Appellate Case: 20-1274 Document: 010110645297 Date Filed: 02/15/2022 Page: 1 FILED United States Court of Appeals PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS February 15, 2022
TENTH CIRCUIT Christopher M. Wolpert Clerk of Court
CAMMEO RENFRO; BARB McGRAW; DESIREE DEMPSTER,
Plaintiffs - Appellants, v. No. 20-1274 CHAMPION PETFOODS USA, INC; CHAMPION PETFOODS LP,
Defendants - Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO (D.C. NO. 1:18-CV-02756-DDD-MEH)
Kenneth Wexler (Robert K. Shelquist and Rebecca A. Peterson, Lockridge Grindal Nauen P.L.L.P., Minneapolis, Minnesota, Daniel E. Gustafson and Raina C. Borrelli, Gustafson Gluek PLLC, Minneapolis, Minnesota, Kevin A. Seely and Steven M. McKany, Robbins LLP, San Diego, California, Joseph DePalma and Susana Cruz Hodge, Lite Depalma Greenberg, LLC, Newark, New Jersey, and Charles LaDuca and Katherine Van Dyck, Cuneo Gilbert & LaDuca, LLP, Washington, D.C., with him on the briefs), Wexler Wallace LLP, Chicago, Illinois, for Appellants.
Dominic Draye (David A. Coulson, Greenberg Traurig LLP, Miami, Florida, and John K. Crisham, Greenberg Traurig LLP, Denver, Colorado, with him on the brief), Greenberg Traurig LLP, Washington, DC, for Appellees.
Before TYMKOVICH, Chief Judge, HOLMES, and McHUGH, Circuit Judges. Appellate Case: 20-1274 Document: 010110645297 Date Filed: 02/15/2022 Page: 2
TYMKOVICH, Chief Judge.
A group of pet owners brought a class action against Champion Petfoods
USA, Inc., alleging representations on Champion’s packaging on its Acana and
Orijen brands of dog food were false and misleading. Champion’s dog food
packaging contains a number of claims about the product, advertising the food as
“Biologically Appropriate,” “Trusted Everywhere,” using “Fresh and Regional
Ingredients,” and containing “Ingredients We Love [From] People We Trust.”
The district court dismissed the claims as either unactionable puffery or overly
subjective and therefore not materially misleading to a reasonable consumer.
We agree with the district court that Plaintiffs’ claims fail to allege
materially false or misleading statements on Champion’s packaging because the
phrases fail to deceive or mislead reasonable consumers on any material fact. We
therefore AFFIRM the district court’s grant of Champion’s motion to dismiss.
I. Background
Champion is a pet food producer located in Auburn, Kentucky, where it
manufactures pet food that is distributed throughout the United States. 1 It
launched a food brand called Acana in the 1990s, and in 2006 another called
Orijen. Champion’s Orijen brand was aimed at offering a premium product to
consumers that would mirror foods dogs might encounter in the wild. Champion
1 Champion Petfoods USA Inc. is a subsidiary of Champion Petfoods LP, a Canadian limited partnership.
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marketed Orijen as “Biologically Appropriate” dog food that contained the
“richness, freshness, and variety” of meats dogs were “evolved to eat.”
Champion later employed the same nutritional philosophy with its Acana brand as
well.
The food packaging reflected this branding. For example, on Orijen bags,
the packaging explained that “Biologically Appropriate” meant that the food
would “nourish as nature intended.”
The Orijen packaging also advertised it was “Trusted Everywhere” and
contained “Fresh Regional Ingredients” “Grown Close to Home” that were
“ethically raised by people we know and trust[.]”
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On the packaging of certain dog food formulas, Champion made more
specific claims. For example, on the packaging of the Orijen Six Fish formula
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pictured below, Champion listed the approximate amount of each fish included by
weight. Champion noted that some of the fish—such as the wild monkfish and
wild Alaskan cod—were fresh or raw, while other fish included were fresh, raw,
or dried. And it also noted that only eleven of the thirteen pounds in the bag were
fish.
Unrelated to its packaging advertising, Champion was notified in 2018 by
the Food and Drug Administration that some of the beef tallow (beef fat) it used
in certain pet food formulas had been contaminated with pentobarbital, a
controlled substance. But none of the dog foods purchased by Plaintiffs
contained ingredients tainted with pentobarbital.
II. Procedural History
Plaintiffs filed this class action in the District of Colorado. In the
complaint, they allege seven claims based on Champion’s package labeling and
sale of contaminated product, including: (1) violation of the Colorado Consumer
Protection Act, (2) breach of express warranty, (3) breach of implied warranty,
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(4) fraudulent misrepresentation, (5) fraudulent concealment, (6) unjust
enrichment, and (7) negligence.
The district court dismissed the case based on Plaintiffs’ failure to allege
any materially false or misleading representations or omissions of material fact.
The district court acknowledged that whether a statement is false or misleading is
typically a question for the jury, but when statements are “so general or devoid of
specific factual content,” they are incapable of empirical verification and cannot,
“as a matter of law, give rise to liability.” Aplt. App. at 199. First, the district
court dismissed “Trusted Everywhere” and “Ingredients We Love [from] People
We Trust” as “non-actionable puffery” because no rational consumer would rely
on these two phrases as material statements of fact. Id. at 202. Next, the court
found that Plaintiffs lacked standing to bring any claims under “Biologically
Appropriate” because they did not allege the dog food they purchased from
Champion contained any pentobarbital contamination. Because Plaintiffs had
purchased all the dog food before Champion received shipments of allegedly
contaminated ingredients, they suffered no harm arising from Champion’s
packaging. Third, the claims based on the statement about “Fresh Regional
Ingredients” were dismissed as subjective claims that were not empirically
verifiable. Finally, the district court dismissed Plaintiffs’ claims that Champion
omitted material facts, finding that the packaging was not misleading.
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III. Analysis
We review dismissal under Rule 12(b)(6) for failure to state a claim de
novo. Kansas Penn Gaming, LLC v. Collins, 656 F.3d 1210, 1214 (10th Cir.
2011). In doing so, we accept “all the well-pleaded allegations of the complaint
as true and must construe them in the light most favorable to the plaintiff.”
Albers v. Bd. of Cnty. Comm’rs of Jefferson Cnty., Colo., 771 F.3d 697, 700 (10th
Cir. 2014). To survive a motion to dismiss, a complaint must “state a claim to
relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007). We “disregard conclusory statements and look only to whether the
remaining, factual allegations plausibly suggest the defendant is liable.” Khalik
v. United Air Lines, 671 F.3d 1188, 1191 (10th Cir. 2012).
We first describe the legal framework under Colorado law for deciding
whether an advertising statement constitutes an actionable misrepresentation
under the Colorado Consumer Protection Act. Next, we review the legal
framework for claims of omission. Then, we analyze whether each of the four
statements was actionable for false or misleading misrepresentations and whether
Plaintiffs had standing to bring their claims under “Biologically Appropriate.”
Finally, we address Plaintiffs’ omission-based claims.
A. Legal Framework
In a case based on federal diversity jurisdiction, the law of the forum state
governs. Wankier v. Crown Equip. Corp., 353 F.3d 862, 866 (10th Cir. 2003).
We thus defer to the judgments of the Colorado Supreme Court and rely on
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decisions of the state’s intermediate appellate court for persuasive logic. Long v.
St. Paul Fire & Marine Ins. Co., 589 F.3d 1075, 1081 (10th Cir. 2009).
1. Affirmative Misrepresentations
The Colorado Consumer Protection Act, Colo. Rev. Stat. §§ 6-1-101, et
seq., “was enacted to provide prompt, economical, and readily available remedies
against consumer fraud.” Crowe v. Tull, 126 P.3d 196, 202 (Colo. 2006) (citation
and internal quotation marks omitted). For a plaintiff to recover on a claim under
the Colorado Consumer Protection Act, the plaintiff must prove by a
preponderance of the evidence that: (1) the defendant engaged in an unfair or
deceptive trade practice; (2) the challenged practice occurred in the course of the
defendant’s business; (3) the deceptive trade practice significantly impacted the
public as actual or potential consumers of the defendant’s goods; (4) the plaintiff
suffered injury in fact to a legally protected interest; and (5) the deceptive trade
practice caused actual damages or losses to the plaintiff. Garcia v. Medved
Chevrolet, Inc., 263 P.3d 92, 98 (Colo. 2011) (citation omitted).
Section 6-1-105 of the CCPA provides a non-exhaustive list of deceptive
trade practices that are actionable. Showpiece Homes Corp. v. Assurance Co. of
Am., 38 P.3d 47, 54 (Colo. 2001). Among the deceptive trade practices alleged
by Plaintiffs are that Champion: “knowingly or recklessly ma[de] a false
representation as to the characteristics, ingredients, uses, benefits, alterations, or
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quantities of goods [or] food[,]” Colo. Rev. Stat. § 6-1-105(e); “[r]epresent[ed]
that goods [or] food . . . are of a particular standard, quality, or grade . . . [when
Champion] kn[ew] or should [have] know[n] that they are of another,” Colo. Rev.
Stat. § 6-1-105(g); “[a]dvertis[ed] goods . . . with intent not to sell them as
advertised,” Colo. Rev. Stat. § 6-1-105(i); and “[f]ail[ed] to disclose material
information concerning goods, services, or property which information was
known at the time of an advertisement or sale if such failure to disclose such
information was intended to induce the consumer to enter into a transaction,”
Colo. Rev. Stat. § 6-1-105(u); Aplt. App. at 67–68 ¶ 221.
In applying these provisions, the Colorado Supreme Court has noted that,
at least with respect to Colo. Rev. Stat. § 6-1-105(e), “a deceptive trade practice”
under the CCPA “requires a false statement of fact that either induces the
recipient to act or has the capacity to deceive the recipient.” Rhino Linings USA,
Inc. v. Rocky Mt. Rhino Lining, Inc., 62 P.3d 142, 144 (Colo. 2003) (emphasis
added). In that case, the court applied its precedent in non-CCPA cases to
determine that “false representation[s],” as used in the CCPA, are
misrepresentations or false representations that have the capacity or tendency to
deceive. Id. at 148.
Under Colorado law, misrepresentation is defined as a “false or misleading
statement that induces the recipient to act or refrain from acting[.]” Id. at 147.
But misrepresentation is only actionable when “it is made ‘either with knowledge
of its untruth, or recklessly and willfully made without regard to its
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consequences, and with an intent to mislead and deceive the plaintiff.’” Id.
(citing Parks v. Bucy, 211 P. 638, 639 (Colo. 1922)). “Thus, a party may
establish a deceptive trade practice by proof that a defendant knowingly made a
misrepresentation that induces a party’s action or inaction[.]” Id. And in
addition, the alleged “representation of a fact must be . . . material[.]” Parks v.
Bucy, 211 P. at 640.
But “[m]ere statements of opinion such as puffing or praise of goods by
seller is no warranty.” Elliott v. Parr, 66 P.2d 819, 821 (Colo. 1937). Instead,
the term “puffery” is used to “characterize those vague generalities that no
reasonable person would rely on as assertions of particular facts.” Alpine Bank v.
Hubbell, 555 F.3d 1097, 1106 (10th Cir. 2009). These kinds of statements cannot
form the basis for any claim of misrepresentation of fact. “[G]eneral statements
of opinion typically constitute protected puffery, while specific representations of
fact can form the basis of a deceptive trade practice claim.” Giles v. Inflatable
Store, Inc., No. 07-CV-00401-PAB-KLM, 2009 WL 961469, at *3 (D. Colo.
Apr. 6, 2009) (footnote omitted). For example, in Shaw v. Gen. Motors Corp.,
727 P.2d 387 (Colo. App. 1986), a Colorado court concluded GM’s representation
that “Chevy’s business is providing the right truck for your business” was not an
affirmation of fact and was not actionable because it was “merely [GM]’s opinion
or commendation of [its] goods.” 727 P.2d at 391 (citation and internal quotation
marks omitted). Colorado courts have continued to make clear that common-law
doctrines inform the meaning and application of the CCPA.
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Similarly, in Park Rise Homeowners Ass’n, Inc. v. Res. Const. Co., 155
P.3d 427 (Colo. App. 2006), the Colorado Court of Appeals applied common-law
puffing doctrine in a CCPA case, concluding that the “alleged misrepresentations
were mere ‘puffing’ and, therefore, were not actionable under the CCPA.” 155
P.3d at 435. Analyzing those precedents, among others, the court “conclude[d]
that the CCPA does not, as a matter of law, make actionable a statement which
would otherwise be mere puffery.” Id. In applying this law, the court held that
representations that homes were of “quality construction” were mere puffery, and
thus not actionable under the CCPA. Id. at 436.
But if sellers make any “statements of value or quality” with the “purpose
of having them accepted as [a] fact,” then they must be “treated as
representations of fact.” Id. at 435 (citing Groves v. Chase, 151 P. 913, 915
(Colo. 1915) (internal quotation marks omitted)). To be sure, sellers “‘have the
right to exalt the value or quality of their own property to the highest point
credulity will bear,’ [but] any ‘statements of value or of quality may be made
with the purpose of having them accepted as [a] fact,’ and if so[,] should be
treated as ‘representations of fact.’” Id. at 435 (citing Groves v. Chase, 60 Colo.
at 162).
2. Omission-Based Claims
In addition to affirmative misrepresentations, Colorado law makes
actionable certain omissions of fact. In Colo. Rev. Stat. § 6-1-105(u), a
“[f]ail[ure] to disclose material information concerning goods . . . which
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information was known at the time of an advertisement or sale if such failure to
disclose such information was intended to induce the customer to enter into a
transaction” is an actionable deceptive trade practice. Colorado law also
prohibits fraudulent concealment. For a defendant to be liable for fraudulent
concealment, a “plaintiff must show that the defendant had a duty to disclose
material information.” In re Rumsey Land Co., LLC, 944 F.3d 1259, 1272 (10th
Cir. 2019) (citing Mallon Oil Co. v. Bowen/Edwards Assocs., Inc., 965 P.2d 105,
111 (Colo. 1998) (internal quotation marks omitted)). Whether there is a duty to
disclose a fact is a question of law. Poly Trucking, Inc. v. Concentra Health
Servs., Inc., 93 P.3d 561, 564 (Colo. App. 2004).
In determining whether there is a duty to disclose, Colorado courts have
looked to the Restatement (Second) of Torts § 551 for guidance. In re Rumsey
Land Co., LLC, 944 F.3d at 1272. The section provides that
[o]ne who fails to disclose to another a fact that he knows may justifiably induce the other to act or refrain from acting in a business transaction is subject to the same liability to the other as though he had represented the nonexistence of the matter that he has failed to disclose, if, but only if, he is under a duty to the other to exercise reasonable care to disclose the matter in question.
Restatement (Second) of Torts § 551(1) (Am. Law. Inst. 1977); see also Mallon
Oil, 965 P.2d at 111; Berger v. Sec. Pac. Info. Sys., Inc., 795 P.2d 1380, 1383
(Colo. App. 1990).
Section 551 of the Restatement and the Colorado cases interpreting it
demonstrate that in the absence of a special relationship or custom requiring
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disclosure, a party is not required to disclose material facts unless he has done
something to create a false impression.
B. Application
Applying Colorado law, we conclude none of the phrases supports claims
for deceptive advertising.
1. “Trusted Everywhere” and “Ingredients We Love [From] People We Trust”
The district court correctly found that the statements “Trusted Everywhere”
and “Ingredients We Love [From] People We Trust” are unactionable puffery.
No reasonable consumer would have concluded these “vague generalities” were
anything other than boilerplate statements of opinion.
Plaintiffs contend the district court erred in determining these statements
were puffery because Plaintiffs understood them to mean Champion had a
specific testing regimen and would not use certain ingredients, such as regrinds
(filler that comes from already cooked dog and cat foods that failed nutritional
testing). In particular, Plaintiffs took issue with Champion’s failure to
“consistently test its ingredients or finished [d]og [f]ood” for contamination.
Aplt. Br. at 36. In support of this argument, Plaintiffs cite Gen. Steel Domestic
Sales, LLC v. Chumley, 129 F. Supp. 3d 1158 (D. Colo. 2015), where the court
held actionable representations that a company had “zero unresolved customer
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issues” and a “history of 100% customer satisfaction.” 129 F. Supp. 3d at 1176–
77 (internal quotation marks omitted).
But Plaintiffs implausibly allege these vague packaging statements to mean
something they do not say. Champion does not make claims about its testing
regimens on the dog food packaging. Nor does Champion say on the packaging
that the dog food is free from filler. Instead, the statements about being “Trusted
Everywhere” and using “Ingredients We Love [From] People We Trust” are the
sort of subjective and “vague generalities that no reasonable person would rely on
as assertions of particular facts.” Alpine Bank, 555 F.3d at 1106.
Besides reading too much into the statements, Plaintiffs fail to demonstrate
the claims are falsifiable and thus statements of fact. In Chumley, the court
focused on whether the claims made were “specific, measurable claims that can
be evaluated as true or false.” 129 F. Supp. 3d at 1176–77. The court concluded
that the questions whether zero customer issues remained unresolved or there was
a history of 100% customer satisfaction did not elude quantification. Id. at 1177.
We agree that testing for falsifiability is helpful in determining whether a claim is
actionable as a misrepresentation of fact or mere puffery.
Here, Plaintiffs fail to plausibly allege the claims are falsifiable.
Champion did not claim its dog food was trusted by 100% of its customers. Nor
did Champion claim that everyone loves all the ingredients it uses. Instead,
Champion merely made vague and unproveable claims. Consequently, we
conclude these claims are protected puffery.
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2. “Fresh and Regional”
The district court concluded that the statement “Fresh Regional
Ingredients” was either not empirically verifiable or unactionable puffery.
The statement stands among other claims that the food was “the fullest
expression of [Champion’s] . . . fresh regional ingredients commitment,” that
“focus[ed] on local ingredients that are ethically raised by people [Champion]
know[s] and trust[s].” Aplt. App. at 203. The district court found that these
statements were “inherently subjective ideals” because no court or jury could
decide what amount of fresh or regional ingredients “would be enough” to
establish focus or commitment. Id. at 204.
We agree with the district court that the phrase can only be understood in
the context of the entire packaging of Champion’s dog food. But even if we take
the claim “Fresh and Regional” on its own, it too is a “vague generality” that
would not mislead a reasonable consumer who examined the entire package.
Although Plaintiffs allege that the dog food contained a “material amount” of
non-fresh and non-regional ingredients, they do not explain what amount of fresh
ingredients a reasonable consumer would expect or why Champion’s advertising
claims suggested that the food was entirely fresh or regional. In fact, the
ingredients listed on the Orijen and Acana packaging belie any understanding that
the food is entirely fresh by listing non-fresh and non-regional ingredients.
In one instructive case, the Colorado Court of Appeals explained that such
generic statements lack a “specific representation of fact subject to measure[.]”
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Park Rise, 155 P.3d at 436. They are typical and “obvious sales talk language”
that one can expect to see on any number of food packages. See id. (citation and
internal quotation marks omitted). The district court correctly concluded that
claims that ingredients are “fresh” and “regional” are not subject to measurement.
No reasonable consumer would find Champion’s packaging misleading merely
because the ingredients contained some percentage of non-fresh or non-regional
ingredients when, as here, the packaging disclosed that very fact.
3. “Biologically Appropriate”
The district court dismissed Plaintiffs’ claims under the phrase
“Biologically Appropriate” for lack of standing. The district court understood
Plaintiffs’ claim was based on its allegation that some of the food sold in 2018
contained beef tallow contaminated with pentobarbital. In analyzing the claim,
the court found that none of the plaintiffs actually purchased any dog food that
contained beef tallow as an ingredient after Champion purchased the
contaminated beef tallow, and so Plaintiffs lack standing to assert a claim, citing
Lujan v. Defs. of Wildlife, 504 U.S. 555 (1992) (plaintiffs must allege an actual
imminent injury to have standing).
We agree Plaintiffs could not have suffered any consumer protection injury
if they had not purchased dog food containing the objectionable ingredients. On
appeal, Plaintiffs contend the “district court erred in limiting its analysis of [the
Biologically Appropriate] claim to whether Plaintiffs purchased any of the [d]og
[f]ood that was confirmed to contain an ingredient with detectable levels of
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pentobarbital.” Aplt. Br. at 33. Instead, Plaintiffs argue “each bag of [d]og
[fo]od purchased by Plaintiffs” was affected because it “ha[d] a risk of, or [did]
contain, pentobarbital whe[n] it [was] advertised as Biologically Appropriate for
dogs.” Id. And at the district court, Plaintiffs argued that the dog food
“contained and/or had a material risk of containing pentobarbital for years.”
Aplt. App. at 165. But with a close reading, it is clear that Plaintiffs’ allegations
that the dog food was actually contaminated with pentobarbital was limited only
to dog food sold in 2018 because that is when Champion received notification it
had purchased contaminated beef tallow. Id. at 174. Plaintiffs failed to argue
that Champion sold pentobarbital-contaminated dog food before Champion
received the contaminated 2018 batch of beef tallow, and so they failed to allege
they purchased any contaminated dog food. Instead, Plaintiffs argued that the
dog food they purchased before 2018 was at risk of contamination. But arguing
that they purchased dog food that was at risk of contamination—unlike arguing
that they purchased dog food that was contaminated—is insufficient for standing
because an alleged injury cannot be “too speculative for Article III purposes.”
Lujan, 504 U.S. at 564 n.2.
But putting aside the pentobarbital claim, we do not agree that Plaintiffs
lacked standing to bring a false advertising claim based on the “Biologically
Appropriate” phrase more generally. Plaintiffs’ second amended complaint
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alleges other reasons why Champion’s packaging claim that its dog food was
“Biologically Appropriate” was misleading. 2
Even though Plaintiffs have standing to challenge this statement, no
reasonable consumer would have concluded this general statement of quality was
a material misstatement of fact. As the packaging explains, “Biologically
Appropriate” means that the dog food “mirror[s] the richness, freshness, and
variety” of a dog’s natural prey, and that the dog food is “protein rich and
carbohydrate limited.” Aplt. App. at 136. No reasonable consumer would
interpret this phrase to establish the inclusion of a specific amount of ingredients
or the exclusion of other ingredients. Like the other packaging statements, the
phrase is “not a specific representation of fact subject to measure or calibration.”
Park Rise, 155 P.3d at 436. The only conclusion that a reasonable consumer
could draw from a package that claimed the dog food was “Biologically
Appropriate” is that it was fit for dogs to consume. Although Plaintiffs allege
that Champion’s dog food was not fit for dog consumption, they fail to plausibly
allege what level of content of heavy metals in the dog food would render it unfit
2 Plaintiffs allege in their complaint that by using the phrase “Biologically Appropriate,” Champion misrepresented that the dog food contained only natural, nourishing ingredients [Aplt. App. at 27 ¶ 36]; promised specific ratios of meat and fish ingredients [Aplt. App. at 27 ¶ 37]; misled consumers because Champion “failed to prevent” exceeding levels of heavy metals than those found in fresh ingredients [Aplt. App. at 38 ¶ 70]; suggested no use of regrinds that were twice cooked and had no nutritional value [Aplt. App. at 41 ¶ 90]; and obscured the amount of fresh, regional, and “Biologically Appropriate” ingredients they used [Aplt. App. at 47 ¶ 129]. See Aplt. App. at 27–44.
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for consumption by dogs. And Plaintiffs do not allege that the ingredients did not
approximate what a dog may find in a natural environment or that the dog food
caused any actual harm to their pets. 3 Plaintiffs’ complaint thus fails to allege
Champion’s “Biologically Appropriate” advertising claim was false or
misleading.
* * *
In sum, Plaintiffs have not plausibly alleged a false advertising claim based
on Champion’s Acana and Orijen packaging.
C. Omission
The district court dismissed Plaintiffs’ omission-based claims because it
concluded the complaint contained no actionable claims.
In their complaint, Plaintiffs contended Champion omitted information
about the “[r]isk of pentobarbital,” “[r]isk of inclusion of regrinds with
pentobarbital,” “[i]nclusion of [r]egrinds,” “[i]nclusion of nondisclosed non-
regional ingredients,” and “[i]nclusion of other non-fresh ingredients,” and that
3 The Plaintiffs allege that Champion’s dog food contains some amount of “regrinds” and “heavy metals.” But Plaintiffs failed to allege what level of heavy metals content in a dog food formula would cause injury to dogs or render the dog food not biologically appropriate. We therefore cannot credit Plaintiffs’ argument that inclusion of some heavy metals—which are naturally occurring in certain ingredients, such as fish—renders misleading the advertising of the dog food as biologically appropriate. And Plaintiffs fail to demonstrate how the inclusion of some filler makes the dog food as a whole biologically inappropriate.
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such information was omitted “to induce Plaintiffs and the members of the
Classes to purchase” the dog food.4 Aplt. App. at 77 ¶¶ 272, 273.
Plaintiffs press two omission claims on appeal: one based on the CCPA and
the other on fraudulent concealment. We find that Plaintiffs fail on their CCPA
omission claim through forfeiture by failure to argue the claim at the district
court. See Ave. Capital Mgmt. II, L.P. v. Schaden, 843 F.3d 876, 885 (10th Cir.
2016) (“An appellant forfeits an argument by failing to preserve it in [the] district
court.”). Although Plaintiffs made the claim in their complaint, Aplt. App. at 68
¶ 221(d), they failed to press the argument in their brief opposing the motion to
dismiss, Aplt. App. at 176–79. In the omission portion of their brief opposing the
motion to dismiss, Plaintiffs argued Champion “fraudulently concealed material
facts,” listed some of the elements for the claim, and then fleshed out the
fraudulent concealment argument. Aplt. App. at 176–79. But Plaintiffs failed to
make a separate CCPA omission claim. At most, Plaintiffs alluded to the
separate CCPA claim by arguing that they “alleged facts sufficient to support
their omissions claims.” Id. at 179 (emphasis added). But that mere allusion to a
separate CCPA claim is insufficient to preserve the argument before this court.
See In re Rumsey Land Company, LLC, 944 F.3d 1259, 1271 (10th Cir. 2019)
4 As we noted previously, Plaintiffs lack standing for any claims against Champion for the inclusion of pentobarbital because they do not allege they ever purchased the contaminated dog foods. Consequently, Plaintiffs cannot allege a claim for Champion’s omission of notice that certain dog foods contained pentobarbital.
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(“‘Fleeting references’ to an argument are also insufficient [to preserve it for
appeal].”) (quoting Telecomms., Inc. v. Comm’r, 104 F.3d 1229, 1233–34 (10th
Cir. 1997)).
On the fraudulent concealment claim, Plaintiffs argue Champion had a duty
to disclose information about the inclusion of heavy metals, non-fresh
ingredients, and regrinds. Their argument is predicated on “Champion h[olding]
itself out to be a manufacturer of ‘premium’ and ‘high quality’ dog food” and
touting its dog food as “Biologically Appropriate and comprised of Fresh and
Regionally sourced ingredients.” Aplt. Br. at 40. Plaintiffs contend the inclusion
of certain ingredients makes those positive claims misleading. The problem with
this argument is that it ignores that these self-promoting claims are not statements
of fact because they are still puffery. Puffery is not transformed into an
actionable claim because the Plaintiffs object to some of the ingredients in the
dog food. Nor do Plaintiffs allege any plausible baseline to compare Champion’s
ingredients against some ideal.
Consequently, we conclude the district court properly dismissed the
omission-based claims.
IV. Conclusion
For these reasons, we AFFIRM the district court’s dismissal of Plaintiffs’
complaint.