By Dr. Becker
This is a bit of an update for those of you following the Purina vs. Blue Buffalo “mutual” lawsuits.
To refresh your memory, in May of this year, Purina filed a lawsuit in U.S. Federal District Court against Blue Buffalo, alleging false advertising, disparagement and unjust enrichment.1 Purina hired an independent laboratory to analyze some of Blue Buffalo’s formulas, and based on that analysis, determined the company was engaging in false advertising.
Blue Buffalo responded immediately, and by mid-May, the company had filed its own lawsuit against Purina, demanding that "Nestle Purina be held accountable for their actions, and that they stop their carefully orchestrated P.R. campaign designed to erode the trust that pet parents place in our BLUE brand."2
Purina Files an Amended Complaint Against Blue Buffalo
On September 18, Purina filed an amended complaint against Blue Buffalo, alleging additional false advertising in the marketing of the company’s pet food, treats, and cat litter.3
Once again, Blue Buffalo responded immediately with a letter from founder and Chairman Bill Bishop, who asserted that the person conducting Purina’s independent testing possesses “dubious scientific credentials” and “works out of a lab in his home.” (In one of a series of three letters responding to the original lawsuit, Bishop referred to Purina’s testing as “voodoo science”.)
Bishop continues:
“His analysis was performed with a rudimentary microscope under less than optimal conditions with questionable methods and record keeping. All things considered, a very odd choice for a company with unlimited financial resources. Perhaps more respected organizations turned them down?”
As you might expect, Purina refutes Bishop’s characterization and says Windsor Laboratories, owned by Dr. James V. Makowski "… is a well-recognized laboratory specializing in microscopic analysis for the agricultural and other related industries, including the pet food industry.”
Blue Buffalo hired its own Ph.D. to provide an opinion about the scientific adequacy and reliability of the conclusions reached by Purina’s expert, and added his legal declaration to their website on a page subtly headlined, “Learn the Truth Behind Purina’s Junk Science.”4
Hill’s Pet Nutrition Was the First to Challenge Blue Buffalo’s Advertising
In addition to the ongoing and very public brouhaha between Purina and Blue Buffalo, there’s something interesting happening behind the scenes as well.
You may recall that the pet food giant who originally went after Blue Buffalo’s advertising was Hill’s Pet Nutrition, which is owned by Colgate-Palmolive. In fact, Purina made note of Hill’s challenge to Blue’s advertising in its May lawsuit. Here’s how PetfoodIndustry.com describes it:
Nestlé Purina PetCare seemingly picked up Hill’s banner by suing Blue Buffalo for false advertising, disparagement and ‘unjust enrichment’—including violations of the US Federal Lanham Act—in May. Blue Buffalo promptly countersued for defamation, unfair competition, false advertising and violations of trade practice statutes.5
The backstory: in March of this year, Hill’s complained to the National Advertising Division (NAD) of the Council of Better Business Bureaus that Blue Buffalo was disparaging its competition in its advertising campaigns.
In response, the NAD recommended that Blue Buffalo modify some of its advertising claims, and Blue Buffalo agreed to make one of the recommended changes, but said it planned to appeal the others to the National Advertising Review Board. In August, the NARB also recommended that Blue Buffalo modify its advertisements to avoid any express or implied messages that competing pet food companies are “fooling” or otherwise misleading consumers. It also recommended that Blue modify its online “True Blue Test” comparison chart.6 (Blue Buffalo “respectfully disagreed” with the NARB’s findings.)
Pot, Meet Kettle
But here’s where things get interesting. In September, a month after the NARB made its recommendations to Blue Buffalo, the NAD found that Hill’s Pet Nutrition – the original complainant against Blue Buffalo, whose complaint preceded the Purina lawsuit against Blue Buffalo -- had violated the procedures that govern the advertising industry’s system of self-regulation.
It seems Hill’s tried to use the NAD/NARB decisions on Blue Buffalo’s advertising for its own gain. According to PetfoodIndustry.com:
“Following completion of the [Blue Buffalo] appeal, Hill’s public relations firm, Burson-Marsteller, sent an ‘article starter kit’ to certain bloggers that included a ‘sample blog post,’ a ‘fact sheet’ on Hill’s products and a series of links to the NAD and NARB press releases and articles written about the Hill’s/Blue Buffalo dispute.”
That’s pretty underhanded don’t you think? First Hill’s files a challenge against Blue Buffalo with the NAD, then tries to use the NAD/NARB decision to promote its own products while disparaging Blue Buffalo products. NAD members, and Hill’s is one, agree at the outset that they will not use NAD/NARB decisions for promotional purposes, so Hill’s was in clear violation of the agreement.
Follow the Money
It’s obvious both Hill’s and Purina would very much like to stop Blue Buffalo’s advertising claims. Originally, Hill’s worked behind the scenes, using the NAD to try to silence Blue, while Purina took their fight to the U.S. Federal District Court as well as the court of public opinion. But with this latest maneuver by Hill’s with their “article starter kit” for bloggers, both pet food giants are looking a little, shall we say… desperate. They’re also opening themselves up to closer scrutiny of their own products and advertising claims.
As I mentioned in an earlier article, it’s important to follow the money in cases like this to understand what might motivate the actions taken by Purina and Hill’s. According to The Seattle Times, Purina’s lawsuit against Blue Buffalo "… is essentially a fight over the upper tier of the pet-food market — the fastest-growing segment of the $23 billion industry."7
According to industry experts, almost half that $23 billion is spent on premium pet food, which includes Blue Buffalo products. In addition, the premium pet food market is expected to show tremendous growth over the next five years. Blue has only been around a dozen years, but has already taken a sizable bite out of the U.S. pet food market. This is likely the reason behind the Hill’s complaint to the NAD and their subsequent “outreach” to bloggers, as well as Purina’s lawsuit against a much smaller, much younger upstart competitor.