Rydman v. Champion PetFoods U.S.

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HOLLY RYDMAN, individually and on behalf of a class of similarly situated individuals, Plaintiff, v. CHAMPION PETFOODS USA, INC., et al., Defendants.

No. C18-1578 TSZ

United States District Court, W.D. Washington, Seattle

May 17, 2023

ORDER

THOMAS S. ZILLY, UNITED STATES DISTRICT JUDGE

THIS MATTER comes before the Court on Defendants' motion for summary judgment, docket no. 109, and Plaintiff's motion for class certification, docket no. 101. Having reviewed all papers filed in support of, and in opposition to, the motions, the Court enters the following Order.

Background

Plaintiff Holly Rydman, a Washington resident, representing a putative class of similarly situated individuals, claims that she was misled by statements and omissions concerning dog food produced by defendants Champion Petfoods USA, Inc. and Champion Petfoods LP (together, “Champion”). In her Second Amended Complaint (“SAC”), docket no. 46, Plaintiff alleges that the dog food she purchased “contained and/or had a material risk of containing non-conforming ingredients and contaminants, such as: (1) Heavy Metals; (2) non-fresh ingredients; [and] (3) non-regional ingredients.” SAC ¶ 12. As a result, Plaintiff contends the following statements found on Champion's packaging were misleading (1) “Biologically Appropriate”; and (2) “Fresh Regional Ingredients.” Id. ¶ 11.^[1]

Plaintiff purchased Champion dog food between approximately December 2014 and February 2018 from a local Washington pet store. SAC ¶ 8; Resp. to Interrog. No. 3, Ex. 4 to Coulson Decl (docket no. 110-4); Rydman Dep. at 10:17-19 & 45:6-11 Ex. 5 to Coulson Decl. (docket no. 110-5) [hereinafter “Pl.'s Dep.”]. Plaintiff purchased the following Champion dog food diets: ORIJEN Six Fish, ACANA Singles Lamb & Apple, ACANA Singles Duck & Pear ACANA Singles Pork & Squash, ACANA Regionals Grasslands, ACANA Regionals Meadowland, ACANA Regionals Wild Atlantic, ACANA Heritage Red Meat, ACANA Heritage Free-Run Poultry, and ACANA Heritage Freshwater Fish (collectively, the “Dog Food”). See Pl.'s Dep. at 47:3-17; Pl.'s Dep. at Ex. 7. Plaintiff makes no allegation that the consumption of Champion's Dog Food by Plaintiff's dogs resulted in illness or harm. See SAC ¶¶ 26-235; see also Poppenga Report at 39, Ex. 6 to Coulson Decl. (docket no. 110-6).

A. Statements on Champion's Packaging

1. “Biologically Appropriate”

The Dog Food packaging stated that the diet was “Biologically Appropriate” and displayed the following labels:

(Image Omitted)

See, e.g., Exs. A & B to Ogbonna Decl. (docket nos. 111-1 & 111-2). Plaintiff understood the phrase “Biologically Appropriate” to mean that the Dog Food “should be consumed, [was] meant to [be] consume[d by dogs], [was] safe for [dogs] to consume,” and was “best for the dog to eat.” Pl.'s Dep. at 70:17-22, 89:12-17. According to Champion, the Dog Food that Plaintiff purchased contained certain fresh ingredients, such as chicken, turkey, pork, eggs, fruits, and vegetables. Milam Decl. ¶ 13, Ex. 3 to Coulson Decl. (docket no. 110-3). Pursuant to the requirements of the Association of American Feed Control Officials (“AAFCO”), the back of every Champion package listed in a separate panel all ingredients of the dog food contained therein, in order of weight. Ogbonna Decl. ¶ 42 (docket no. 111). Plaintiff has testified that she read the ingredient panels before purchasing various packages of the Dog Food. Pl.'s Dep. at 91:2-14, 104:1-3, & 110:810.

2. “Fresh Regional Ingredients”

The front of every Dog Food bag at issue (with the exception of the three 2018 ACANA Singles bags) included a snowflake-shaped icon containing the letters “FD,” which is accompanied by the phrase “freeze-dried.” Exs. A-M, O, Q, & S-U to Ogbanna Decl. (docket nos. 111-1 - 111-13, 111-15, 111-17, & 111-19 - 111-21). Many bags at issue also stated how many, and which, ingredients were delivered either “fresh or raw.” See id. at Exs. D, F, O, Q, & S-U. For example, the packages included labels, such as

(Image Omitted)

See, e.g., id. at Exs. D & T. Prior to purchasing the Dog Food, Plaintiff read the “fresh or raw” statements on the packaging. Pl.'s Dep. at 93:19-24, 96:14-20, 98:12-17, 105:710, 108:10-16, & 116:17-23. Plaintiff testified that she reviewed ingredients prior to purchasing because she “wanted to know exactly what was in the product.” Id. at 91:811.

A panel on the back of each Dog Food bag disclosed the approximate amount, in pounds, of each “animal” ingredient as well as its form, i.e., fresh, raw, dried, freeze-dried, dehydrated, or oil. Exs. A-U to Ogbanna Decl. (docket nos. 111-1 - 111-21). The parties refer to this section of the packaging as “Meat Math.” For example, the “Meat Math” on the 2016-17 ACANA Heritage Free-Run Poultry package stated that “THIS 13 LB PACKAGE OF ACANA IS MADE WITH OVER 7 ¾ LB OF FREE-RUN POULTRY AND EGG INGREDIENTS[.] Half are FRESH or RAW and loaded with goodness and taste, and half are DRIED or OILS that provide a strong and natural source of animal proteins and fats.” Ex. A to Ogbanna Decl. (docket no. 111-1). As another example, the “Meat Math” panel on the 2017 ORIJEN Six Fish bag states, in part, “THIS 13 LB PACKAGE OF ORIJEN . . . IS MADE WITH OVER 11 LB OF FRESH, RAW OR DRIED FISH INGREDIENTS | 2/3 FRESH OR RAW + 1/3 DRIED.” Id. at Ex. T (docket no. 111-20). Plaintiff read the “Meat Math” panels on the packages prior to purchasing the Dog Food. Pl.'s Dep. at 93:19-24 & 108:10-16.

On each bag that Plaintiff purchased, Champion also indicated that the Dog Food contained “regional” ingredients:

(Image Omitted)

Ex. I to Ogbanna Decl. (docket no. 111-9); see also id. at Exs. A-U. The ingredients that Champion displayed, however, were not sourced entirely in a particular area of the United States, or even inside the United States. For example, Champion included the following labels on some of its packaging:

Grass-fed on Kentucky and New Zealand ranches, our fresh or raw lamb arrives in WholePrey™ ratios Ex. Q to Ogbanna Decl. (docket no. 111-17). Champion also told customers:

(Image Omitted)

Ex. S to Ogbanna Decl. (docket no. 111-19).

Before purchasing the ORIJEN Six Fish products, Plaintiff read the “New England Fish” statements, Pl.'s Dep. at 97:19-99:17, and during her deposition, she testified that New England did not fall within her understanding of the word “Regional,” id. at 101:24. Rather, her understanding of “Regional” meant “in and around where the food is produced,” namely Kentucky. Id. at 90:20-23. As a specific example, in the context of ORIJEN Six Fish, Plaintiff interpreted “regional wild-caught fish” as “fish that is caught in a region that is located nearby where [the dog food] is produced.” Id. at 90:20-23 & 99:25-100:3. Champion did not state on any of its packaging that 100% of each ingredient, that every ingredient, or that all ingredients, are regional, and it did not define the word “regional” with respect to a certain distance or location. See Exs. A-U to Ogbanna Decl. (docket nos. 111-1 - 111-21).

B. Heavy Metals

According to Champion's veterinary toxicology expert, Robert Poppenga, DVM, Ph.D., nearly all foods, whether for humans or pets, contain some levels of heavy metals, such as arsenic, cadmium, lead, and mercury. Poppenga Report at 8-20 & 40 (Opinion A) (docket no. 110-6). According to Dr. Poppenga, heavy metals in Champion's Dog Food are below the maximum tolerable limit set by the National Research Council of the National Academies of Sciences and the U.S. Food and Drug Administration. Id. at 1213, 25, 27, & 40 (Opinion F). Plaintiff does not challenge this opinion. In addition, Plaintiff has testified that she was aware that “seafood . . . could contain the heavy metal of mercury” and that “heavy metals are naturally found in foods.” Pl.'s Dep. at 68:18-25.

C. This Litigation

Plaintiff's theory of the case is not that the alleged inclusion of heavy metals, non-fresh ingredients, and/or non-regional ingredients harmed her dogs. Rather, Plaintiff contends that she paid a premium price for the Dog Food because of Champion's alleged misstatements and omissions. In support of her “overpayment” claim, Plaintiff offers expert testimony from Stefan Boedeker, an economist and statistician, and Bruce Silverman, a former marketing executive.^[2]

Boedeker conducted five consumer surveys: an “expectations” survey and four conjoint surveys. See Order at 5 (docket no. 144) [hereinafter the “Expert Order”]. The “expectations” survey attempted to measure what a “reasonable consumer” would think about the statements on the Dog Food. In her motion for class certification, plaintiff summarized Boedecker's “expectations” survey results as follows:

EXPECTATIONS SURVEY OF REASONABLE
            CONSUMERS
Orijen Diets
Acana Diets
From the â€œBiologically Appropriate† statements
            on the Dog Food, consumers would expect that:
            The dog food shown does not contain undisclosed heavy
            metals.
          
            82.8%
          
            84.3%
          
            The dog food shown only contains fresh ingredients,
            unless specifically stated otherwise on the packaging.
          
            89%
          
            83.9%
          
From the â€œFresh† statements on the Dog Food,
            consumers would expect that:
            The dog food shown contains only fresh ingredients
            unless specifically stated otherwise on the packaging.
          
            84.2%
          
            84.7%
          
            The dog food shown does not contain any undisclosed
            expired ingredients.
          
            79.4%
          
            88.4%
          
            The dog food shown does not contain any undisclosed
            reground

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