New York Court Halts Dog Food False Ad Suit

Advertising Law

A New York federal court threw out a false advertising class action asserting that Rachael Ray duped consumers by calling her line of dog food “natural,” ruling that the use of the word was not materially misleading to a reasonable consumer.

Markeith Parks filed the lawsuit in 2018, alleging that the Nutrish line of dog food was deceptively advertised as “natural” in violation of state law because it contains glyphosate, a synthetic ingredient.

The court granted the defendant’s first motion to dismiss in 2019, but granted Parks leave to amend. When he did—adding details about lab testing to demonstrate the presence of glyphosate—the defendant again moved to dismiss.

For the second time, U.S. District Court Judge Louis L. Stanton dismissed the lawsuit.

The testing revealed the presence of glyphosate at a level of 19.85 parts per billion, or an effective level of 0.04208, which constitutes 0.005 percent of the Food and Drug Administration’s (FDA) allowed tolerance level of 400 parts per million for glyphosate residue in animal feed—an insufficient amount to move the suit forward, the court said.

“The level of glyphosate in the tested products is negligible and significantly lower than the FDA’s limit, which supports a finding that the products’ glyphosate residue is not likely to affect consumer choice, and that labeling them ‘natural’ is not materially misleading to a reasonable consumer,” Judge Stanton wrote.

Parks argued that the amount of glyphosate was not relevant to materiality and that it was misleading for the defendant to label the product as “natural” if it contains any glyphosate, regardless of the amount.

But the court disagreed, referencing its first grant of the defendant’s motion to dismiss where it stated that “a reasonable consumer would not be so absolutist as to require that ‘natural’ means there is no glyphosate, even an accidental and innocuous amount, in the products.”

“Accordingly, Parks’ claims of deceptive business practices, false advertising and breach of express warranty are dismissed,” Judge Stanton concluded.

To read the memorandum and order in Parks v. Ainsworth Pet Nutrition, LLC, click here.

Why it matters: The court refused to adopt the plaintiff’s argument that any amount of glyphosate would render the defendant’s ad claims false and deceptive, instead holding that the presence of a negligible amount was not materially misleading to a reasonable consumer.

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