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22-962-cv

Colangelo v. Champion Petfoods USA, Inc.

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY 

ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF 

APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER 

IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN 

ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY 

ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. 

At a stated term of the United States Court of Appeals for the Second Circuit, held 

at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, 

on the 6th day of June, two thousand twenty-three.

PRESENT: ROSEMARY S. POOLER,

BARRINGTON D. PARKER,

ALISON J. NATHAN,

Circuit Judges.

_____________________________________

KATHLEEN PARADOWSKI,

Plaintiff-Appellant,

RACHEL COLANGELO, individually and on behalf of a 

class of similarly situated individuals,

Plaintiff,

v. 22-962-cv

CHAMPION PETFOODS USA, INC. & CHAMPION 

PETFOODS LP,

Defendants-Appellees.

_____________________________________

FOR PLAINTIFF-APPELLANT: REBECCA A. PETERSON

(Robert K. Shelquist, on the 

brief), Lockridge Grindal 

Nauen P.L.L.P., Minneapolis, 
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MN, (Daniel E. Gustafson, 

Gustafson Glueck, PLLC, 

Minneapolis, MN, Kevin A. 

Seeley, Robbins LLP, San 

Diego, CA, Kenneth A. 

Wexler, Wexler Boley & 

Elgersma LLP, Chicago, IL, 

on the brief)

FOR DEFENDANTS-APPELLEES: LINDA T. COBERLY, Winston 

& Strawn LLP, Chicago, IL

(David A. Coulson, Winston 

& Strawn LLP, Miami, FL, 

on the brief)

Appeal from a judgment of the United States District Court for the Northern District of 

New York (Kahn, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND 

DECREED that the judgment of the district court is AFFIRMED.

Plaintiff-Appellant Kathleen Paradowski appeals from the district court’s grant of 

summary judgment for Defendants-Appellees Champion Petfoods USA, Inc., and Champion 

Petfoods LP (collectively, “Defendants” or “Champion”). On appeal, Paradowski argues that the 

district court improperly dismissed her New York General Business Law § 349 claim alleging

that Champion failed to disclose the presence of heavy metals in two of its pet food formulas. 

We assume the parties’ familiarity with the underlying facts and the procedural history of the 

case, which we discuss only as necessary to explain our decision to affirm.

BACKGROUND

Champion is a manufacturer and seller of premium-priced dog food. It markets its 

products as “Biologically Appropriate” and states that it uses “animal-based proteins,” instead of 

grains or fillers, in an effort “to mirror how wolves or wild dogs would get nutrition in nature 
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(albeit within the limitations of dry kibble form).” App’x 258. In April 2017, a group called the 

Clean Label Project published a blog post that rated pet foods based on several factors, including 

heavy metal content, and gave one star out of five to Champion’s brands. Several Champion 

customers reached out to inquire about the post, and in May 2017, Champion released a white 

paper on heavy metals that disclosed the average levels of heavy metals in its products in 

comparison to known safety limits for pets. The white paper reported that the levels of heavy 

metals in its products were all within the acceptable ranges based on guidelines published by the 

National Research Council and the Food and Drug Administration (“FDA”) outlining maximum 

tolerable limits for arsenic, cadmium, lead, and mercury in dog foods.

Approximately one and a half years later, this putative class action was brought against 

Champion on behalf of New York purchasers of Champion dog food. Paradowski is the owner 

of two German Shepherds, and the sole remaining named plaintiff. At various times from 2016–

18, she purchased two of Champion’s products—ACANA Regional Meadowlands and ACANA 

Heritage Free-Run Poultry. Her second amended complaint alleged, inter alia, that Champion 

engaged in common-law fraud-by-omission and/or violated New York General Business Law § 

349 by failing to disclose that its recipes “contained and/or had a material risk of containing”

detectible amounts of heavy metals. App’x 60. Although the parties dispute the quantity of 

heavy metals present, they agree that the question of whether the products were safe is not at 

issue in this litigation. Plaintiff did not allege that Champion’s pet foods were unsafe or that they 

harmed her pets. Instead, she maintained that she would not have purchased Champion’s

products at their retail prices if she had known that they contained heavy metals.

In response, Champion argued that heavy metals are widely known to be naturally 

occurring in the environment and at safe levels in many of the foods people (and dogs) eat. 
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Champion notes that heavy metals are especially common in the fish and fish-derived products 

that are listed as ingredients in its ACANA Heritage Free-Run Poultry and ACANA Regionals 

Meadowland offerings. Champion also provided uncontroverted evidence that “nearly all pet 

food contains measurable quantities of heavy metals.” See Colangelo v. Champion Petfoods 

USA, Inc., No. 18-cv-1228, 2022 WL 991518 at *25 n.47 (N.D.N.Y. Mar. 31, 2022).

On March 31, 2022, the district court granted summary judgment in favor of Champion 

and dismissed all of Plaintiff’s claims. The court concluded that no reasonable jury could rule 

for the Plaintiff on either the heavy metal fraud-by-omission claim or the § 349 claim because 

“by ordinary diligence and attention, Plaintiff[] should have known that anything containing fish 

might also contain high concentrations of heavy metals.” Id. (quoting Simpson v. Champion 

Petfoods USA, Inc., 397 F. Supp. 3d 952, 972–73 (E.D. Ky. 2019)). 

Plaintiff timely appealed. She only challenges the district court’s dismissal of her § 349 

heavy metals claim.

STANDARD OF REVIEW

We review orders granting summary judgment de novo, “construing the evidence in the 

light most favorable to the party against which summary judgment was granted and drawing all 

reasonable inferences in [her] favor.” Harris v. Miller, 818 F.3d 49, 57 (2d Cir. 2016) (internal 

quotation marks omitted). Summary judgment is appropriate only if “there is no genuine dispute 

as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 

56(a). A material dispute exists if a reasonable jury could return a verdict for the nonmoving 

party, but not if “the evidence to support [her] case is so slight” that no rational factfinder could 

find in her favor. Brown v. Eli Lilly & Co., 654 F.3d 347, 358 (2d Cir. 2011) (internal quotation 

marks omitted).
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DISCUSSION

New York law prohibits “[d]eceptive acts or practices in the conduct of any business, 

trade or commerce or in the furnishing of any service.” N.Y. Gen. Bus. Law § 349. The 

requisite elements for a cause of action under § 349 are well established. The plaintiff must 

show that: “(1) the defendant’s conduct was consumer-oriented; (2) the defendant’s act or 

practice was deceptive or misleading in a material way; and (3) the plaintiff suffered injury as a 

result of the deception.” Himmelstein, McConnell, Gribben, Donoghue & Joseph, LLP v. 

Matthew Bender & Co., 171 N.E.3d 1192, 1197 (N.Y. 2021). When evaluating whether an act 

was deceptive or misleading, New York courts apply an objective standard, asking whether the 

representation or omission is “likely to mislead a reasonable consumer acting reasonably under 

the circumstances.” Stutman v. Chem. Bank, 731 N.E.2d 608, 611–12 (N.Y. 2000) (quoting 

Oswego Laborers’ Loc. 214 Pension Fund v. Marine Midland Bank, N.A., 647 N.E.2d 741, 745 

(N.Y. 1995)). A “reasonable consumer” includes those “who, in making purchases, do not stop 

to analyze but are governed by appearances and general impressions.” Guggenheimer v. 

Ginzburg, 372 N.E.2d 17, 19 (N.Y. 1977). 

“In the case of omissions in particular,” the New York Court of Appeals has cautioned 

that § 349 “surely does not require businesses to ascertain consumers’ individual needs and 

guarantee that each consumer has all relevant information specific to its situation.” Oswego, 647 

N.E.2d at 745. Accordingly, a plaintiff bringing an omission-based claim for § 349 liability must 

show that “the business alone possesses material information that is relevant to the consumer and 

fail[ed] to provide this information,” or that plaintiffs could not “reasonably have obtained the 

relevant information they now claim the [defendant] failed to provide.” Id.
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As a preliminary matter, contrary to Plaintiff’s argument, the district court did not 

conflate the legal standard for a common-law fraud-by-omission claim with the standard 

governing § 349 omissions-based claims. Although the district court’s order states that 

Plaintiff’s § 349 claim “fail[s] for the same reason as her claims for fraud by omission fail,” that 

does not mean that the court applied the same legal standard to both claims. Colangelo, 2022 

WL 991518 at *27. To the contrary, the order analyzed the § 349 and common-law fraud claims 

separately, identifying the correct legal standard for each. Compare id. at *25 (common-law 

fraud) with id. at *26 (§ 349). The district court concluded that no reasonable jury could find 

that the relevant omitted information was exclusively within Champion’s possession, or that a 

consumer could not reasonably obtain such information. This determination would defeat both 

the common-law fraud claim, which requires that the information be “peculiarly within the

defendant’s knowledge,” ACA Fin. Guar. Corp. v. Goldman, Sachs & Co., 32 N.E.3d 921, 922 

(N.Y. 2015) (cleaned up), and the § 349 claim, see Oswego, 647 N.E.2d at 745.

Upon review of the record, we agree that no reasonable jury could conclude that the 

omission at issue—that Champion’s pet foods contained or had a material risk of containing 

heavy metals—was solely within Champion’s possession. To start, it is worth clarifying that

Plaintiff has not pleaded an omissions claim based on the specific quantities of heavy metals

present in Champion’s products. If Plaintiff had claimed that Champion’s pet foods contained 

quantities of heavy metals in excess of safe thresholds, then that could be information that “the 

business alone” possessed. Id. However, Plaintiff’s position is that Champion should have

disclosed that its products contained—or had a material risk of containing—any amount of heavy 

metals. 
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The fact that Champion’s pet foods contained heavy metals was information reasonably 

obtainable to the Plaintiff. See id. The undisputed record evidence shows that “nearly all pet 

food contains measurable quantities of heavy metals” because measurable quantities of heavy 

metals occur naturally in the environment and are prevalent in a wide variety of food products. 

Both ACANA Heritage Free-Run Poultry and ACANA Regionals Meadowland listed fish and 

fish-based ingredients on its packaging, and publicly available studies demonstrate that seafood

typically contains high concentrations of heavy metals. See App’x 111–14 (listing “catfish meal” 

as a prominent ingredient in both ACANA products); App’x 366, 376, 427, 452 (listing average 

quantities of arsenic, cadmium, lead, and mercury in catfish). Additionally, since at least 2005 

regulators have published guidelines regarding the acceptable concentrations of heavy metals in 

dog foods, which demonstrates that the public has been aware of the occurrence (or the risk) of 

this phenomenon for some time. In sum, the factual record establishes that a reasonable 

consumer could have discovered that Champion’s pet foods had a material risk of containing 

some measurable amount of heavy metals. Because Plaintiff has failed to show that “the 

business alone possesses” this information, its § 349 claim fails. See Oswego, 647 N.E.2d at 745.

Lastly, we acknowledge the importance of consumer labeling, especially as it relates to 

food for both humans and pets alike. However, it is not within the province of the courts to 

decide what information must be disclosed on consumer packaging. That issue should be for 

Congress or a federal agency such as the FDA to determine.

We have considered Plaintiff-Appellant’s remaining arguments and conclude that they are 

without merit. The judgment of the District Court is AFFIRMED.

FOR THE COURT:

Catherine O’Hagan Wolfe, Clerk of Court