Commercial speech lawsuit to proceed against major Kansas pet food company

Hill’s is a major manufacturer of dog food containing grain as a key ingredient, but the company’s market share softened from 2014 to 2017 with the rise of grain-free competitors, including KetoNatural. In response, KetoNatural asserts, Hill’s worked with Hill’s partner veterinarians and nonprofits to elevate an unproven theory that grain-free formulations of dog food increased pets’ risk for heart disease.

Hill’s strategy, the lawsuit claims, included use of marketing and promotional materials, including a website, to spread statements that plaintiffs contend violated federal law. In addition, the lawsuit accused Hill’s of manipulating the U.S. Food and Drug Administration into opening an inquiry into potential risks of feeding grain-free food to canines.

The controversy alarmed consumers and helped Hill’s regain market share from 2018 to 2022 while KetoNatural says its sales suffered despite the FDA’s decision data didn’t establish a link between pet food products and instances of dilated cardiomyopathy.

The lower district court rejected KetoNatural’s claim in the lawsuit that Hill’s should be held accountable for false advertising and be liable for false statements of alleged co-conspirators. The district court concluded the challenged statements weren’t literally false and shouldn’t be considered commercial speech under federal statute.

In a decision in mid-July, the Court of Appeals disagreed with the lower court by finding KetoNatural plausibly alleged certain information on Hill’s website and in Hill’s veterinary education materials amounted to commercial speech and could be false. The appellate court agreed with the district court’s dismissal of the plaintiff’s allegations relative to veterinarians and nonprofits associated with Hill’s, because those statements shouldn’t be viewed as commercial speech.

“KetoNatural has plausibly alleged that some statements and links on Hill’s’ webpages are commercial speech,” Court of Appeals Chief Judge Timothy Tymkovich said in the opinion written on behalf of a three-judge panel. “KetoNatural has also plausibly alleged that these statements are literally false.”

The Court of Appeals also remanded to the district court a civil conspiracy claim brought by the plaintiffs. This piece of the lawsuit is connected to allegations Hill’s worked with a network of veterinary researchers funded by Hill’s to gain traction for the grain-free diet scare.