Can a cartoonish talking dog commit false advertising?
That’s the issue that pits Sophie, a West Highland terrier from East Fishkill, against Nestle Purina Petcare Co. of St. Louis.
It’s a close call, U.S. District Court Judge Kenneth M. Karas ruled in August on a motion to dismiss a lawsuit filed on behalf of Sophie.
Actually, neither Sophie nor her predecessor, the late Tyler, also a West Highland terrier, are named as plaintiffs. Their owner, Paul Kacocha, sued Nestle Purina last year claiming that misleading marketing motivated him to buy bacon-flavored Beggin’ Strips. For years he bought the treats at Animal Kingdom in Brewster, Petco in Poughkeepsie and Pet Supplies Plus in Fishkill.
“Dog lovers go to extremes to provide for and feed their dogs,” his complaint says. They want to give their dogs “high-quality, wholesome, human-quality ingredients and are willing to pay a premium price to do so.”
Beggin’ Strips prominently feature bacon on the packaging and television commercials. But bacon and bacon fat are the 10th and 12th ingredients by weight, surpassed by non-meat fillers like ground wheat, corn gluten meal and water.
Kacocha contends that the advertising and packaging constitute false representations under the New York General Business Law. He sued in U.S. District Court in White Plains and asked that the case be certified as a class action on behalf of all dog owners who were deceived into thinking that Beggin’ Strips are made predominantly of real pork bacon.
Beggin’ Strips were introduced in 1993 and includes a dozen variations, like thick cut hickory and BBQ pork. Sophie and Tyler were partial to the basic bacon and the bacon and cheese versions.
Beggin’ Strips are cut, shaped, colored and striated to look like real bacon. They are flavored to smell like bacon. Even the name, Kacocha says, is designed to sound like the word bacon when spoken.
A large image of crispy bacon is splayed across the front of the package, just above an icon of a frying pan with two sizzling strips of bacon and the notation, “bacon flavor.” The back side features a crazed, salivating dog chasing a giant strip of bacon. The caption says “BacoNology 101.”
And then there is the TV commercial, “There’s No Time Like Beggin’ Time,” that has aired more than 6,700 times.
A digitally added bacon-flavored bouquet wafts from the package and over the family dog. The dog jumps to attention and a thought bubble — four strips of bacon on a plate — appears next to his right ear. The voiceover has the dog shouting, “Bacon, gotta get that bacon!”
Hold on, Nestle Purina responded to the dog owner’s legal complaint. No reasonable consumer could be deceived into thinking that Beggin’ Strips contain slices of human-grade bacon.
The ingredient label clearly lists bacon and bacon fat. Kacocha’s gripe, the company says in its motion to dismiss the lawsuit, is that there just isn’t enough bacon to satisfy him.
A reasonable consumer understands that a non-refrigerated dog treat would not contain meat that spoils or fat that turns rancid. Consumers recognize that a product fashioned to mimic bacon is not actual bacon. The bacon on the package is not a picture of actual bacon but a cartoonish depiction of bacon, according to Nestle Purina.
“Beggin’” is a play on words meant to convey the notion that dogs will “love the product so much they will beg for it.” And “BacoNology” is a made-up word that evokes the idea of scientists conjuring a product that appeals to dogs just as bacon does but that is not actually bacon.
The TV commercials are hyperbolic presentations that constitute commercial puffery, the company says, and cannot be the basis for a false advertising claim. The ad is told from the point of view of a “maniacal, bacon-obsessed dog” that “craves bacon so badly he sees it everywhere.”
“It’s bacon!” a dog screams when a psychologist shows a Rorschach inkblot of Beggin’ Strips. The psychologist corrects the dog, “No, it’s Beggin’ Strips brand. Dogs don’t know it’s not bacon.”
The advertising is so grossly exaggerated, Nestle Purina argues, that no reasonable buyer would take it at face value.
“In an act of judicial restraint,” Judge Karas wryly wrote in his ruling, he declined to invoke the phrase “where’s the beef?” or the expression “when pigs fly” or the works of seventeenth-century English jurist Sir Francis Bacon, “although not for want of opportunity.”
Different courts have come to different conclusions when faced with the same issues, Karas said, and the facts in this case may yet yield a different conclusion at a later stage.
He did dismiss the sole complaint about the company’s website where it says Beggin’ Strips are made with bacon, because the statement is true.
The crux of Kacocha’s claim is that he believed the product was predominantly made of real bacon and therefore he paid a premium. In light of the heavily themed bacon-branding, the judge said, the claim is not implausible. While an overly excited, cartoonish talking dog salivating over crispy bacon may be playful or absurd, it’s not enough to make the advertising “nonactionable puffery,” the judge ruled.
So for now, Sophie’s and Tyler’s suit still has legs.