As we have previously blogged about, in July 2020, the Eastern District of Wisconsin granted summary judgment in favor of Champion Petfoods (“Champion”) in a lawsuit asserting, among other things, that Champion had deceived consumers by labeling pet food products as “biologically appropriate,” even where they contained Bisphenol-A (BPA). The district court concluded that the presence of non-harmful trace amounts of BPA did not constitute deceptive advertising.

The plaintiff appealed the decision in November of 2020, arguing that the lower court had inappropriately decided or ignored “numerous disputed issues of material fact and evidence . . . that should have been presented to and weighed by a jury.” Specifically, addressing the BPA-related claims, the plaintiff argued that, contrary to the lower court’s suggestion, it was irrelevant that BPA was unintentionally added, and that the lower court incorrectly considered the potential harm to the defendant or industry if liability was found. Plaintiff further argued that the lower court had ignored the evidence that he had presented demonstrating that Champion’s dog food contained nearly twice as much BPA as other tested dog food products and that BPA had been linked to various health issues.

Most recently on April 1, 2021, a pair of 7^th Circuit judges expressed skepticism regarding plaintiff’s claims and questioned how plaintiff had demonstrated that BPA was present in an amount that could render the phrase “biologically appropriate” deceptive to a reasonable consumer.

Plaintiff’s position ignores the adage and basic toxicological principle that “the dose makes the poison.” And with little evidence apart from his own testimony that a reasonable consumer would be deceived and no evidence that the pet food contains BPA at harmful levels, it appears very likely that the lower court’s ruling will be upheld.