. Castrol, Inc., 977 F.2d at 63. 21 Appellate Case: 24-3185 Document: 51-1 Date Filed: 07/14/2026 Page: 22

Hill’s’ marketing model targets veterinarians. C.f. Haugen, 222 F.3d at 1274 (noting

that one element in determining whether speech is “commercial advertising or

promotion” under the Lanham Act is whether it was disseminated to the “relevant

purchasing public”).

Hill’s counters that these materials are purely educational and informational

and should not be treated as commercial speech. See Bolger, 463 U.S. at 68

(“A company has the full panoply of protections available to its direct comments on

public issues . . . . ”). But educational or informational speech can become

commercial when disseminated to promote the purchase of goods, as was alleged

here. See id. at 67–68 (dismissing the same argument about pamphlets discussing

venereal disease and family planning). 13 The commercial speech inquiry is fact

intensive, and viewing the allegations in the complaint holistically, we cannot

categorically conclude that Hill’s’ statements are protected educational speech.

13 See also Washington Legal Found. v. Friedman, 13 F. Supp. 2d 51, 62–65 (D.D.C. 1998), amended, 36 F. Supp. 2d 16 (D.D.C. 1999), and appeal dismissed, judgment vacated in part sub nom. Washington Legal Found. v. Henney, 202 F.3d 331 (D.C. Cir. 2000), and amended, 36 F. Supp. 2d 418 (D.D.C. 1999), and appeal dismissed, judgment vacated in part sub nom. Washington Legal Found. v. Henney, 202 F.3d 331 (D.C. Cir. 2000) (concluding that peer-reviewed journal articles and medical textbook reprints disseminated by a manufacturer to physicians promoting off-label drug uses were commercial speech); Gordon & Breach Sci. Publ’rs S.A. v. Am. Inst. of Physics, 859 F. Supp. 1521, 1544–45 (S.D.N.Y. 1994) (concluding that a comparative survey of science journals disseminated to a targeted audience of librarians that promoted defendant’s journals was commercial speech); Bracco Diagnostics, Inc. v. Amersham Health, Inc., 627 F. Supp. 2d 384, 458–63 (D.N.J. 2009) (concluding that a selected article disseminated to physicians favoring defendant’s x-ray contrast media was commercial speech).

22 Appellate Case: 24-3185 Document: 51-1 Date Filed: 07/14/2026 Page: 23

“[B]ecause this information is in fact supplied by [Hill’s], and because the primary

purpose for supplying the information is to encourage the purchase of [Hill’s’]

featured product, the court must conclude that the speech is ‘entitled to the qualified

but nonetheless substantial protection accorded to commercial speech.’” Washington

Legal, 13 F. Supp. 2d at 65 (quoting Bolger, 463 U.S. at 68).

We conclude that KetoNatural has plausibly alleged that Hill’s has

disseminated commercial speech through its educational materials for veterinarians.

The materials also satisfy the establishment claim doctrine. For example, a

statement discussed earlier: under the slide title, “Premium Priced . . . may not be

premium quality,” the slide states “Diet-induced cardiomyopathy reported since 2017

in dogs fed ‘premium’ grain-free and boutique foods.” App. 106. It implicitly relies

on verifiable incidence data showing that BEG diets are correlated with the canine

heart disease spike, and it satisfies the doctrine because KetoNatural alleges that no

such data exists. KetoNatural alleges that the only thing close to incidence data are

the reports to the FDA, and those were allegedly cherry-picked and manipulated by

Hill’s and other complainants.

In sum, KetoNatural has plausibly alleged that these educational statements, as

well as statements on Hill’s’ webpages and hyperlinked pages, are actionable

2. Speech of the Veterinarians

KetoNatural also alleges that Hill’s is vicariously liable for the Lanham Act

violations of the alleged co-conspirator veterinarians. It alleges that these

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veterinarians violated the Lanham Act by disparaging its products in (1) public media

statements following the FDA investigation and blog posts describing their research,

(2) academic articles, and (3) a Facebook page and spinoff website, all by warning

about the link between BEG diets and canine heart disease. 14

Hill’s charges that these challenged categories of statements do not constitute

actionable commercial speech because they do not share two of the Bolger

characteristics for non-core commercial speech: they are not advertisements and do not

reference a specific product. We agree.

a. Veterinarians’ Public Media Statements and Blog Posts

KetoNatural has not plausibly alleged that the veterinarians’ public media and

blog post statements are commercial speech. Rather, these statements are First-

Amendment-protected statements on matters of public concern.

The complaint alleges, as a sample:

• In an NBC News article, “It’s Not Going Away”: Vets Still Seeing Cases of Dog Heart Problems Linked to Grain-Free Food, a veterinarian provided quotes including, “[t]here are most likely other pathways to heart damage in dogs consuming BEG diets.” App. 70.

• A veterinarian wrote in her blog that a “recent increase in heart disease in dogs eating certain types of diets [i.e., BEG diets] may shed light on the role of diet in causing heart disease.” App. 71–72.

• And again: “[Diet-associated DCM] can improve significantly when the diet is changed.” App. 75.

14 The district court construed KetoNatural’s complaint to also allege that Hill’s is vicariously liable for unaffiliated veterinarians’ disparaging speech. To the extent that KetoNatural did allege this, we address it last.

24 Appellate Case: 24-3185 Document: 51-1 Date Filed: 07/14/2026 Page: 25

• And again, in an article titled “Diet-Associated Dilated Cardiomyopathy: The Cause is Not Yet Known But It Hasn’t Gone Away”: a veterinarian wrote, “[m]ost dogs with diet-associated DCM have been eating non-traditional [BEG] diets for over one year.” App. 75, 77.

These statements and similar ones perhaps implicitly disparage BEG pet food,

but in context they are too remote to be treated as commercial speech promoting

Hill’s’ products.

First, the statements in the veterinarians’ articles and blogs, without more, do

not function to promote or advertise Hill’s’ products. Like we noted above when

discussing Hill’s’ statements, none of these present themselves as a “classic

advertising campaign.” Haugen, 222 F.3d at 1274. But unlike Hill’s’ statements, the

veterinarians’ statements are too attenuated from Hill’s to reflect Bolger’s remaining

characteristics of non-core commercial speech.

Neither do the statements meet the second Bolger characteristic: that they

promote Hill’s’ products or brand. The excerpts do not plausibly promote Hill’s’

brand because they are untethered from Hill’s: Hill’s is not the speaker, nor do the

excerpts mention Hill’s. The speaker matters. The speaker provides context to the

consumer that the speech may be commercial. And unlike the unique market position

of Hill’s and that of the contraceptive manufacturer in Bolger, who both occupied

“sufficient control of the market,” such that they “may be able to promote the product

without reference to [their own] brand names,” the veterinarians do not occupy the

same position. See Bolger, 463 U.S. at 66 n.13. No similar context bridges the

inferential gap tying their speech disparaging BEG foods to speech promoting Hill’s’

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products. See id.; see also Tobinick, 848 F.3d at 950–51 (concluding that defendant’s

articles criticizing plaintiff doctor’s dubious medical treatments were not commercial

speech in part because they did not mention defendant doctor’s medical practice or

services).

Finally, KetoNatural does not plausibly allege that the veterinarians made

these statements with economic motivation. Even granting that the named

veterinarians conspired with Hill’s to disparage BEG dog food, KetoNatural does not

plead sufficient factual allegations that the veterinarians made these statements in

direct expectation of pecuniary gain from Hill’s. See Ariix, 985 F.3d at 1116

(explaining that the third Bolger factor “asks whether the speaker acted primarily out

of economic motivation, not simply whether the speaker had any economic

motivation.”); Amway, 242 F.3d at 552–53 (“The question whether an economic

motive existed is more than a question whether there was an economic incentive for

the speaker to make the speech; the Bolger test also requires that the speaker acted

substantially out of economic motivation.”).

KetoNatural has alleged merely that the veterinarians received research

funding from Hill’s, either directly or indirectly through their universities. It did not

allege that research funding was contingent on the statements made in these blogs

and social media appearances, nor did it allege that the research funding depended on

the topic or result of the research itself. Cf. Ariix, 985 F.3d at 1117–18 (finding that

plaintiff plausibly alleged that the supplement guide was economically motivated to

rig ratings because it pleaded facts of a hidden marketing arrangement between the

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guide and the preferred company). For a court to infer that the veterinarians’ speech

was economically motivated, KetoNatural must at least plead facts that the

veterinarians were compensated or otherwise received a quid pro quo from Hill’s for

their speaking and writing. 15 But KetoNatural failed to do so. Simply put, the

economic motive KetoNatural urges is too attenuated from Hill’s and its products to

render the veterinarians’ speech commercial.

Because “Congress did not wish to extend federal Lanham Act liability to

speech that is subject to broader general First Amendment protection than is

commercial speech,” no liability lies. Boule v. Hutton, 328 F.3d 84, 95 (2d Cir.

2003) (Calabresi, J., concurring). The district court correctly dismissed

KetoNatural’s claim for this category of statements.

b. Veterinarians’ Academic Articles

KetoNatural also fails to plausibly allege that the veterinarians’ academic

articles are commercial speech. The district court correctly recognized that as a

general matter, scientific articles do not include actionable commercial speech.

See, e.g., Pacira BioSciences, Inc. v. Am. Soc’y of Anesthesiologists, Inc., 63 F.4th

240, 246–48 (3d Cir. 2023) (discussing that scientific conclusions are like opinions

and thus not actionable speech); Conformis, Inc. v. Aetna, Inc., 58 F.4th 517, 534

15 The complaint alleges that one veterinarian, Dr. Freeman, gave sponsored lectures for Hill’s, but it does not allege that those sponsored lectures included speech disparaging BEG diets or that compensation was contingent on her speaking on that topic.

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(1st Cir. 2023) (recognizing the force of this principle). “[T]o the extent a speaker or

author draws conclusions from non-fraudulent data, based on accurate descriptions of

the data and methodology underlying those conclusions, on subjects about which

there is legitimate ongoing scientific disagreement, those statements are not grounds

for a claim of false advertising under the Lanham Act.” ONY, Inc. v. Cornerstone

Therapeutics, Inc., 720 F.3d 490, 498 (2d Cir. 2013) (holding that scientific

conclusions of this kind are non-actionable opinions). KetoNatural’s allegations of

false statements within these academic articles fall squarely within this accepted rule.

We affirm the district court’s dismissal of KetoNatural’s claim with respect to this

category of challenged speech.

c. The Facebook Page and Website

KetoNatural has likewise failed to plausibly allege that the Facebook page and

associated website engaged in commercial speech.

KetoNatural alleged that Hill’s and veterinarians started a Facebook page that,

at the time of suit, was titled, “Diet-Associated Dilated Cardiomyopathy (DCM) in

Dogs.” And it alleged that the moderators of the Facebook page started a spinoff

website publishing similar speech. Along with deleting comments that were

“contrary to the science” that the page held as tenets, 16 the Facebook page

disseminated the following speech:

16 The act of deleting posts is editorializing, which is speech, and thus arguably commercial speech. C.f. Moody v. NetChoice, LLC, 603 U.S. 707, 740 (2024) (stating that when social media platforms “decide which third-party content those

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• “[W]e only know what broad diet types have been associated with the disease: those that are high in pulse legumes, such as peas and lentils, those that are grain-free, those that are produced by small manufacturers with heavier focus on marketing than research.” App. 111.

• “What we know so far is that disease [DCM] is disproportionately associated with grain-free diets or diets high in pulse legumes, such as peas or lentils, particularly when made by manufacturers with a small market share.” App. 112.

Additionally, the moderators of the DCM Facebook group published similar

speech on the public-facing website:

• “DCM is caused by boutique brands, exotic proteins, or grain-free or a combination thereof . . . .” App. 116.

• And again, “[t]he FDA has identified a worrying correlation between grain- free diets and dilated cardiomyopathy.” App. 115.

Similar to the analysis of the veterinarians’ public media statements and blog

posts, the Facebook page and associated website’s statements are too attenuated from

Hill’s to be understood as commercial speech. Facially, the statements are not

advertisements. Nor do they promote a specific product or brand. Even if the

statements do disparage BEG dog foods, a consumer would not interpret them to

promote Hill’s’ dog food. See Tobinick, 848 F.3d at 951 (explaining that restaurant

reviews, product reports and the like are not commercial speech until used by an

owner to promote his own goods or services). Lastly, we do not know who the

Facebook moderators are, and most importantly, how they participated in and were

feeds will display, or how the display will be ordered and organized, they are making expressive choices”).

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economically motivated by the alleged conspiracy. KetoNatural admitted as much.

It alleged only that the moderators “work[ed] closely” with a veterinarian—but did

not otherwise allege involvement in the conspiracy. App. 111. Without more,

KetoNatural has not plausibly alleged that this category of statements includes

d. Veterinarians’ Statements to Pet Owners

Finally, in its complaint, KetoNatural implies that several non-affiliated

veterinarians educated by Hill’s’ efforts propagated the connection between canine

heart disease and BEG diets. But there is no plausible allegation that any of these

veterinarians’ statements promoted Hill’s’ brand or were economically motivated.

To the extent that KetoNatural alleged that Hill’s is vicariously liable for the

statements of non-affiliated veterinarians, we affirm the district court’s dismissal of

this claim.

3. The Non-Profits

The same analysis applies to the speech of the non-profits. The complaint

does not plausibly allege that the Morris Animal Foundation or the Mark Morris

Institute engaged in commercial speech for Lanham Act purposes. 17 For example, it

alleges that the Morris Animal Foundation

17 The complaint does not allege any specific commercial speech disseminated by the Mark Morris Institute in its veterinary education materials. Thus, we affirm the district court’s conclusion that KetoNatural failed to plausibly allege commercial speech by the Institute.

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• posted information on its website about “diet associated DCM,” and quotes a veterinarian saying, “[h]ome-cooked diets have been implicated in this problem, as well as small batch, boutique dog foods.” App. 78–79.

Repeating the same Bolger analysis applied to the veterinarians, this speech is

facially not an advertisement, and it does not reference a specific product or brand.

See Bolger, 463 U.S. at 66–67. Nor does KetoNatural allege that the Foundation

spoke motivated by direct economic gain from Hill’s. See id. Allegations that Hill’s

funds the Foundation and influences its executive decisions cannot satisfy the quid

pro quo necessary to successfully allege that Hill’s’ gains economically motivated

the Foundation to make such statements. KetoNatural has failed to allege that the

non-profits engaged in commercial speech promoting Hill’s’ pet food.

In sum, KetoNatural has plausibly alleged under Rule 12(b)(6) that Hill’s has

engaged in commercial speech, and that each actionable speech category includes

literally false statements. Thus, we affirm the district court’s dismissal regarding

non-actionable speech categories and reverse as to the remaining categories. We

remand to the district court to determine two issues: (1) whether Rule 9(b) or

12(b)(6) applies to Lanham Act claims, and (2) whether KetoNatural has successfully

pleaded a Lanham Act claim under the appropriate pleading standard. 18

18 The district court passed on deciding whether to apply the particularity pleading standard for a Lanham Act claim under Rule 9. Because we conclude that KetoNatural survives dismissal under Rule 12(b)(6), the appropriate pleading standard is once again relevant. We remand the question of the appropriate standard to the district court for it to decide in the first instance.

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C. Kansas Civil Conspiracy

KetoNatural also sued Hill’s for civil conspiracy under Kansas law. Hill’s

contends that a Lanham Act violation cannot serve as the predicate violation of law

required for a civil conspiracy claim. See Stoldt v. City of Toronto, 678 P.2d 153,

161 (Kan. 1984) (explaining that “[c]onspiracy is not actionable without commission

of some wrong giving rise to a cause of action independent of the conspiracy”).

We need not resolve this question. The district court dismissed the civil

conspiracy claim because it dismissed the underlying Lanham Act claim, but we

reverse and remand the Lanham claim respecting Hill’s’ statements. And because we

remand on the Lanham Act claim, we must also remand on the contingent Kansas

civil conspiracy claim. SEC v. Cochran, 214 F.3d 1261, 1267 (10th Cir. 2000) (“As

a general rule . . . we do not consider issues not passed on below, and it is appropriate

to remand the case to the district court to first address an issue.”). We remand to the

district court to determine the appropriate pleading standard, whether Hill’s’ alleged

Lanham violation can serve as a predicate violation for civil conspiracy, and whether

KetoNatural has sufficiently alleged the remaining elements.

III. Conclusion

For the foregoing reasons, we affirm in part, reverse in part, and remand for

proceedings consistent with this opinion.