1 2 2

- 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 6 th day of June , two thousand twenty

- three.
PRESENT: ROSEMARY S. POOLER , BARRINGTON D. PARKER, ALISON J. NATHAN, Circuit Judges.

___________________________ __________ K

ATHLEEN P ARADOWSKI , Plaintiff

- Appellant , R

ACHEL C OLANGELO , individually and on behalf of a class of similarly situated individuals, Plaintiff ,

v. 22

- 962

- cv C HAMPION P ETFOODS USA, I NC

. & C HAMPION P ETFOODS LP , Defendant s -

Appellee s .

_____________________________________
FOR PLAINTIFF

- APPELLANT: R EBECCA A. P ETERSON ( Robert K. Shelquist , on the brief ), Lockridge Grindal Nauen P.L.L.P. , Minneapolis ,2 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 DEFENDANT S

- APPELLEE S : L INDA T. C OBERLY , 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, “Defendan ts” or “ Champion ” ). On appeal, Paradowski argues that the district court improperly dismissed her New York General Business Law § 349 claim alle ging 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 “ B iologically A ppropriate” 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 nature3 (albeit within the limitations of dry kibble form).” A pp’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 w hite
p aper on h eavy m etals that disclosed the average levels of heavy metals in its products in comparison to known safety limits for pets. The white paper reported that t he levels of heavy metals in its products were all within the acceptable ranges based on guidelines publi shed 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 a ga inst 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. A t various times from 2016

– 18, s he purchased two of Champion’s products

— ACANA Regional Meadowlan ds and ACANA Heritage Free

- Run Poultry. Her second amended complaint allege d , 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 “ contain ed 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 maintain ed that she would not have purchased Champion’s product s at their retail price s if she had known that the y contained heavy metals. In respon se, Champion argue d that heavy metals are widely known to be naturally occurring in th e environment and at safe levels in many of the foods people ( and dogs ) eat.4 Champion note s 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 provide d uncontroverted evidence that “nearly all pet food contains measurable quantities of heavy metals

. ” S ee 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 co ncluded 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 h igh 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

. S he 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 , 81 8 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 d ispute 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)

.5 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 situatio n. ” 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

.6 As a preliminary matter, contrary to Plaintiff ’s argument, the district court did not conflat e the legal standard for a common - law fraud

- by

- omission claim with the standard governing § 349 omissions

- based claim s
. 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 me an 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

. T his 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 , s ee 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 d isclose d that its products contained

— or had a material risk of containing

— any amount of heavy metals

.7 The fact that Champion’s pet food s contained heavy metals was information reasonably obtainable to the Plaintiff

. See i d. 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

. B oth AC ANA Heritage Free

- Run Poultry and ACANA Regionals Meadowland listed fish and fish

- based ingredients on its packaging , and p ublicly 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 cou ld 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