KetoNatural Pet Foods v. Hill’s Pet Nutrition — Tenth Circuit Revives Lanham Act Claims Over Alleged Grain-Free Dog Food Smear Campaign

Background

Hill’s Pet Nutrition is one of three companies that dominate the U.S. market for traditional grain-containing complete-diet pet food and markets itself as the “#1 Vet-Recommended Brand.” When grain-free and non-traditional pet foods — collectively labeled “BEG” (Boutique, Exotic, Grain-free) — began eating into Hill’s market share in the early 2010s (Hill’s slid from third to fourth in the market), the company allegedly embarked on a coordinated campaign to tie grain-free diets to canine dilated cardiomyopathy (DCM), a deadly heart disease.

According to the complaint, Hill’s funneled money to partner veterinarians and two ostensibly independent non-profits — Morris Animal Foundation and the Mark Morris Institute — who then reported a supposed spike in DCM among grain-free-fed dogs to the FDA, published studies with misleading titles and abstracts, gave media interviews warning of the risk, moderated a 129,000-member Facebook group suppressing contrary data, and provided Hill’s-paid continuing education materials to veterinarians. The FDA investigated for four years and never established a correlation. Meanwhile, Hill’s revenues grew more than 50% from 2018 to 2022 while BEG sales swung from +8% annual growth to -6%.

KetoNatural Pet Foods, a grain-free startup, filed a putative class action in the District of Kansas alleging Lanham Act false advertising and Kansas civil conspiracy. The district court dismissed, holding the challenged statements were not “commercial speech” and were not “literally false.” KetoNatural appealed.

The Court’s Holding

The Tenth Circuit affirmed in part, reversed in part, and remanded. Writing for a unanimous panel, Judge Tymkovich applied the Supreme Court’s Bolger v. Youngs Drug Products framework, under which non-core commercial speech is identified by three factors considered holistically: (1) it functions as an advertisement, (2) it references a specific product, and (3) it is made with economic motivation.

Hill’s own website statements and veterinary education materials — reversed (actionable). The court held that Hill’s’ website pages disparaging BEG diets plausibly constitute commercial speech. Though not “a classic advertising campaign,” the statements functioned like one: Hill’s dominated the traditional pet food market (making BEG disparagement a tacit promotion of its brand), the materials were published with clear economic motivation (Hill’s was rapidly losing market share), and hyperlinks from Hill’s’ website to co-conspirator veterinarian blogs that attacked grain-free food were rendered commercial by their context. Similarly, the password-protected veterinary education section on Hill’s’ website — offering 90-minute presentations warning veterinarians about “diet-induced cardiomyopathy” in grain-free-fed dogs — was plausibly commercial speech because Hill’s’ marketing model targets veterinarians as its gateway to consumers.

On the falsity element, the court applied the establishment claim doctrine: when a commercial statement claims to be backed by scientific data, a plaintiff can show literal falsity by demonstrating that the cited studies either do not establish the proposition for which they are cited or are not sufficiently reliable to permit that conclusion. KetoNatural plausibly alleged both, pointing to structural infirmities in the supporting studies (uncontrolled variables, failure to compare life expectancy, lack of incidence data) and the FDA’s four-year investigation that never confirmed the link.

Veterinarians’ public media statements and blog posts — affirmed (not actionable). The court upheld dismissal as to the individual veterinarians’ public statements — media interviews and blog posts warning about grain-free diets — because those statements were too attenuated from Hill’s to constitute Hill’s’ commercial speech. Unlike Hill’s’ website content, the veterinarians’ independent communications did not mention Hill’s or plausibly promote its products, and the veterinarians did not occupy the same dominant market position that would allow disparagement of competitors to function as implicit brand promotion. The court found these statements protected First Amendment speech on matters of public concern.

Non-profits’ statements — affirmed (not actionable). The non-profit organizations’ statements likewise failed the commercial speech test — KetoNatural did not adequately plead the quid pro quo economic motivation necessary to tie the foundations’ speech to Hill’s’ commercial interests.

The case was remanded for the district court to determine: (1) whether Rule 9(b) or the lower Rule 12(b)(6) standard governs pleading of Lanham Act claims in this circuit, and (2) whether a Lanham Act violation can serve as the predicate independent wrong for a Kansas civil conspiracy claim.

Key Takeaways

• Market-dominant competitors can face Lanham Act liability for disparaging a category of competing products even when the statements never name their own brand, if the disparagement functions to channel consumers toward their products.
• Hyperlinks from a company’s commercial website to third-party content can transform that content into the company’s own commercial speech — the surrounding commercial context matters.
• The establishment claim doctrine is a powerful tool for plaintiffs: when a defendant’s marketing claims rest on science, plaintiffs can establish literal falsity by showing the cited science does not actually support the claims — even without proving the negative (i.e., without proving the product is safe).
• Funding third parties to make favorable statements does not automatically make those statements the funder’s commercial speech — plaintiffs must allege a closer nexus tying the third party’s economic motivation to the funder’s commercial interests.
• Veterinary and professional-education content distributed by a company to influence purchasing decisions through trusted intermediaries (doctors, veterinarians) can constitute commercial speech even if framed as purely educational.

Why It Matters

The ruling has implications well beyond the pet food industry. Any company that uses third-party studies, educational materials, or funded advocacy to disparage competitors’ products — pharmaceutical companies citing clinical studies, supplement makers citing health research, agricultural companies citing environmental data — could face Lanham Act exposure if the underlying science does not support the claims being made. The court’s treatment of the commercial speech question is also notable for the digital age: embedding links to third-party content on a commercial website can bring that external content within the scope of Lanham Act liability, a question other circuits have not squarely addressed in this posture.

The remand leaves open the question of what pleading standard applies to Lanham Act claims — a circuit-level question the Tenth Circuit has not resolved and that will bear on how much factual detail plaintiffs must allege. If the district court applies Rule 9(b)’s heightened pleading standard (typically reserved for fraud claims), KetoNatural’s complaint may still face dismissal despite today’s reversal.