Nutro pet food maker must face suit over 'limited' ingredients - Reuters

Pet food is seen for sale in a supermarket at The Mall of Cyprus in Nicosia, Cyprus, December 7, 2017. REUTERS/Peter Cziborra

• Summary
• Law firms

• Judge allows claims under Illinois law to proceed
• Plaintiffs say food contained chicken, soy, wheat

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(Reuters) - Mars Inc's pet food unit must face a proposed class action accusing it of misleading consumers about the contents of its "limited ingredient" Nutro dog foods, a federal judge has ruled.

U.S. District Judge Manish Shah in Chicago on Monday denied Mars Petcare U.S. Inc's motion to dismiss claims brought by Illinois residents under Illinois state law, though he dismissed claims brought by residents of other states for lack of jurisdiction.

Mars Petcare, its attorney Brett Doran of Greenberg Traurig and plaintiffs' attorney Greg Coleman of Milberg Coleman Bryson Phillips Grossman did not immediately respond to requests for comment.

The lawsuit, filed last year, concerns Mars Petcare's Nutro Limited Ingredient Diet products. Limited ingredient pet foods are often recommended by veterinarians and chosen by pet owners for their perceived health benefits for pets. Mars is a major player in the pet food market, and their other brands include Whiskas, Pedigree and Royal Canin.

The plaintiffs, who sought to represent a class of consumers who bought six Mars Petcare products, were six dog owners, three of whom bought Nutro dog food in Illinois, two in South Carolina and one in Wisconsin.

According to the lawsuit, the Nutro food was marketed as having 10 or fewer "key ingredients" per bag, and containing no chicken, wheat or soy. However, they allege that genetic testing revealed more than trace amounts of chicken, wheat and soy in the products they purchased.

The plaintiffs brought claims for breach of warranty, unjust enrichment and violation of their states' consumer protection laws.

Mars Petcare moved to dismiss on various grounds, including lack of personal jurisdiction as to the non-Illinois claims. It also sought to dismiss claims relating to two of the six products in the lawsuit on the grounds that none of the plaintiffs had bought them.

Shah agreed Monday that the claims related to products that the named plaintiffs had not actually bought must be dismissed for lack of standing. He also said that claims for future injunctive relief, as opposed to monetary damages, must be dismissed because the plaintiffs have not shown likelihood of future harm, since they allege they now know the products to be defective.

The judge also found that the purchases outside of Illinois lacked a sufficient connection to the district and must be dismissed.

The Illinois plaintiffs conceded their warranty claims because they failed to give Mars Petcare pre-suit notice and opportunity to cure, according to the opinion.

However, Shah rejected Mars Petcare's argument that the plaintiffs' remaining claims of unjust enrichment and violation of the Illinois Consumer Fraud and Deceptive Business Practices Act simply restated their warranty claims.

"Because plaintiffs allege that they paid a premium as compared to other dog foods that were available to them, and that the defendant's dog food was defective, the complaint alleges actual damages," he wrote.

The case is Bakopoulos v. Mars Petcare U.S. Inc, U.S. District Court, No. 20-cv-06841.

For plaintiffs: Greg Coleman of Milberg Coleman Bryson Phillips Grossman

For Mars Petcare: Brett Doran of Greenberg Traurig

Brendan Pierson

Brendan Pierson reports on product liability litigation and on all areas of health care law. He can be reached at brendan.pierson@thomsonreuters.com.

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Nutro pet food maker must face suit over 'limited' ingredients - Reuters
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