‘Stay,’ NJ Court Orders Dog Food Manufacturer Facing False Ad Suit

Advertising Law

A dog food company served its customers a mixed bag of puffery and actionable claims, a New Jersey federal court determined when dismissing parts of a false advertising class while letting others move forward.

IMS Trading manufactures, markets and advertises dog treats, including a Chinese-made duck jerky dog treat that formed the basis of Marie Dopico’s class action. She alleged her dog became ill after eating the treats, and sued IMS Trading for false advertising and breach of warranty.

She pointed to several representations on the product packaging as well as claims made on the defendant’s website. The packaging included statements such as “No artificial colors,” “No artificial additives,” “No artificial fillers,” “No by-products,” “We guarantee our product 100%” and “Inspected and independently tested.” On the website, IMS Trading told consumers, “That’s why we go to great lengths to maintain the quality and consistency of our products,” and stated that it “[o]ffer[s] the best treats for your pet.”

IMS Trading moved to dismiss the putative class action. The statements were simply affirmations of the value of the goods or statements that purported to be the seller’s opinion of the treats, the defendant contended.

Dopico countered that the claims were actionable because they were statements of fact rather than opinions or amorphous boasts.

U.S. District Judge Brian R. Martinotti split the difference. “The Court finds Plaintiffs have adequately alleged a breach of express warranty claim as to labeling on the dog treats, but not as to the representations on the website,” he wrote.

“When analyzing the packaging label as a whole ‘it could fairly be understood … to constitute an affirmation or representation that the [product] possesse[s] a certain quality or capacity relating to future performance,’” the court said. “The phrase ‘We guarantee our product 100%’ coupled with ‘Inspected and independently tested’ could be ‘fairly’ understood to mean the product was tested and contained: (1) ‘No artificial colors’; (2) ‘No artificial additives’; (3) ‘No artificial fillers’; (4) ‘No by-products’; and (5) that ‘the ingredients were duck breast filets, vegetable glycerin, soy protein, isolate, salt.’”

However, the court reached the opposite conclusion with regard to the website statements. “The website statements are more akin to puffery and ‘affirmation[s] merely of the value of the goods or [] statement[s] purporting to be merely the seller’s opinion or commendation of the goods,’” the court wrote. Courts have established that words such as “great” and “best” are mere puffery, Judge Martinotti added, and “[b]oth words were used in the phrases quoted from Defendants’ website.”

Accordingly, the court granted the defendant’s motion to dismiss with regard to the plaintiff’s claims based on the website statements and denied on the claims based on product packaging.

To read the opinion in Dopico v. IMS Trading Corp., click here.

Why it matters: The court’s opinion has something for both sides. While the plaintiff can pursue her claims based on the statements made on product packaging, which the court found could be understood to constitute facts rather than opinions, the court said the website representations were not actionable. The statements contained terms such as “great” and “best,” the court noted, typically found to be puffery.



pursuant to New York DR 2-101(f)

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