Renfro v. Champion Petfoods USA

Appellate Case: 20-1274 Document: 010110645297 Date Filed: 02/15/2022 Page: 1
FILED
United States Court of Appeals
PUBLISH Tenth Circuit

UNITED STATES COURT OF APPEALS February 15, 2022

TENTH CIRCUIT Christopher M. Wolpert
Clerk of Court

CAMMEO RENFRO; BARB
McGRAW; DESIREE DEMPSTER,

Plaintiffs - Appellants,
v. No. 20-1274
CHAMPION PETFOODS USA, INC;
CHAMPION PETFOODS LP,

Defendants - Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
(D.C. NO. 1:18-CV-02756-DDD-MEH)

Kenneth Wexler (Robert K. Shelquist and Rebecca A. Peterson, Lockridge
Grindal Nauen P.L.L.P., Minneapolis, Minnesota, Daniel E. Gustafson and Raina
C. Borrelli, Gustafson Gluek PLLC, Minneapolis, Minnesota, Kevin A. Seely and
Steven M. McKany, Robbins LLP, San Diego, California, Joseph DePalma and
Susana Cruz Hodge, Lite Depalma Greenberg, LLC, Newark, New Jersey, and
Charles LaDuca and Katherine Van Dyck, Cuneo Gilbert & LaDuca, LLP,
Washington, D.C., with him on the briefs), Wexler Wallace LLP, Chicago,
Illinois, for Appellants.

Dominic Draye (David A. Coulson, Greenberg Traurig LLP, Miami, Florida, and
John K. Crisham, Greenberg Traurig LLP, Denver, Colorado, with him on the
brief), Greenberg Traurig LLP, Washington, DC, for Appellees.

Before TYMKOVICH, Chief Judge, HOLMES, and McHUGH, Circuit Judges.
Appellate Case: 20-1274 Document: 010110645297 Date Filed: 02/15/2022 Page: 2

TYMKOVICH, Chief Judge.

A group of pet owners brought a class action against Champion Petfoods

USA, Inc., alleging representations on Champion’s packaging on its Acana and

Orijen brands of dog food were false and misleading. Champion’s dog food

packaging contains a number of claims about the product, advertising the food as

“Biologically Appropriate,” “Trusted Everywhere,” using “Fresh and Regional

Ingredients,” and containing “Ingredients We Love [From] People We Trust.”

The district court dismissed the claims as either unactionable puffery or overly

subjective and therefore not materially misleading to a reasonable consumer.

We agree with the district court that Plaintiffs’ claims fail to allege

materially false or misleading statements on Champion’s packaging because the

phrases fail to deceive or mislead reasonable consumers on any material fact. We

therefore AFFIRM the district court’s grant of Champion’s motion to dismiss.

I. Background

Champion is a pet food producer located in Auburn, Kentucky, where it

manufactures pet food that is distributed throughout the United States. 1 It

launched a food brand called Acana in the 1990s, and in 2006 another called

Orijen. Champion’s Orijen brand was aimed at offering a premium product to

consumers that would mirror foods dogs might encounter in the wild. Champion

1
Champion Petfoods USA Inc. is a subsidiary of Champion Petfoods LP, a Canadian
limited partnership.

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marketed Orijen as “Biologically Appropriate” dog food that contained the

“richness, freshness, and variety” of meats dogs were “evolved to eat.”

Champion later employed the same nutritional philosophy with its Acana brand as

well.

The food packaging reflected this branding. For example, on Orijen bags,

the packaging explained that “Biologically Appropriate” meant that the food

would “nourish as nature intended.”

The Orijen packaging also advertised it was “Trusted Everywhere” and

contained “Fresh Regional Ingredients” “Grown Close to Home” that were

“ethically raised by people we know and trust[.]”

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On the packaging of certain dog food formulas, Champion made more

specific claims. For example, on the packaging of the Orijen Six Fish formula

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pictured below, Champion listed the approximate amount of each fish included by

weight. Champion noted that some of the fish—such as the wild monkfish and

wild Alaskan cod—were fresh or raw, while other fish included were fresh, raw,

or dried. And it also noted that only eleven of the thirteen pounds in the bag were

fish.

Unrelated to its packaging advertising, Champion was notified in 2018 by

the Food and Drug Administration that some of the beef tallow (beef fat) it used

in certain pet food formulas had been contaminated with pentobarbital, a

controlled substance. But none of the dog foods purchased by Plaintiffs

contained ingredients tainted with pentobarbital.

II. Procedural History

Plaintiffs filed this class action in the District of Colorado. In the

complaint, they allege seven claims based on Champion’s package labeling and

sale of contaminated product, including: (1) violation of the Colorado Consumer

Protection Act, (2) breach of express warranty, (3) breach of implied warranty,

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(4) fraudulent misrepresentation, (5) fraudulent concealment, (6) unjust

enrichment, and (7) negligence.

The district court dismissed the case based on Plaintiffs’ failure to allege

any materially false or misleading representations or omissions of material fact.

The district court acknowledged that whether a statement is false or misleading is

typically a question for the jury, but when statements are “so general or devoid of

specific factual content,” they are incapable of empirical verification and cannot,

“as a matter of law, give rise to liability.” Aplt. App. at 199. First, the district

court dismissed “Trusted Everywhere” and “Ingredients We Love [from] People

We Trust” as “non-actionable puffery” because no rational consumer would rely

on these two phrases as material statements of fact. Id. at 202. Next, the court

found that Plaintiffs lacked standing to bring any claims under “Biologically

Appropriate” because they did not allege the dog food they purchased from

Champion contained any pentobarbital contamination. Because Plaintiffs had

purchased all the dog food before Champion received shipments of allegedly

contaminated ingredients, they suffered no harm arising from Champion’s

packaging. Third, the claims based on the statement about “Fresh Regional

Ingredients” were dismissed as subjective claims that were not empirically

verifiable. Finally, the district court dismissed Plaintiffs’ claims that Champion

omitted material facts, finding that the packaging was not misleading.

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III. Analysis

We review dismissal under Rule 12(b)(6) for failure to state a claim de

novo. Kansas Penn Gaming, LLC v. Collins, 656 F.3d 1210, 1214 (10th Cir.

2011). In doing so, we accept “all the well-pleaded allegations of the complaint

as true and must construe them in the light most favorable to the plaintiff.”

Albers v. Bd. of Cnty. Comm’rs of Jefferson Cnty., Colo., 771 F.3d 697, 700 (10th

Cir. 2014). To survive a motion to dismiss, a complaint must “state a claim to

relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570

(2007). We “disregard conclusory statements and look only to whether the

remaining, factual allegations plausibly suggest the defendant is liable.” Khalik

v. United Air Lines, 671 F.3d 1188, 1191 (10th Cir. 2012).

We first describe the legal framework under Colorado law for deciding

whether an advertising statement constitutes an actionable misrepresentation

under the Colorado Consumer Protection Act. Next, we review the legal

framework for claims of omission. Then, we analyze whether each of the four

statements was actionable for false or misleading misrepresentations and whether

Plaintiffs had standing to bring their claims under “Biologically Appropriate.”

Finally, we address Plaintiffs’ omission-based claims.

A. Legal Framework

In a case based on federal diversity jurisdiction, the law of the forum state

governs. Wankier v. Crown Equip. Corp., 353 F.3d 862, 866 (10th Cir. 2003).

We thus defer to the judgments of the Colorado Supreme Court and rely on

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decisions of the state’s intermediate appellate court for persuasive logic. Long v.

St. Paul Fire & Marine Ins. Co., 589 F.3d 1075, 1081 (10th Cir. 2009).

1. Affirmative Misrepresentations

The Colorado Consumer Protection Act, Colo. Rev. Stat. §§ 6-1-101, et

seq., “was enacted to provide prompt, economical, and readily available remedies

against consumer fraud.” Crowe v. Tull, 126 P.3d 196, 202 (Colo. 2006) (citation

and internal quotation marks omitted). For a plaintiff to recover on a claim under

the Colorado Consumer Protection Act, the plaintiff must prove by a

preponderance of the evidence that: (1) the defendant engaged in an unfair or

deceptive trade practice; (2) the challenged practice occurred in the course of the

defendant’s business; (3) the deceptive trade practice significantly impacted the

public as actual or potential consumers of the defendant’s goods; (4) the plaintiff

suffered injury in fact to a legally protected interest; and (5) the deceptive trade

practice caused actual damages or losses to the plaintiff. Garcia v. Medved

Chevrolet, Inc., 263 P.3d 92, 98 (Colo. 2011) (citation omitted).

Section 6-1-105 of the CCPA provides a non-exhaustive list of deceptive

trade practices that are actionable. Showpiece Homes Corp. v. Assurance Co. of

Am., 38 P.3d 47, 54 (Colo. 2001). Among the deceptive trade practices alleged

by Plaintiffs are that Champion: “knowingly or recklessly ma[de] a false

representation as to the characteristics, ingredients, uses, benefits, alterations, or

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quantities of goods [or] food[,]” Colo. Rev. Stat. § 6-1-105(e); “[r]epresent[ed]

that goods [or] food . . . are of a particular standard, quality, or grade . . . [when

Champion] kn[ew] or should [have] know[n] that they are of another,” Colo. Rev.

Stat. § 6-1-105(g); “[a]dvertis[ed] goods . . . with intent not to sell them as

advertised,” Colo. Rev. Stat. § 6-1-105(i); and “[f]ail[ed] to disclose material

information concerning goods, services, or property which information was

known at the time of an advertisement or sale if such failure to disclose such

information was intended to induce the consumer to enter into a transaction,”

Colo. Rev. Stat. § 6-1-105(u); Aplt. App. at 67–68 ¶ 221.

In applying these provisions, the Colorado Supreme Court has noted that,

at least with respect to Colo. Rev. Stat. § 6-1-105(e), “a deceptive trade practice”

under the CCPA “requires a false statement of fact that either induces the

recipient to act or has the capacity to deceive the recipient.” Rhino Linings USA,

Inc. v. Rocky Mt. Rhino Lining, Inc., 62 P.3d 142, 144 (Colo. 2003) (emphasis

added). In that case, the court applied its precedent in non-CCPA cases to

determine that “false representation[s],” as used in the CCPA, are

misrepresentations or false representations that have the capacity or tendency to

deceive. Id. at 148.

Under Colorado law, misrepresentation is defined as a “false or misleading

statement that induces the recipient to act or refrain from acting[.]” Id. at 147.

But misrepresentation is only actionable when “it is made ‘either with knowledge

of its untruth, or recklessly and willfully made without regard to its

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consequences, and with an intent to mislead and deceive the plaintiff.’” Id.

(citing Parks v. Bucy, 211 P. 638, 639 (Colo. 1922)). “Thus, a party may

establish a deceptive trade practice by proof that a defendant knowingly made a

misrepresentation that induces a party’s action or inaction[.]” Id. And in

addition, the alleged “representation of a fact must be . . . material[.]” Parks v.

Bucy, 211 P. at 640.

But “[m]ere statements of opinion such as puffing or praise of goods by

seller is no warranty.” Elliott v. Parr, 66 P.2d 819, 821 (Colo. 1937). Instead,

the term “puffery” is used to “characterize those vague generalities that no

reasonable person would rely on as assertions of particular facts.” Alpine Bank v.

Hubbell, 555 F.3d 1097, 1106 (10th Cir. 2009). These kinds of statements cannot

form the basis for any claim of misrepresentation of fact. “[G]eneral statements

of opinion typically constitute protected puffery, while specific representations of

fact can form the basis of a deceptive trade practice claim.” Giles v. Inflatable

Store, Inc., No. 07-CV-00401-PAB-KLM, 2009 WL 961469, at *3 (D. Colo.

Apr. 6, 2009) (footnote omitted). For example, in Shaw v. Gen. Motors Corp.,

727 P.2d 387 (Colo. App. 1986), a Colorado court concluded GM’s representation

that “Chevy’s business is providing the right truck for your business” was not an

affirmation of fact and was not actionable because it was “merely [GM]’s opinion

or commendation of [its] goods.” 727 P.2d at 391 (citation and internal quotation

marks omitted). Colorado courts have continued to make clear that common-law

doctrines inform the meaning and application of the CCPA.

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Similarly, in Park Rise Homeowners Ass’n, Inc. v. Res. Const. Co., 155

P.3d 427 (Colo. App. 2006), the Colorado Court of Appeals applied common-law

puffing doctrine in a CCPA case, concluding that the “alleged misrepresentations

were mere ‘puffing’ and, therefore, were not actionable under the CCPA.” 155

P.3d at 435. Analyzing those precedents, among others, the court “conclude[d]

that the CCPA does not, as a matter of law, make actionable a statement which

would otherwise be mere puffery.” Id. In applying this law, the court held that

representations that homes were of “quality construction” were mere puffery, and

thus not actionable under the CCPA. Id. at 436.

But if sellers make any “statements of value or quality” with the “purpose

of having them accepted as [a] fact,” then they must be “treated as

representations of fact.” Id. at 435 (citing Groves v. Chase, 151 P. 913, 915

(Colo. 1915) (internal quotation marks omitted)). To be sure, sellers “‘have the

right to exalt the value or quality of their own property to the highest point

credulity will bear,’ [but] any ‘statements of value or of quality may be made

with the purpose of having them accepted as [a] fact,’ and if so[,] should be

treated as ‘representations of fact.’” Id. at 435 (citing Groves v. Chase, 60 Colo.

at 162).

2. Omission-Based Claims

In addition to affirmative misrepresentations, Colorado law makes

actionable certain omissions of fact. In Colo. Rev. Stat. § 6-1-105(u), a

“[f]ail[ure] to disclose material information concerning goods . . . which

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information was known at the time of an advertisement or sale if such failure to

disclose such information was intended to induce the customer to enter into a

transaction” is an actionable deceptive trade practice. Colorado law also

prohibits fraudulent concealment. For a defendant to be liable for fraudulent

concealment, a “plaintiff must show that the defendant had a duty to disclose

material information.” In re Rumsey Land Co., LLC, 944 F.3d 1259, 1272 (10th

Cir. 2019) (citing Mallon Oil Co. v. Bowen/Edwards Assocs., Inc., 965 P.2d 105,

111 (Colo. 1998) (internal quotation marks omitted)). Whether there is a duty to

disclose a fact is a question of law. Poly Trucking, Inc. v. Concentra Health

Servs., Inc., 93 P.3d 561, 564 (Colo. App. 2004).

In determining whether there is a duty to disclose, Colorado courts have

looked to the Restatement (Second) of Torts § 551 for guidance. In re Rumsey

Land Co., LLC, 944 F.3d at 1272. The section provides that

[o]ne who fails to disclose to another a fact that he knows may
justifiably induce the other to act or refrain from acting in a business
transaction is subject to the same liability to the other as though he
had represented the nonexistence of the matter that he has failed to
disclose, if, but only if, he is under a duty to the other to exercise
reasonable care to disclose the matter in question.

Restatement (Second) of Torts § 551(1) (Am. Law. Inst. 1977); see also Mallon

Oil, 965 P.2d at 111; Berger v. Sec. Pac. Info. Sys., Inc., 795 P.2d 1380, 1383

(Colo. App. 1990).

Section 551 of the Restatement and the Colorado cases interpreting it

demonstrate that in the absence of a special relationship or custom requiring

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disclosure, a party is not required to disclose material facts unless he has done

something to create a false impression.

B. Application

Applying Colorado law, we conclude none of the phrases supports claims

for deceptive advertising.

1. “Trusted Everywhere” and “Ingredients We Love [From] People
We Trust”

The district court correctly found that the statements “Trusted Everywhere”

and “Ingredients We Love [From] People We Trust” are unactionable puffery.

No reasonable consumer would have concluded these “vague generalities” were

anything other than boilerplate statements of opinion.

Plaintiffs contend the district court erred in determining these statements

were puffery because Plaintiffs understood them to mean Champion had a

specific testing regimen and would not use certain ingredients, such as regrinds

(filler that comes from already cooked dog and cat foods that failed nutritional

testing). In particular, Plaintiffs took issue with Champion’s failure to

“consistently test its ingredients or finished [d]og [f]ood” for contamination.

Aplt. Br. at 36. In support of this argument, Plaintiffs cite Gen. Steel Domestic

Sales, LLC v. Chumley, 129 F. Supp. 3d 1158 (D. Colo. 2015), where the court

held actionable representations that a company had “zero unresolved customer

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issues” and a “history of 100% customer satisfaction.” 129 F. Supp. 3d at 1176–

77 (internal quotation marks omitted).

But Plaintiffs implausibly allege these vague packaging statements to mean

something they do not say. Champion does not make claims about its testing

regimens on the dog food packaging. Nor does Champion say on the packaging

that the dog food is free from filler. Instead, the statements about being “Trusted

Everywhere” and using “Ingredients We Love [From] People We Trust” are the

sort of subjective and “vague generalities that no reasonable person would rely on

as assertions of particular facts.” Alpine Bank, 555 F.3d at 1106.

Besides reading too much into the statements, Plaintiffs fail to demonstrate

the claims are falsifiable and thus statements of fact. In Chumley, the court

focused on whether the claims made were “specific, measurable claims that can

be evaluated as true or false.” 129 F. Supp. 3d at 1176–77. The court concluded

that the questions whether zero customer issues remained unresolved or there was

a history of 100% customer satisfaction did not elude quantification. Id. at 1177.

We agree that testing for falsifiability is helpful in determining whether a claim is

actionable as a misrepresentation of fact or mere puffery.

Here, Plaintiffs fail to plausibly allege the claims are falsifiable.

Champion did not claim its dog food was trusted by 100% of its customers. Nor

did Champion claim that everyone loves all the ingredients it uses. Instead,

Champion merely made vague and unproveable claims. Consequently, we

conclude these claims are protected puffery.

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2. “Fresh and Regional”

The district court concluded that the statement “Fresh Regional

Ingredients” was either not empirically verifiable or unactionable puffery.

The statement stands among other claims that the food was “the fullest

expression of [Champion’s] . . . fresh regional ingredients commitment,” that

“focus[ed] on local ingredients that are ethically raised by people [Champion]

know[s] and trust[s].” Aplt. App. at 203. The district court found that these

statements were “inherently subjective ideals” because no court or jury could

decide what amount of fresh or regional ingredients “would be enough” to

establish focus or commitment. Id. at 204.

We agree with the district court that the phrase can only be understood in

the context of the entire packaging of Champion’s dog food. But even if we take

the claim “Fresh and Regional” on its own, it too is a “vague generality” that

would not mislead a reasonable consumer who examined the entire package.

Although Plaintiffs allege that the dog food contained a “material amount” of

non-fresh and non-regional ingredients, they do not explain what amount of fresh

ingredients a reasonable consumer would expect or why Champion’s advertising

claims suggested that the food was entirely fresh or regional. In fact, the

ingredients listed on the Orijen and Acana packaging belie any understanding that

the food is entirely fresh by listing non-fresh and non-regional ingredients.

In one instructive case, the Colorado Court of Appeals explained that such

generic statements lack a “specific representation of fact subject to measure[.]”

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Park Rise, 155 P.3d at 436. They are typical and “obvious sales talk language”

that one can expect to see on any number of food packages. See id. (citation and

internal quotation marks omitted). The district court correctly concluded that

claims that ingredients are “fresh” and “regional” are not subject to measurement.

No reasonable consumer would find Champion’s packaging misleading merely

because the ingredients contained some percentage of non-fresh or non-regional

ingredients when, as here, the packaging disclosed that very fact.

3. “Biologically Appropriate”

The district court dismissed Plaintiffs’ claims under the phrase

“Biologically Appropriate” for lack of standing. The district court understood

Plaintiffs’ claim was based on its allegation that some of the food sold in 2018

contained beef tallow contaminated with pentobarbital. In analyzing the claim,

the court found that none of the plaintiffs actually purchased any dog food that

contained beef tallow as an ingredient after Champion purchased the

contaminated beef tallow, and so Plaintiffs lack standing to assert a claim, citing

Lujan v. Defs. of Wildlife, 504 U.S. 555 (1992) (plaintiffs must allege an actual

imminent injury to have standing).

We agree Plaintiffs could not have suffered any consumer protection injury

if they had not purchased dog food containing the objectionable ingredients. On

appeal, Plaintiffs contend the “district court erred in limiting its analysis of [the

Biologically Appropriate] claim to whether Plaintiffs purchased any of the [d]og

[f]ood that was confirmed to contain an ingredient with detectable levels of

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pentobarbital.” Aplt. Br. at 33. Instead, Plaintiffs argue “each bag of [d]og

[fo]od purchased by Plaintiffs” was affected because it “ha[d] a risk of, or [did]

contain, pentobarbital whe[n] it [was] advertised as Biologically Appropriate for

dogs.” Id. And at the district court, Plaintiffs argued that the dog food

“contained and/or had a material risk of containing pentobarbital for years.”

Aplt. App. at 165. But with a close reading, it is clear that Plaintiffs’ allegations

that the dog food was actually contaminated with pentobarbital was limited only

to dog food sold in 2018 because that is when Champion received notification it

had purchased contaminated beef tallow. Id. at 174. Plaintiffs failed to argue

that Champion sold pentobarbital-contaminated dog food before Champion

received the contaminated 2018 batch of beef tallow, and so they failed to allege

they purchased any contaminated dog food. Instead, Plaintiffs argued that the

dog food they purchased before 2018 was at risk of contamination. But arguing

that they purchased dog food that was at risk of contamination—unlike arguing

that they purchased dog food that was contaminated—is insufficient for standing

because an alleged injury cannot be “too speculative for Article III purposes.”

Lujan, 504 U.S. at 564 n.2.

But putting aside the pentobarbital claim, we do not agree that Plaintiffs

lacked standing to bring a false advertising claim based on the “Biologically

Appropriate” phrase more generally. Plaintiffs’ second amended complaint

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alleges other reasons why Champion’s packaging claim that its dog food was

“Biologically Appropriate” was misleading. 2

Even though Plaintiffs have standing to challenge this statement, no

reasonable consumer would have concluded this general statement of quality was

a material misstatement of fact. As the packaging explains, “Biologically

Appropriate” means that the dog food “mirror[s] the richness, freshness, and

variety” of a dog’s natural prey, and that the dog food is “protein rich and

carbohydrate limited.” Aplt. App. at 136. No reasonable consumer would

interpret this phrase to establish the inclusion of a specific amount of ingredients

or the exclusion of other ingredients. Like the other packaging statements, the

phrase is “not a specific representation of fact subject to measure or calibration.”

Park Rise, 155 P.3d at 436. The only conclusion that a reasonable consumer

could draw from a package that claimed the dog food was “Biologically

Appropriate” is that it was fit for dogs to consume. Although Plaintiffs allege

that Champion’s dog food was not fit for dog consumption, they fail to plausibly

allege what level of content of heavy metals in the dog food would render it unfit

2
Plaintiffs allege in their complaint that by using the phrase “Biologically
Appropriate,” Champion misrepresented that the dog food contained only natural,
nourishing ingredients [Aplt. App. at 27 ¶ 36]; promised specific ratios of meat
and fish ingredients [Aplt. App. at 27 ¶ 37]; misled consumers because Champion
“failed to prevent” exceeding levels of heavy metals than those found in fresh
ingredients [Aplt. App. at 38 ¶ 70]; suggested no use of regrinds that were twice
cooked and had no nutritional value [Aplt. App. at 41 ¶ 90]; and obscured the
amount of fresh, regional, and “Biologically Appropriate” ingredients they used
[Aplt. App. at 47 ¶ 129]. See Aplt. App. at 27–44.

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for consumption by dogs. And Plaintiffs do not allege that the ingredients did not

approximate what a dog may find in a natural environment or that the dog food

caused any actual harm to their pets. 3 Plaintiffs’ complaint thus fails to allege

Champion’s “Biologically Appropriate” advertising claim was false or

misleading.

* * *

In sum, Plaintiffs have not plausibly alleged a false advertising claim based

on Champion’s Acana and Orijen packaging.

C. Omission

The district court dismissed Plaintiffs’ omission-based claims because it

concluded the complaint contained no actionable claims.

In their complaint, Plaintiffs contended Champion omitted information

about the “[r]isk of pentobarbital,” “[r]isk of inclusion of regrinds with

pentobarbital,” “[i]nclusion of [r]egrinds,” “[i]nclusion of nondisclosed non-

regional ingredients,” and “[i]nclusion of other non-fresh ingredients,” and that

3
The Plaintiffs allege that Champion’s dog food contains some amount of
“regrinds” and “heavy metals.” But Plaintiffs failed to allege what level of heavy
metals content in a dog food formula would cause injury to dogs or render the
dog food not biologically appropriate. We therefore cannot credit Plaintiffs’
argument that inclusion of some heavy metals—which are naturally occurring in
certain ingredients, such as fish—renders misleading the advertising of the dog
food as biologically appropriate. And Plaintiffs fail to demonstrate how the
inclusion of some filler makes the dog food as a whole biologically inappropriate.

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such information was omitted “to induce Plaintiffs and the members of the

Classes to purchase” the dog food.4 Aplt. App. at 77 ¶¶ 272, 273.

Plaintiffs press two omission claims on appeal: one based on the CCPA and

the other on fraudulent concealment. We find that Plaintiffs fail on their CCPA

omission claim through forfeiture by failure to argue the claim at the district

court. See Ave. Capital Mgmt. II, L.P. v. Schaden, 843 F.3d 876, 885 (10th Cir.

2016) (“An appellant forfeits an argument by failing to preserve it in [the] district

court.”). Although Plaintiffs made the claim in their complaint, Aplt. App. at 68

¶ 221(d), they failed to press the argument in their brief opposing the motion to

dismiss, Aplt. App. at 176–79. In the omission portion of their brief opposing the

motion to dismiss, Plaintiffs argued Champion “fraudulently concealed material

facts,” listed some of the elements for the claim, and then fleshed out the

fraudulent concealment argument. Aplt. App. at 176–79. But Plaintiffs failed to

make a separate CCPA omission claim. At most, Plaintiffs alluded to the

separate CCPA claim by arguing that they “alleged facts sufficient to support

their omissions claims.” Id. at 179 (emphasis added). But that mere allusion to a

separate CCPA claim is insufficient to preserve the argument before this court.

See In re Rumsey Land Company, LLC, 944 F.3d 1259, 1271 (10th Cir. 2019)

4
As we noted previously, Plaintiffs lack standing for any claims against
Champion for the inclusion of pentobarbital because they do not allege they ever
purchased the contaminated dog foods. Consequently, Plaintiffs cannot allege a
claim for Champion’s omission of notice that certain dog foods contained
pentobarbital.

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(“‘Fleeting references’ to an argument are also insufficient [to preserve it for

appeal].”) (quoting Telecomms., Inc. v. Comm’r, 104 F.3d 1229, 1233–34 (10th

Cir. 1997)).

On the fraudulent concealment claim, Plaintiffs argue Champion had a duty

to disclose information about the inclusion of heavy metals, non-fresh

ingredients, and regrinds. Their argument is predicated on “Champion h[olding]

itself out to be a manufacturer of ‘premium’ and ‘high quality’ dog food” and

touting its dog food as “Biologically Appropriate and comprised of Fresh and

Regionally sourced ingredients.” Aplt. Br. at 40. Plaintiffs contend the inclusion

of certain ingredients makes those positive claims misleading. The problem with

this argument is that it ignores that these self-promoting claims are not statements

of fact because they are still puffery. Puffery is not transformed into an

actionable claim because the Plaintiffs object to some of the ingredients in the

dog food. Nor do Plaintiffs allege any plausible baseline to compare Champion’s

ingredients against some ideal.

Consequently, we conclude the district court properly dismissed the

omission-based claims.

IV. Conclusion

For these reasons, we AFFIRM the district court’s dismissal of Plaintiffs’

complaint.

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