Fakin' the bacon?
Aug. 15, 2016
by Erica Shaffer
WHITE PLAINS, NY – A US District Court judge denied a motion by St. Louis-based Nestle Purina Petcare Company, Inc. to dismiss a lawsuit alleging the company deceptively marketed the company’s “Beggin’ Strips bacon flavor” pet treats as being made mostly out of bacon.
The plaintiff, Paul Kacocha of Duchess County, New York, said in court documents that Purina’s commercials promoting Beggin’ Strips suggest that the products “are made primarily of bacon and have bacon as their main ingredient, when, in actuality, the real main ingredients are “nonmeat fillers,” specifically, “ground wheat, corn gluten meal, wheat flour, water, ground yellow corn, sugar, glycerin, soybean meal, and hydrogenated corn syrup, plus at least five artificial preservatives.”
Meanwhile, bacon and bacon fat are present in small quantities and listed as the 10th and 12th items on the product ingredient list, according to the court filing.
Kacocha also argued that product packaging reinforces the impression that the pet treats are mostly made out of bacon. Kacocha said he paid premium prices for the pet treats that he would not have paid had he known the pet treats weren’t mostly made from bacon.
Lawyers for Nestle argued that statements made about the product were “mere puffery,” and no reasonable consumer would be misled into thinking the pet treats were primarily bacon. But US District Judge Kenneth Karas said it was too early to dismiss the case on those grounds.
“While “a cartoon dog salivating while reaching for a crispy piece of bacon” or a reference to “BacoNology,” … may be “playful and absurd,” that fact alone does not convert such representations into nonactionable puffery when, as here, “[l]iteralness is not what these commercials are about...” Therefore, the Court declines to dismiss Plaintiff’s ... claim at this stage of the case on the grounds that the allegedly misleading information is mere puffery,” Karas wrote in his opinion.
The case is Kacocha v. Nestle Purina Petcare Co, US District Court for the Southern District of New York, No. 15-5489.