Last week, Judge Karas denied in part a motion to dismiss a putative class action against Nestle Purina, maker of the “Beggin’ Strips” line of dog treats.  The suit, on behalf of New York consumers who purchased the treats, alleged that Nestle Purina’s advertisements created the impression that bacon was a key ingredient in the treats, while in reality in was only a minor ingredient.  Judge Karas declined to dismiss the case as a matter of law at this stage, as he could not say as a matter of law that no reasonable consumer would believe that the treats were “predominantly made out of real pork bacon” based on the allegations in the complaint.

Judge Karas also addressed whether the class members had suffered an injury sufficient to create standing:

With respect to the Products’ packaging, Defendant argues that any conclusion that bacon was the primary ingredient must have been belied by the ingredient list that Plaintiff read, his care in selecting his dog food, and the fact that the packaging for the Beggin’ Strips Bacon & Cheese Flavors Product he purchased “includes a block of cheddar and a whimsical flavor.” . . . . Taken as true, [Plaintiff’s] statements compel the conclusion that, Defendant’s incredulity notwithstanding, Plaintiff somehow gleaned from Defendant’s packaging and advertisements that the products contained bacon as a “primary ingredient.”  Likewise, with respect to the shape and smell of the Products themselves, the Complaint is clear that “Plaintiff purchased several bags of [Defendant’s] dog treat [P]roducts per year,” and, again, that he would not have purchased the Products had he known the truth. Even if these allegations do not explicitly assert that the appearance of the strips directly impelled Plaintiff to continue his purchases, they do, at a minimum, insinuate as much and evidently did not disabuse Plaintiff of his view that bacon was the primary ingredient. If the courts were to demand, as a condition of exercising subject matter jurisdiction, that a plaintiff specifically tick off each allegedly deceptive attribute as a cause of his purchase, the Court struggles to understand how it could then also claim to apply the same liberal standard for dismissal as under Rule 12(b)(6).

Judge Karas granted the motion as to claims based on Nestle Purina’s products website, finding that the sole misleading statement alleged on the website (“Made with real bacon”) was true and therefore could not be misleading.