On June 30, 2021, the Seventh Circuit ruled that, while surveys or market research evidence is not always necessary for a plaintiff to survive summary judgment in a false advertising case, such evidence is necessary when materiality is disputed and the advertisements are not clearly misleading on their face. The court affirmed a grant of summary judgment in favor of Defendants Champion Petfoods USA Inc. and Champion Petfoods LP (“Champion”) because Plaintiff Scott Weaver, a Wisconsin resident who purchased Champion dog food, failed to produce sufficient evidence that any of Champion’s representations were false or misleading.

• Weaver asserted claims against Champion for (1) violation of the Wisconsin Deceptive Trade Practices Act; (2) fraud by omission; and (3) negligence. At issue were Champion’s various representations about its dog food quality, including representations that the food is “biologically appropriate,” made from fresh regional or local ingredients, and “never outsourced.”
• Weaver argued that both Champion’s ingredients and sources of its dog food rendered its packaging misleading. First, Weaver argued that Champion’s food was not “biologically appropriate” because there was a risk it contained Bisphenol A (“BPA”), a chemical used to make plastics and resins. Second, he argued that Champion’s food was not made solely from fresh ingredients, as it contained frozen ingredients, “regrinds” (previously manufactured food), “refreshed” ingredients (ingredients that Champion did not use on a given day and were sent back to the supplier for re-delivery), and ingredients past the 3-5 day window of freshness guaranteed by Champion’s suppliers. Finally, he argued that Champion did not source all its ingredients from areas close to its kitchens.
• Like the district court, the Seventh Circuit rejected each of his claims. First, as to Champion’s “biologically appropriate” representation, the Seventh Circuit rejected Weaver’s argument that food is not biologically appropriate if it contains any amount of BPA. The court pointed to uncontested evidence showing that the level of BPA purportedly in Champion’s food posed no risk of adverse health effects in dogs, and that both humans and animals were commonly exposed to BPA.
  • The court reasoned further that Weaver failed to provide evidence that the phrase “biologically appropriate” was likely to materially mislead a reasonable consumer into believing that the product was BPA‐free. The court stated that while “extrinsic evidence in the form of consumer surveys or market research” is not “always needed for a plaintiff to survive summary judgment . . . on a deceptive advertising claim,” “such evidence is necessary where the advertising is not clearly misleading on its face and materiality is in doubt.”
  • After determining that Champion’s representation that its food was “biologically appropriate” was not “clearly misleading on its face,” the court concluded Weaver’s sole reliance on his own testimony—without any supporting consumer surveys or market research—was insufficient to defeat summary judgment.
• Regarding Champion’s representations that its food is made with fresh and regional ingredients, the court found that the packaging was not misleading because the food contained at least some ingredients that were fresh and regionally sourced. Nor did Weaver’s reliance on his own testimony create a genuine dispute of fact—the court held that his testimony alone would not enable a reasonable jury to find that a significant portion of the general public would be misled in the way he claimed to be misled.
  • Notably, the court rejected Weaver’s reliance on Bell v. Publix Super Markets, Inc., 982 F.3d 468 (7th Cir. 2020), which we reported on previously here. Unlike in Bell, where plaintiffs alleged that they were misled by cheese products labeled as “100% Grated Parmesan Cheese,” Champion’s packaging did not represent that it was made with 100% fresh regional ingredients. More importantly, the court emphasized that unlike in Bell, which was decided at the motion to dismiss stage, “[s]ummary judgment is the proverbial put up or shut up moment in a lawsuit, when a party must show what evidence it has that would convince a trier of fact to accept its version of events.”
• With respect to Champion’s representations that its food is “never outsourced,” the court again held that Weaver—relying exclusively on his own testimony that he understood this to mean Champion sourced its ingredients from nearby kitchens—fell short of showing that this representation was misleading on its face when taken in context or that it would materially mislead a reasonable consumer.
• Finally, the court determined that Weaver’s fraud and negligence claims failed for largely the same reasons as his consumer protection claims.
• The Weaver decision underscores the strategic benefit of holding an opposing party to its burden of proof and also of potentially hiring a survey/marketing expert to show that falsity and materiality are in dispute and, if possible, too individualized to support class certification.
• The case is Weaver v. Champion Petfoods USA Inc., 3 F.4th 927 (7th Cir. 2021), and the opinion can be accessed here.