KetoNatural Pet Foods v. Hill's Pet Nutrition
The Tenth Circuit reversed in part and affirmed in part the district court's Rule 12(b)(6) dismissal of KetoNatural Pet Foods' § 43(a)(1)(B) false advertising claim against Hill's Pet Nutrition. KetoNatural, a grain-free pet food manufacturer, alleged that Hill's—a dominant grain-containing pet food company—orchestrated a false advertising campaign claiming that "BEG" diets (boutique, exotic-ingredient, or grain-free pet foods) were linked to canine dilated cardiomyopathy. The challenged statements appeared in Hill's website content and hyperlinks to veterinarian blogs, Hill's password-protected veterinary education materials, and statements by allegedly conspiring veterinarians and nonprofits funded by Hill's. The Tenth Circuit held that KetoNatural plausibly alleged that Hill's own website statements and veterinary education materials constituted literally false commercial speech under the establishment claim doctrine, because the statements implicitly relied on scientific studies that did not establish the claimed BEG-disease correlation. The court affirmed dismissal as to statements by the veterinarians and nonprofits, holding those were not commercial speech attributable to Hill's because they lacked the requisite connection to propose or promote a commercial transaction in Hill's products, notwithstanding the alleged conspiracy.
The opinion refines Tenth Circuit doctrine on what constitutes "commercial advertising or promotion" under § 43(a)(1)(B) by applying Bolger's three-factor framework (advertisement, specific product reference, economic motivation) holistically to product disparagement. The court held that statements need not propose a transaction in a specific SKU; brand-level promotion suffices when the defendant dominates its market segment, and that economic motivation to recapture lost market share can transform ostensibly educational content—including scientific claims and veterinary continuing education materials—into commercial speech when strategically disseminated to influence purchasing decisions. Critically, the court adopted the establishment claim doctrine from the Second Circuit's Castrol decision, holding that statements claiming scientific support are literally false if the underlying studies "do not establish the proposition for which they were cited" or are "not sufficiently reliable to permit [the] conclusion" asserted. This allows plaintiffs to prove literal falsity by demonstrating the absence of valid supporting science, rather than affirmatively proving the negative proposition, a significant evidentiary accommodation in scientific-claim false advertising cases.