2nd Circ. Affirms Toss Of Heavy Metal Pet Food Case 

• In May 2017, following a poor rating of its premium-priced dog food by the Clean Label Project, Champion Petfoods released a white paper disclosing the levels of heavy metals in its products and reporting these were well within ranges for arsenic, cadmium, lead, and mercury deemed acceptable for dog foods by the National Research Council and FDA.  Then on October 16, 2018, a proposed class action lawsuit filed in New York federal court alleged that Champion Petfoods’ Acana and Orijen pet foods contain heavy metals known to pose health risks to humans and animals even though the foods are advertised as fit for humans.  The plaintiff did not allege that Champion’s pet foods were unsafe or harmed her pets but maintained that she would not have purchased Champion’s products at their retail prices if she had known that they contained heavy metals.  The district court granted summary judgment for Champion in dismissing all heavy metal fraud-by-omission claims on March 31, 2022.

• On June 6, 2023, the Second Circuit upheld the trial court’s judgment in an order stating, “the factual record establishes that a reasonable consumer could have discovered that Champion’s pet foods had a material risk of containing some measurable amount of heavy metals” and the plaintiff failed to show that “the business alone possesses” this information, as required under the law.  Further, while acknowledging “the importance of consumer labeling, especially as it relates to food for both humans and pets alike,” the appeals court said that it is up to Congress or a federal agency such as FDA to determine what is disclosed on food labeling. 

• The appeals court did state that if the plaintiff had claimed that Champion’s pet foods contained quantities of heavy metals in excess of safe thresholds, then that could be information that “the business alone” possessed.  This underscores a significant obstacle in other heavy metals litigation where plaintiffs have been unable to demonstrate that the unavoidable presence of heavy metals in low amounts renders the food inedible or unsafe to consume.