10th Circuit asked to bite into natural dog food feud

DENVER (CN) — Boutique pet food company KetoNatural asked the 10th Circuit Court of Appeals on Thursday to revive its false advertising suit against Hill’s Pet Nutrition over publishing misleading claims connecting competing brands to heart disease in dogs to tank sales.

“This case concerns an extensive campaign of commercial disinformation,” argued attorney Thomas Burt on behalf of Utah-based KetoNatural. “If the court affirms, your honor, it will have both public policy consequences and judicial consequences.”

In July 2018, the U.S. Food and Drug Administration published a report warning pet owners about research connecting dog heart disease, canine dilated cardiomyopathy, to certain pet foods containing “peas, lentils, other legume seeds, or potatoes as main ingredients.”

When Kansas-based company Hill’s Pet Nutrition repeated the claims on its own website, KetoNatural filed a class action in February 2024, claiming Hill’s used the research to attack competitors selling everything from meat-based diets to vegan food.

Senior U.S. District Judge Kathryn Vratil granted Hill’s motion to dismiss in November 2024. The George H. W. Bush appointee found Hill’s statements did not amount to commercial speech. KetoNatural appealed.

U.S. Circuit Judge Carolyn McHugh asked whether either Hill’s or the scientific studies referenced targeted particular brands of dog food. Burt countered that the speaker was more important than any names dropped.

“Does it matter who the speaker is if you don’t have a specific reference to a specific product?” asked McHugh, a Barack Obama appointee.

Burt agreed, pointing to speech that stemmed from one competitor against another.

“When the speaker is a direct competitor, it is extremely compelling,” argued Burt, who practices with Wolf Haldenstein in New York.

On behalf of Hill’s, attorney Stanley Panikowski urged the court to affirm dismissal.

McHugh pushed Panikowski on Hill’s website articles that summarized the scientific literature alongside links to the company’s products.

“That looks like an advertisement to me,” she said.

Panikowski countered that providing links to commercial speech couldn’t automatically constitute commercial speech itself.

“If the commercial speech doctrine were to be construed so the mere fact that later on the page you have hyperlinks to products then you would simply be converting anyway a for-public entity communicates with the public into commercial speech,” argued Panikowski, who practices with San Diego firm DLA Piper.

George W. Bush-appointed U.S. Circuit Judge Timothy Tymkovich rounded out the panel with Obama-appointed U.S. Circuit Judge Gregory Phillips. The court did not indicate when or how it would decide the case.