Appellate Case: 24-3185 Document: 51-1 Date Filed: 07/14/2026 Page: 1
FILED
United States Court of Appeals
PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS July 14, 2026
Christopher M. Wolpert
FOR THE TENTH CIRCUIT Clerk of Court
KETONATURAL PET FOODS, INC.,
individually and on behalf of all others
similarly situated,
Plaintiff - Appellant,
v. No. 24-3185
HILL’S PET NUTRITION, INC., a
subsidiary of Colgate-Palmolive Co.,
Defendant - Appellee.
Appeal from the United States District Court
for the District of Kansas
(D.C. No. 2:24-CV-02046-KHV-ADM)
Thomas H. Burt (Kath M. McGuire, with him on the briefs), Wolf Haldenstein Adler Freeman & Herz, LLP, New York, New York, for Plaintiff-Appellant.
Stanley J. Panikowski, DLA Piper LLP, San Diego, California (Melissa A. Reinckens, DLA Piper LLP, San Diego, California, and David M. Horniak, DLA Piper LLP, Washington, D.C., with him on the brief) for Defendant-Appellee.
Before TYMKOVICH, PHILLIPS, and McHUGH, Circuit Judges.
TYMKOVICH, Circuit Judge.
KetoNatural Pet Foods filed a class action against a competing pet food company,
Hill’s Pet Nutrition, for false advertising under the Lanham Act. Hill’s produces pet food
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that contains grain; KetoNatural’s pet food is grain free. KetoNatural alleged that Hill’s
and its partner veterinarians and non-profit organizations made false statements that
grain-free pet food is linked to a higher risk of canine heart disease. KetoNatural claimed
that Hill’s, the veterinarians, and the non-profits conspired to falsely disparage grain-free
pet food to harm KetoNatural’s sales.
The district court dismissed KetoNatural’s complaint for failure to state a
claim under Federal Rule of Civil Procedure 12(b)(6). It held that KetoNatural failed
to plausibly allege two elements of a Lanham Act claim: (1) that the challenged
statements were commercial speech, and (2) that the challenged statements were
literally false. We conclude that the district court erred in part. KetoNatural plausibly
alleged that some statements by Hill’s were commercial speech that was false. The
challenged statements by the veterinarians and non-profits, however, were not
commercial speech.
Exercising our jurisdiction under 28 U.S.C. § 1291, we AFFIRM in part and
REVERSE in part, and we REMAND for proceedings consistent with this opinion.
I. Background
A. Factual Background
Because we review the complaint at the motion-to-dismiss stage, we take the
factual allegations from the complaint as true. See SEC v. Shields, 744 F.3d 633, 640
(10th Cir. 2014).
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1. The Parties and Alleged Co-Conspirators
Hill’s is one of the largest and oldest American pet food companies. It primarily
sells complete-diet pet food that contains grain as a major ingredient. Hill’s and two
other pet food companies dominate the market for “traditional” grain-containing
complete-diet pet food in the United States. Before Hill’s’ sales were undermined by the
non-traditional pet food boom, Hill’s was the third-largest seller of complete-diet dog
food in the United States. KetoNatural is a startup that produces and sells grain-free pet
food. KetoNatural alleges that when Hill’s’ sales began to fall, it conspired with several
veterinarians and two ostensibly independent non-profits to publicize the connection
between grain-free diets and dilated cardiomyopathy, a deadly canine heart disease. 1
As a marketing strategy, Hill’s has forged relationships with veterinary
professionals. It proclaims itself the “#1 Vet-Recommended Brand.” App. 21. To
ensure veterinary patronage, Hill’s offers free continuing-education courses and literature
to veterinarians and has partnered with veterinarian researchers to support its marketing.
In return, Hill’s provides partner veterinarians with financial support and promotes their
work through its website. Hill’s also funds research at various veterinary schools where
partner veterinarians are located.
In addition to directly funding veterinarians, Hill’s maintains connections to the
larger veterinary world by funding two non-profits that promote animal welfare. Morris
1
The parties’ briefing and many of the challenged statements refer to the disease as “DCM,” but for readability we refer to it as “canine heart disease.”
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Animal Foundation funds veterinary research projects and institutions, including the
projects and institutions of the alleged co-conspirator veterinarians. And the Mark
Morris Institute contributes to veterinary education by producing textbooks, continuing
education courses, and course materials. Hill’s’ employees and directors have served on
the boards of both organizations.
KetoNatural alleges that Hill’s conspired with its partner veterinarians and
non-profits to paint a false picture of the dangers of KetoNatural’s grain-free pet food.
2. The Alleged False-Statements Campaign
As the grain-free pet food market gained popularity in the United States in the
early 2010’s, Hill’s’ market share declined, falling by more than 20% from 2014 to 2017.
Though Hill’s had long been the third-largest seller of complete-diet dog food in the
United States, it fell to fourth behind a non-traditional dog food company. Recognizing
its financial decline, Hill’s embarked on a marketing strategy to disparage all
non-traditional pet foods. It did this by fabricating a link between non-traditional pet
food—called “BEG” pet food—and canine heart disease. BEG pet foods are those that
are produced by small “boutique” companies, made from “exotic” ingredients, or are
“grain-free.” 2
2
According to the complaint, the BEG category is not unified by a single nutritional quality. App. 64. Boutique refers to pet food produced by a company smaller than the three well-established grain-containing pet food companies, even if that pet food has the same ingredients as Hill’s. Exotic refers to pet food containing various ingredients that apply to every pet food save the three traditional graincontaining ones. Grain-free is self-explanatory. These three categories cover the
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KetoNatural alleges that because of Hill’s’ targeted marketing campaign, Hill’s’
revenues grew by more than 50% from 2018 to 2022. Sales in the BEG industry, by
contrast, suffered the opposite fate. In 2018, for example, BEG sales were growing at
over 8% annually. But after the alleged disparagement campaign, BEG sales reversed
and began to decrease by nearly 6% per year. KetoNatural alleges that its pet food sales
suffered a similar fate. 3
KetoNatural alleges that Hill’s and its co-conspirators embarked on a campaign to
violate the Lanham Act by making, orchestrating, and publicizing a number of false
statements that disparaged BEG pet food like KetoNatural’s. The statements generally
fall into the categories below:
First, Hill’s’ webpages and links. Hill’s claimed on its website that BEG diets
were connected to canine heart disease and linked to veterinarians’ blog posts stating the
same.
Second, Hill’s’ veterinary education materials. Hill’s offered educational
materials and continuing education courses to veterinarians on its website that similarly
asserted the false link.
breadth of the complete-diet pet food industry save that of Hill’s and the two other traditional pet food companies.
KetoNatural did not provide revenue information in its complaint for this
3
period, but it asserts that its injuries are typical of the BEG industry. It intends to prove the damages caused by Hill’s’ marketing campaign at trial.
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Third, the veterinarians’ public statements. The veterinarians reported to the Food
and Drug Administration a spike in canine heart disease in dogs eating BEG diets, and
the FDA announced an investigation into a potential link between the two. The
veterinarians publicized this FDA investigation into a link through several media
appearances. Because of the veterinarians’ efforts, the FDA investigation made a splash. 4
But after four years of investigation, the FDA never established a correlation between
BEG diets and an increased risk of canine heart disease.
Fourth, the veterinarians’ scientific publications. The veterinarians published
studies in scientific journals with misleading titles and abstracts, which led readers to
believe that BEG diets were linked to the disease.
Fifth, the veterinarians’ blogs. The veterinarians mischaracterized those same
studies’ findings in blog posts, again misleading readers to believe that BEG diets were
linked to canine heart disease.
Sixth, a Facebook page and associated website promoting traditional pet food.
Hill’s and the veterinarians moderated and controlled a Facebook group on dietassociated pet diseases that had over 129,000 members. The moderators published
statements affirming the link between BEG diets and canine heart disease and deleted all
comments contradicting the correlation. The moderators also created a public website to
4
KetoNatural also believes that the veterinarians submitted cherry-picked information to the FDA. For purposes of its Lanham Act claim, however, KetoNatural challenges the veterinarians’ speech following the FDA announcement, not the prior communications prompting the FDA investigation.
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spread the notion that BEG diets were correlated with canine heart disease and suggesting
donations to the institutions run by co-conspirator veterinarians.
Seventh, statements by the non-profits. Both the Morris Animal Foundation and
the Mark Morris Institute propagated misstatements by funding research of the
veterinarians, publishing the work on their websites, and disseminating the false
information to the broader veterinary community through educational initiatives.
Finally, independent veterinarians’ statements. Indoctrinated by the conspiracy’s
educational efforts, these unaffiliated veterinarians informed pet owners about the link,
causing them to stop purchasing BEG pet food.
B. Procedural Background
KetoNatural filed two claims against Hill’s: (1) false advertising in violation of the
Lanham Act, and (2) conspiring to violate the Act in violation of Kansas’s civil
conspiracy law. KetoNatural claims that Hill’s is liable not only for its own Lanham Act
violations, but that Hill’s is also vicariously liable for its co-conspirators’ false statements
through the alleged civil conspiracy.
The district court dismissed KetoNatural’s Lanham Act claim under Rule 12
for two independent reasons: it concluded that (1) the challenged statements were not
commercial speech, and that (2) they were not literally false. 5 As to the first reason,
the court concluded that academic articles categorically cannot be commercial speech
5
The district court passed on deciding whether Rule 9(b) or 12(b)(6) applies to Lanham Act claims because it concluded that KetoNatural failed the lower standard supplied by Rule 12.
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because they are akin to opinions, which are protected speech. The court found that
the remaining categories of speech were not commercial speech because they did not
propose a transaction to purchase Hill’s’ products.
Second, the district court held that KetoNatural did not allege that the
challenged statements were literally false under the Lanham Act. It found fatal that
KetoNatural did not allege facts proving the negative—that BEG diets are not linked
to canine heart disease. The district court considered but rejected applying an
inference that would permit KetoNatural to show that the challenged “science proves
this link” claims were literally false by showing that no science affirmatively proved
the link.
Because the district court dismissed KetoNatural’s Lanham Act claim, it also
dismissed the derivative civil conspiracy claim. Kansas civil conspiracy requires a
predicate independent wrong, and KetoNatural had alleged no wrong besides the
failed Lanham Act claim.
II. Discussion
KetoNatural contends that the district court erred in dismissing its Lanham Act
and civil conspiracy claims against Hill’s. It claims it plausibly alleged commercial
speech on the part of Hill’s and its co-conspirators, and also plausibly alleged
literally false speech.
A. Legal Framework
We review a district court’s grant of a motion to dismiss for failure to state a
claim de novo. McAuliffe v. Vail Corp., 69 F.4th 1130, 1143 (10th Cir. 2023). To
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survive a motion to dismiss under Rule 12(b)(6), “a complaint must contain ‘only
enough facts to state a claim to relief that is plausible on its face.’” Chilcoat v.
San Juan Cnty., 41 F.4th 1196, 1207 (10th Cir. 2022) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). This court “accept[s] as true all well-pleaded
factual allegations in the complaint and view[s] them in the light most favorable to
the plaintiff.” Safe Streets All. v. Hickenlooper, 859 F.3d 865, 878 (10th Cir. 2017)
(citation modified).
The Lanham Act prohibits “false or misleading representation[s] of fact” made
“in commercial advertising or promotion.” 15 U.S.C. § 1125(a)(1). The provision
states:
Any person who, on or in connection with any goods or services, or any
container for goods, uses in commerce any word, term, name, symbol, or
device, or any combination thereof, or any false designation of origin,
false or misleading description of fact, or false or misleading
representation of fact, which—
(A) is likely to cause confusion, or to cause mistake, or to deceive
as to the affiliation, connection, or association of such person with
another person, or as to the origin, sponsorship, or approval of his
or her goods, services, or commercial activities by another person,
or
(B) in commercial advertising or promotion, misrepresents the
nature, characteristics, qualities, or geographic origin of his or her
or another person’s goods, services, or commercial activities,
shall be liable in a civil action by any person who believes that he or she
is or is likely to be damaged by such act.
Id.
To state a claim, KetoNatural must show “(1) that [Hill’s] made material false
or misleading representations of fact in connection with the commercial advertising
or promotion of its product; (2) in commerce; (3) that are either likely to cause
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confusion or mistake as to (a) the origin, association or approval of the product with
or by another, or (b) the characteristics of the goods or services; and (4) injure the
plaintiff.” Sally Beauty Co., Inc. v. Beautyco, Inc., 304 F.3d 964, 980 (10th Cir.
2002) (citation modified).
In turn, to qualify as a representation made in “commercial advertising or
promotion,” we apply a four-part inquiry. The false representation must be:
“(1) commercial speech; (2) by a defendant who is in commercial competition with
plaintiff; (3) for the purpose of influencing consumers to buy defendant’s goods or
services . . . . [and it] (4) must be disseminated sufficiently to the relevant purchasing
public to constitute advertising or promotion within that industry.” Proctor &
Gamble Co. v. Haugen, 222 F.3d 1262, 1273–74 (10th Cir. 2000) (citation
modified). 6 Whether a representation is “commercial speech” under the Lanham Act
6
Several other circuits have adopted this four-part test for “commercial advertising or promotion” in full. See Podiatrist Ass’n, Inc. v. La Cruz Azul De Puerto Rico, Inc., 332 F.3d 6, 19 (1st Cir. 2003); Seven-Up Co. v. Coca-Cola Co., 86 F.3d 1379, 1384 (5th Cir. 1996); Coastal Abstract Serv., Inc. v. First Am. Title Ins. Co., 173 F.3d 725, 735 (9th Cir. 1999); Suntree Techs., Inc. v. Ecosense Int’l, Inc., 693 F.3d 1338, 1349 (11th Cir. 2012). Others have adopted it in part. See Fashion Boutique of Short Hills, Inc. v. Fendi USA, Inc., 314 F.3d 48, 57–58 (2d Cir. 2002) (adopting elements one, three, and four). For a fuller discussion of our sister circuits’ case law on this test, see generally 4 J. Thomas McCarthy, McCarthy on Trademarks and Unfair Competition § 27:71 (5th ed., June 2026 update).
Both the Second and Seventh Circuits have noted that the Lanham Act’s
statutory inquiry applies separately to “advertising” and “promotion.” Fashion Boutique, 314 F.3d at 57 (“Although advertising is generally understood to consist of widespread communication through print or broadcast media, ‘promotion’ may take other forms of publicity used in the relevant industry, such as displays at trade shows and sales presentations to buyers.”); Neuros Co., Ltd. v. KTurbo, Inc., 698 F.3d 514,
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is informed by Supreme Court First Amendment commercial speech jurisprudence,
id. at 1274, since non-commercial speech on matters of public concern, even false
speech, is protected. See United States v. Alvarez, 567 U.S. 709, 722 (2012)
(“reject[ing] the notion that false speech should be in a general category that is
presumptively unprotected” by the First Amendment).
The First Amendment differentiates between “core” and non-core commercial
speech. Core commercial speech is “speech which does ‘no more than propose a
commercial transaction.’” Bolger v. Youngs Drug Prods. Corp., 463 U.S. 60, 66
(1983) (quoting Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council, Inc.,
425 U.S. 748, 762 (1976)). In contrast, non-core commercial speech does more than
merely propose a commercial transaction; it broadly promotes or advertises a product
or good. See Robert Post, The Constitutional Status of Commercial Speech,
48 UCLA L. Rev. 1, 5 (2000) (“[S]ometimes advertising is deemed to be public
discourse rather than commercial speech, and sometimes expression that would not
ordinarily be regarded as advertising is included within the category of commercial
speech. The boundaries of the category are thus quite blurred.”).
The Court has identified three characteristics that “strong[ly] support”
identifying a statement or claim as non-core commercial speech:
522 (7th Cir. 2012) (“If ‘advertising or promotion’ just meant ‘advertising,’ then ‘promotion’ would do no work in the statute. . . . [T]here are industries in which promotion—a systematic communicative endeavor to persuade possible customers to buy the seller’s product—takes a form other than publishing or broadcasting.”).
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(1) it is an advertisement,
(2) it references a specific product, and
(3) it is made with economic motivation.
Bolger, 463 U.S. at 66–67. None of these characteristics alone compel the
conclusion that the speech is commercial. 7
Following Bolger’s example, courts have taken a holistic and functional
approach to recognizing non-core commercial speech. Courts have recognized that
even product disparagement can be actionable non-core commercial speech. See,
e.g., Edward Lewis Tobinick, MD v. Novella, 848 F.3d 935, 950–51 (11th Cir. 2017)
(applying the Bolger test to defendant’s disparaging articles to determine whether the
7
In Bolger, a contraceptives manufacturer began a marketing campaign
issuing mass mailings to members of the public. It mailed flyers and pamphlets promoting its products and others discussing the desirability and availability of contraception in general. The Supreme Court determined that each of the flyers and pamphlets was commercial speech, even those that promoted contraception in the abstract. Taking the parties’ concession that the mailed materials were advertisements, the Court concluded that the flyers and pamphlets sufficiently referenced a specific product because they promoted the manufacturer’s contraception, even if by subtle marketing. Id. at 66 & n. 13. In other words, the Court determined that specific product discussion was not needed to promote the manufacturer’s products—because the manufacturer dominated the contraceptive market, even a pamphlet discussing condoms without any specific reference to the manufacturer’s product, and only a footnote reference to the manufacturer, met the core of this characteristic. Lastly, the Court recognized that the manufacturer had economic motivation to mail the flyers and pamphlets. While no characteristic alone supported treating these materials as commercial speech, their combination did. And the fact that the materials discussed issues of public importance, such as venereal disease and family planning, did not change the Court’s conclusion that the materials were commercial speech. The Court recognized that commercial speech does not become “entitled to the constitutional protection afforded noncommercial speech” by merely “link[ing] a product to a current public debate.” Id. at 68 (citation modified).
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speech was commercial for purposes of a Lanham Act claim); Podiatrist Ass’n, Inc.,
332 F.3d at 19–20 (discussing and applying commercial speech doctrine within a
Lanham Act claim to alleged disparaging remarks by insurance representatives
discrediting podiatrists). Thus, for example, we have held that a message to
distributors disseminated over voicemail that maligned the president of a competitor
company as a “Satanist” was commercial speech. We did so because the message
was sent with economic motive and functionally promoted the competing company’s
products. See Haugen, 222 F.3d at 1275. Although the disparaging speech did not
present “a classic advertising campaign,” it functioned like one. See id. at 1274–75
(citation modified); see also Procter & Gamble Co. v. Amway Corp., 242 F.3d 539,
552 (5th Cir. 2001), abrogated on other grounds by Lexmark Int’l, Inc. v. Static
Control Components, Inc., 572 U.S. 118 (2014) (determining that the same
disparaging Satanist speech at issue in Haugen, though not obviously an
advertisement, could nevertheless be commercial speech if made with economic
motivation—because the character of the speaker’s motivation determined whether
the court should consider the speech an advertisement); Ariix, LLC v. NutriSearch
Corp., 985 F.3d 1107, 1117 (9th Cir. 2021) (recognizing that a nutritional supplement
catalog that rigged ratings constituted commercial speech because the owner did so
primarily motivated by compensation from the favored company). These cases
illuminate the core of a holistic approach to identifying commercial speech. While a
speaker’s economic motivation for speech does not necessarily transform the speech
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into commercial speech, it informs whether that speech was intended to be an
advertisement and promote certain products. 8
In addition to the requirement of commercial speech, the Lanham Act requires
that the statements be false. To demonstrate that a representation is false or
misleading, the plaintiff must show that the representation is “literally false, either on
its face or by necessary implication,” or that it is “literally true but likely to mislead
or confuse customers.” 9 Vitamins Online, Inc. v. Heartwise, Inc., 71 F.4th 1222,
1235 (10th Cir. 2023) (quoting Zoller Lab’ys, LLC. v. NBTY, Inc., 111 F. App’x 978,
982 (10th Cir. 2004)). To be literally false, a statement must be unambiguous. I Dig
Texas, LLC v. Creager, 98 F.4th 998, 1009 (10th Cir. 2024). A literally false “claim
is conveyed by necessary implication when, considering the advertisement in its
entirety, the audience would recognize the claim as readily as if it had been explicitly
stated.” Zoller Lab’ys, 111 F. App’x at 982–83 (quoting Clorox Co. P.R. v. Proctor
& Gamble Com. Co., 228 F.3d 24, 35 (1st Cir. 2000)).
In cases involving commercial speech that touches on scientific or expert
opinion, courts have added a twist in considering falsity. When a statement claims it
is backed up by scientific data, courts can consider whether the underlying data in
8
The Court has made clear that economic motivation cannot alone transform speech into commercial speech. Bolger, 463 U.S. at 67 (collecting cases). Otherwise, newspapers, magazines, and books offered for sale could be considered commercial publications.
KetoNatural waived the “true but misleading” theory of false speech. See
9
Oral Argument at 4:56 (conceding failure to preserve).
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fact supports the assertion. For such a statement to be false, a plaintiff must show
that the scientific tests “d[o] not establish the proposition for which they were cited,”
or that they “were not sufficiently reliable to permit [the] conclusion” for which they
were cited. Castrol, Inc. v. Quaker State Corp., 977 F.2d 57, 63 (2d Cir. 1992); see
also Osmose, Inc. v. Viance, LLC, 612 F.3d 1298, 1309 (11th Cir. 2010). Courts call
this concept the “establishment claim doctrine” because the truth of the statement is
claimed to have been established by the underlying scientific evidence. 10
* * *
With this legal framework in mind, we turn to KetoNatural’s commercial
speech allegations.
B. Application
We start by reviewing the allegations against Hill’s and then turn to those
against the veterinarians and non-profits.
10
The Second, Third, Fourth, Seventh, Eighth, Ninth, Eleventh, and D.C.
Circuits have all adopted or applied some form of the establishment claim doctrine. See, e.g., Castrol, Inc., 977 F.2d at 63; Novartis Consumer Health, Inc. v. Johnson & Johnson-Merck Consumer Pharms. Co., 290 F.3d 578, 590 (3d Cir. 2002); C.B. Fleet Co., Inc. v. SmithKline Beecham Consumer Healthcare, L.P., 131 F.3d 430, 435 (4th Cir. 1997); BASF Corp. v. Old World Trading Co., 41 F.3d 1081, 1091 (7th Cir. 1994); Rhone-Poulenc Rorer Pharms., Inc. v. Marion Merrell Dow, Inc., 93 F.3d 511, 514–15 (8th Cir. 1996); Southland Sod Farms v. Stover Seed Co., 108 F.3d 1134, 1139 (9th Cir. 1997); Osmose, Inc., 612 F.3d at 1309; ALPO Petfoods, Inc. v. Ralston Purina Co., 913 F.2d 958, 964–65 & n.7 (D.C. Cir. 1990).
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1. Hill’s’ Speech
KetoNatural alleges that Hill’s violated the Lanham Act by disparaging its
products (1) in Hill’s’ webpages and linked webpages, and (2) through Hill’s’
veterinary education materials on its website. Hill’s argues that these challenged
statements are not commercial speech because they do not share two of the Bolger
characteristics for non-core commercial speech: they are not advertisements and do
not reference a specific product.
a. Hill’s’ Webpages and Links
KetoNatural alleges that among others, the following statements and links on
Hill’s’ website constitute commercial speech.
• In a webpage discussing protein in dog diets, Hill’s wrote that “trends”
such as “grain-free, raw, vegan, farm-to-table, plant-based, or homemade”
dog foods can “pose health risks for dogs.” App. 78.
• On that same webpage, “health risks for dogs” hyperlinked to an alleged
co-conspirator veterinarian’s blog article titled, “A Broken Heart: Risk of
Heart Disease in Boutique or Grain-Free Diets and Exotic Ingredients,”
and the article contained numerous allegations of a link between canine
heart disease and BEG diets. App. 71, 78. For example, the article
asserted that “[w]hat seems to be consistent is that [DCM] does appear to
be more likely to occur in dogs eating boutique, grain-free, or exoticingredient diets.” App. 73.
• And a separate Hill’s webpage titled “Cardiomyopathy in Dogs: What You
Need to Know,” linked to a page where another alleged co-conspirator
veterinarian states that “[t]hese boutique diets tend to come from smaller
manufacturers that may not have the nutritional expertise and resources to
ensure quality control that the larger, established companies have . . . .
We are not yet seeing DCM in smaller dogs fed grain-free diets produced
by large-scale manufacturers.” App. 104–05.
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We begin with the first Bolger characteristic—whether these statements are
advertisements. We readily concede that they do not present themselves as a “classic
advertising campaign,” but they need not do so to promote Hill’s products. Haugen,
222 F.3d at 1274. As some circuits have noted, economic motivation to sell products
informs whether the speaker intended the speech to function as an advertisement.
See, e.g., Ariix, 985 F.3d at 1116 (“While such social media posts may not have the
indicia of a traditional advertisement, there can be little doubt that these paid posts
are in fact advertisements.”); Amway, 242 F.3d at 552 (“Certainly the repetition of
the rumor via [a telephone messaging system] was not an advertisement in the classic
sense, but whether it could be considered as a negative advertisement against P&G
seems to depend on . . . whether the speaker had an economic motivation for the
speech.”). 11
Next, the second Bolger characteristic—whether the statements promote a
specific product. Although these statements do not promote a particular Hill’s
product, they plausibly promote Hill’s’ grain-based pet food as safer for dogs, even
without naming Hill’s explicitly. As Bolger recognized, “a company with sufficient
control of the market for a product may be able to promote the product without
11
In any event, we need not find that these statements are advertisements to find that they still constitute commercial speech. We apply the Bolger characteristics holistically and have found that when the other two characteristics are present, the plaintiff has plausibly alleged commercial speech. Haugen, 222 F.3d at 1275.
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reference to its own brand names.” Bolger, 463 U.S. at 66 n.13. As in Bolger, Hill’s
maintains a coveted spot in this market. It is one of three companies that dominate
the traditional pet food market in the United States. As a result, its disparagement of
non-traditional, BEG pet food is a tacit promotion of its own pet food. And the fact
that the statements promote Hill’s’ brand, rather than a specific product, does not
remove their commercial character. See, e.g., Jordan v. Jewel Food Stores, Inc.,
743 F.3d 509, 518 (7th Cir. 2014) (“An advertisement is no less ‘commercial’
because it promotes brand awareness or loyalty rather than explicitly proposing a
transaction in a specific product or service.”). Bolger itself recognized that brand
promotion met this second characteristic when analyzing the informational
contraception pamphlet issued by the leader in the contraceptive market.
Finally, as to the third Bolger characteristic—these statements were made with
economic motivation to bolster Hill’s’ sales. According to the complaint, Hill’s was
rapidly losing market share to BEG-producing pet food companies. It had even slid
to fourth in the complete-diet pet food market. And so, working with veterinarians
and its own non-profits, it orchestrated a media campaign to turn customers back
towards the big three “traditional” pet food companies. Hill’s appeared to succeed,
swiftly regaining market share. Taking the complaint’s allegations as true, Hill’s had
clear economic motivation to make statements like these to return the market to
traditional pet food companies. Cf. Porous Media Corp. v. Pall Corp., 173 F.3d
1109, 1120–21 (8th Cir. 1999) (concluding that the speaker’s financial concerns
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associated with a direct competitor’s product evidenced the speech’s economic
motivation).
The same is true of the statements linked from Hill’s’ website. For example,
Hill’s’ webpage stated that “trends” such as “grain-free, raw, vegan, farm-to-table,
plant-based, or homemade” dog foods can “pose health risks for dogs,” and
hyperlinked “health risks for dogs” to a veterinarian’s blog bolstering the alleged
false link. App. 78. These and similar hyperlinks are plausibly commercial speech
because by their presence on Hill’s’ website, they promote Hill’s as a non-BEG
alternative—a safer dog food. Hill’s contends that any disparaging statements on the
linked webpages are not commercial speech because they make no mention of Hill’s
and its products. And analyzed alone, the speech on the linked webpages is not. But
hyperlinks to the relevant webpages are embedded in Hill’s’ website. Because of the
hyperlinks’ location and the fact that the linked pages disparage BEG dog foods, the
linked webpages can plausibly be understood to promote Hill’s’ products. See
Tobinick, 848 F.3d at 951 (explaining that “a restaurant or movie review or a product
report on its own is not commercial speech under the Lanham Act . . . but can be
transformed into commercial speech when, for instance, a restaurant posts the review
in its window” (citation modified)).
KetoNatural has plausibly alleged that some statements and links on Hill’s’
webpages are commercial speech.
KetoNatural has also plausibly alleged that these statements are literally false.
As we discussed above, the establishment claim doctrine applies when a plaintiff
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challenges as literally false commercial speech’s explicit or implicit reliance on
scientific data to prove the truth of its claims. To prevail on these claims, a plaintiff
must show that the scientific studies relied on either are not sufficiently reliable to
prove their own conclusions or that the scientific studies do not establish the
assertion for which they are cited. Castrol, Inc., 977 F.2d at 63. We find that
KetoNatural has plausibly alleged that the supporting scientific studies do not
establish the statements’ assertions.
Take the following example from above: a link titled “health risks for dogs” on
Hill’s’ webpage that leads to the following on a veterinarian’s blog: “[w]hat seems to
be consistent is that [DCM] does appear to be more likely to occur in dogs eating
boutique, grain-free, or exotic-ingredient diets.” App. at 73, 78. This statement
permits an establishment claim because it establishes a correlation between the diet
and the disease by implicitly relying on some independent, objectively verifiable
study showing consistent and higher rates of canine heart disease in BEG-eating
dogs. And it is plausibly literally false because KetoNatural alleges that no study
supports the correlation. 12
12
KetoNatural’s complaint alleges that the relevant studies Hill’s and the veterinarians reference, or may have relied on, suffer from one of at least four infirmities. These structural infirmities led Hill’s to misrepresent the findings of the studies. See App. 90–92. KetoNatural explains how these studies do not show (1) that dogs with canine heart disease who ate BEG diets experienced better clinical outcomes with a diet change, because there were uncontrolled variables in the study; (2) that dogs with canine heart disease who ate BEG diets lived longer with a diet change away from BEG foods, when the cited studies do not directly compare life expectancy for dogs who switched from BEG diets to traditional pet foods and those
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In short, KetoNatural has successfully alleged that this category of Hill’s’
statements plausibly includes literally false commercial speech.
b. Hill’s Veterinary Education Materials
Likewise, KetoNatural has plausibly alleged that at least some of the
veterinary education materials on Hill’s’ website constitute commercial speech.
Hill’s’ website has a section intended for veterinarians and veterinarian technicians
that requires account creation. The complaint alleges:
• The password-protected section offers a 90-minute presentation on
“Navigating the Pet Food Aisle.” One slide titled, “Premium Priced . . .
may not be premium quality,” states: “Diet-induced cardiomyopathy
reported since 2017 in dogs fed ‘premium’ grain-free and boutique foods.”
App. 105–06.
• In a separate presentation funded by Hill’s and posted for veterinarians, a
summary about the evidence around canine heart disease in dogs stated,
“[b]y now, most veterinary professionals understand that there’s a link
between BEG diets and atypical dog breeds developing DCM.” App. 106–
08.
In context, the posted materials plausibly (1) function as an advertisement by
disparaging BEG diets, (2) promote Hill’s’ brand, and (3) were made with economic
motivation. This conclusion is strengthened because KetoNatural has alleged that
who continued to eat BEG diets; (3) that BEG diets are linked to canine heart disease, when BEG diets are linked only with subclinical symptoms that are not proven to be correlated with canine heart disease; and (4) that BEG diets are correlated with or have caused the recent canine heart disease spike, when no incidence studies have been performed to show this. Id. As a result, KetoNatural alleges that statements that make any of these four points are “literally false” under establishment claim doctrine because the studies either “d[o] not establish the proposition for which they were cited,” or they “[a]re not sufficiently reliable to permit [the] conclusion” for which they are cited. Castrol, Inc., 977 F.2d at 63.
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Hill’s’ marketing model targets veterinarians. C.f. Haugen, 222 F.3d at 1274 (noting
that one element in determining whether speech is “commercial advertising or
promotion” under the Lanham Act is whether it was disseminated to the “relevant
purchasing public”).
Hill’s counters that these materials are purely educational and informational
and should not be treated as commercial speech. See Bolger, 463 U.S. at 68
(“A company has the full panoply of protections available to its direct comments on
public issues . . . . ”). But educational or informational speech can become
commercial when disseminated to promote the purchase of goods, as was alleged
here. See id. at 67–68 (dismissing the same argument about pamphlets discussing
venereal disease and family planning). 13 The commercial speech inquiry is fact
intensive, and viewing the allegations in the complaint holistically, we cannot
categorically conclude that Hill’s’ statements are protected educational speech.
13
See also Washington Legal Found. v. Friedman, 13 F. Supp. 2d 51, 62–65 (D.D.C. 1998), amended, 36 F. Supp. 2d 16 (D.D.C. 1999), and appeal dismissed, judgment vacated in part sub nom. Washington Legal Found. v. Henney, 202 F.3d 331 (D.C. Cir. 2000), and amended, 36 F. Supp. 2d 418 (D.D.C. 1999), and appeal dismissed, judgment vacated in part sub nom. Washington Legal Found. v. Henney, 202 F.3d 331 (D.C. Cir. 2000) (concluding that peer-reviewed journal articles and medical textbook reprints disseminated by a manufacturer to physicians promoting off-label drug uses were commercial speech); Gordon & Breach Sci. Publ’rs S.A. v. Am. Inst. of Physics, 859 F. Supp. 1521, 1544–45 (S.D.N.Y. 1994) (concluding that a comparative survey of science journals disseminated to a targeted audience of librarians that promoted defendant’s journals was commercial speech); Bracco Diagnostics, Inc. v. Amersham Health, Inc., 627 F. Supp. 2d 384, 458–63 (D.N.J. 2009) (concluding that a selected article disseminated to physicians favoring defendant’s x-ray contrast media was commercial speech).
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“[B]ecause this information is in fact supplied by [Hill’s], and because the primary
purpose for supplying the information is to encourage the purchase of [Hill’s’]
featured product, the court must conclude that the speech is ‘entitled to the qualified
but nonetheless substantial protection accorded to commercial speech.’” Washington
Legal, 13 F. Supp. 2d at 65 (quoting Bolger, 463 U.S. at 68).
We conclude that KetoNatural has plausibly alleged that Hill’s has
disseminated commercial speech through its educational materials for veterinarians.
The materials also satisfy the establishment claim doctrine. For example, a
statement discussed earlier: under the slide title, “Premium Priced . . . may not be
premium quality,” the slide states “Diet-induced cardiomyopathy reported since 2017
in dogs fed ‘premium’ grain-free and boutique foods.” App. 106. It implicitly relies
on verifiable incidence data showing that BEG diets are correlated with the canine
heart disease spike, and it satisfies the doctrine because KetoNatural alleges that no
such data exists. KetoNatural alleges that the only thing close to incidence data are
the reports to the FDA, and those were allegedly cherry-picked and manipulated by
Hill’s and other complainants.
In sum, KetoNatural has plausibly alleged that these educational statements, as
well as statements on Hill’s’ webpages and hyperlinked pages, are actionable
commercial speech.
2. Speech of the Veterinarians
KetoNatural also alleges that Hill’s is vicariously liable for the Lanham Act
violations of the alleged co-conspirator veterinarians. It alleges that these
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veterinarians violated the Lanham Act by disparaging its products in (1) public media
statements following the FDA investigation and blog posts describing their research,
(2) academic articles, and (3) a Facebook page and spinoff website, all by warning
about the link between BEG diets and canine heart disease. 14
Hill’s charges that these challenged categories of statements do not constitute
actionable commercial speech because they do not share two of the Bolger
characteristics for non-core commercial speech: they are not advertisements and do not
reference a specific product. We agree.
a. Veterinarians’ Public Media Statements and Blog Posts
KetoNatural has not plausibly alleged that the veterinarians’ public media and
blog post statements are commercial speech. Rather, these statements are FirstAmendment-protected statements on matters of public concern.
The complaint alleges, as a sample:
• In an NBC News article, “It’s Not Going Away”: Vets Still Seeing Cases of
Dog Heart Problems Linked to Grain-Free Food, a veterinarian provided
quotes including, “[t]here are most likely other pathways to heart damage
in dogs consuming BEG diets.” App. 70.
• A veterinarian wrote in her blog that a “recent increase in heart disease in
dogs eating certain types of diets [i.e., BEG diets] may shed light on the
role of diet in causing heart disease.” App. 71–72.
• And again: “[Diet-associated DCM] can improve significantly when the
diet is changed.” App. 75.
14
The district court construed KetoNatural’s complaint to also allege that Hill’s is vicariously liable for unaffiliated veterinarians’ disparaging speech. To the extent that KetoNatural did allege this, we address it last.
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• And again, in an article titled “Diet-Associated Dilated Cardiomyopathy:
The Cause is Not Yet Known But It Hasn’t Gone Away”: a veterinarian
wrote, “[m]ost dogs with diet-associated DCM have been eating
non-traditional [BEG] diets for over one year.” App. 75, 77.
These statements and similar ones perhaps implicitly disparage BEG pet food,
but in context they are too remote to be treated as commercial speech promoting
Hill’s’ products.
First, the statements in the veterinarians’ articles and blogs, without more, do
not function to promote or advertise Hill’s’ products. Like we noted above when
discussing Hill’s’ statements, none of these present themselves as a “classic
advertising campaign.” Haugen, 222 F.3d at 1274. But unlike Hill’s’ statements, the
veterinarians’ statements are too attenuated from Hill’s to reflect Bolger’s remaining
characteristics of non-core commercial speech.
Neither do the statements meet the second Bolger characteristic: that they
promote Hill’s’ products or brand. The excerpts do not plausibly promote Hill’s’
brand because they are untethered from Hill’s: Hill’s is not the speaker, nor do the
excerpts mention Hill’s. The speaker matters. The speaker provides context to the
consumer that the speech may be commercial. And unlike the unique market position
of Hill’s and that of the contraceptive manufacturer in Bolger, who both occupied
“sufficient control of the market,” such that they “may be able to promote the product
without reference to [their own] brand names,” the veterinarians do not occupy the
same position. See Bolger, 463 U.S. at 66 n.13. No similar context bridges the
inferential gap tying their speech disparaging BEG foods to speech promoting Hill’s’
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products. See id.; see also Tobinick, 848 F.3d at 950–51 (concluding that defendant’s
articles criticizing plaintiff doctor’s dubious medical treatments were not commercial
speech in part because they did not mention defendant doctor’s medical practice or
services).
Finally, KetoNatural does not plausibly allege that the veterinarians made
these statements with economic motivation. Even granting that the named
veterinarians conspired with Hill’s to disparage BEG dog food, KetoNatural does not
plead sufficient factual allegations that the veterinarians made these statements in
direct expectation of pecuniary gain from Hill’s. See Ariix, 985 F.3d at 1116
(explaining that the third Bolger factor “asks whether the speaker acted primarily out
of economic motivation, not simply whether the speaker had any economic
motivation.”); Amway, 242 F.3d at 552–53 (“The question whether an economic
motive existed is more than a question whether there was an economic incentive for
the speaker to make the speech; the Bolger test also requires that the speaker acted
substantially out of economic motivation.”).
KetoNatural has alleged merely that the veterinarians received research
funding from Hill’s, either directly or indirectly through their universities. It did not
allege that research funding was contingent on the statements made in these blogs
and social media appearances, nor did it allege that the research funding depended on
the topic or result of the research itself. Cf. Ariix, 985 F.3d at 1117–18 (finding that
plaintiff plausibly alleged that the supplement guide was economically motivated to
rig ratings because it pleaded facts of a hidden marketing arrangement between the
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guide and the preferred company). For a court to infer that the veterinarians’ speech
was economically motivated, KetoNatural must at least plead facts that the
veterinarians were compensated or otherwise received a quid pro quo from Hill’s for
their speaking and writing. 15 But KetoNatural failed to do so. Simply put, the
economic motive KetoNatural urges is too attenuated from Hill’s and its products to
render the veterinarians’ speech commercial.
Because “Congress did not wish to extend federal Lanham Act liability to
speech that is subject to broader general First Amendment protection than is
commercial speech,” no liability lies. Boule v. Hutton, 328 F.3d 84, 95 (2d Cir.
2003) (Calabresi, J., concurring). The district court correctly dismissed
KetoNatural’s claim for this category of statements.
b. Veterinarians’ Academic Articles
KetoNatural also fails to plausibly allege that the veterinarians’ academic
articles are commercial speech. The district court correctly recognized that as a
general matter, scientific articles do not include actionable commercial speech.
See, e.g., Pacira BioSciences, Inc. v. Am. Soc’y of Anesthesiologists, Inc., 63 F.4th
240, 246–48 (3d Cir. 2023) (discussing that scientific conclusions are like opinions
and thus not actionable speech); Conformis, Inc. v. Aetna, Inc., 58 F.4th 517, 534
15
The complaint alleges that one veterinarian, Dr. Freeman, gave sponsored lectures for Hill’s, but it does not allege that those sponsored lectures included speech disparaging BEG diets or that compensation was contingent on her speaking on that topic.
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(1st Cir. 2023) (recognizing the force of this principle). “[T]o the extent a speaker or
author draws conclusions from non-fraudulent data, based on accurate descriptions of
the data and methodology underlying those conclusions, on subjects about which
there is legitimate ongoing scientific disagreement, those statements are not grounds
for a claim of false advertising under the Lanham Act.” ONY, Inc. v. Cornerstone
Therapeutics, Inc., 720 F.3d 490, 498 (2d Cir. 2013) (holding that scientific
conclusions of this kind are non-actionable opinions). KetoNatural’s allegations of
false statements within these academic articles fall squarely within this accepted rule.
We affirm the district court’s dismissal of KetoNatural’s claim with respect to this
category of challenged speech.
c. The Facebook Page and Website
KetoNatural has likewise failed to plausibly allege that the Facebook page and
associated website engaged in commercial speech.
KetoNatural alleged that Hill’s and veterinarians started a Facebook page that,
at the time of suit, was titled, “Diet-Associated Dilated Cardiomyopathy (DCM) in
Dogs.” And it alleged that the moderators of the Facebook page started a spinoff
website publishing similar speech. Along with deleting comments that were
“contrary to the science” that the page held as tenets, 16 the Facebook page
disseminated the following speech:
16
The act of deleting posts is editorializing, which is speech, and thus arguably commercial speech. C.f. Moody v. NetChoice, LLC, 603 U.S. 707, 740 (2024) (stating that when social media platforms “decide which third-party content those
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• “[W]e only know what broad diet types have been associated with the
disease: those that are high in pulse legumes, such as peas and lentils, those
that are grain-free, those that are produced by small manufacturers with
heavier focus on marketing than research.” App. 111.
• “What we know so far is that disease [DCM] is disproportionately
associated with grain-free diets or diets high in pulse legumes, such as peas
or lentils, particularly when made by manufacturers with a small market
share.” App. 112.
Additionally, the moderators of the DCM Facebook group published similar
speech on the public-facing website:
• “DCM is caused by boutique brands, exotic proteins, or grain-free or a
combination thereof . . . .” App. 116.
• And again, “[t]he FDA has identified a worrying correlation between grainfree diets and dilated cardiomyopathy.” App. 115.
Similar to the analysis of the veterinarians’ public media statements and blog
posts, the Facebook page and associated website’s statements are too attenuated from
Hill’s to be understood as commercial speech. Facially, the statements are not
advertisements. Nor do they promote a specific product or brand. Even if the
statements do disparage BEG dog foods, a consumer would not interpret them to
promote Hill’s’ dog food. See Tobinick, 848 F.3d at 951 (explaining that restaurant
reviews, product reports and the like are not commercial speech until used by an
owner to promote his own goods or services). Lastly, we do not know who the
Facebook moderators are, and most importantly, how they participated in and were
feeds will display, or how the display will be ordered and organized, they are making expressive choices”).
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economically motivated by the alleged conspiracy. KetoNatural admitted as much.
It alleged only that the moderators “work[ed] closely” with a veterinarian—but did
not otherwise allege involvement in the conspiracy. App. 111. Without more,
KetoNatural has not plausibly alleged that this category of statements includes
commercial speech.
d. Veterinarians’ Statements to Pet Owners
Finally, in its complaint, KetoNatural implies that several non-affiliated
veterinarians educated by Hill’s’ efforts propagated the connection between canine
heart disease and BEG diets. But there is no plausible allegation that any of these
veterinarians’ statements promoted Hill’s’ brand or were economically motivated.
To the extent that KetoNatural alleged that Hill’s is vicariously liable for the
statements of non-affiliated veterinarians, we affirm the district court’s dismissal of
this claim.
3. The Non-Profits
The same analysis applies to the speech of the non-profits. The complaint
does not plausibly allege that the Morris Animal Foundation or the Mark Morris
Institute engaged in commercial speech for Lanham Act purposes. 17 For example, it
alleges that the Morris Animal Foundation
17
The complaint does not allege any specific commercial speech disseminated by the Mark Morris Institute in its veterinary education materials. Thus, we affirm the district court’s conclusion that KetoNatural failed to plausibly allege commercial speech by the Institute.
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• posted information on its website about “diet associated DCM,” and quotes
a veterinarian saying, “[h]ome-cooked diets have been implicated in this
problem, as well as small batch, boutique dog foods.” App. 78–79.
Repeating the same Bolger analysis applied to the veterinarians, this speech is
facially not an advertisement, and it does not reference a specific product or brand.
See Bolger, 463 U.S. at 66–67. Nor does KetoNatural allege that the Foundation
spoke motivated by direct economic gain from Hill’s. See id. Allegations that Hill’s
funds the Foundation and influences its executive decisions cannot satisfy the quid
pro quo necessary to successfully allege that Hill’s’ gains economically motivated
the Foundation to make such statements. KetoNatural has failed to allege that the
non-profits engaged in commercial speech promoting Hill’s’ pet food.
* * *
In sum, KetoNatural has plausibly alleged under Rule 12(b)(6) that Hill’s has
engaged in commercial speech, and that each actionable speech category includes
literally false statements. Thus, we affirm the district court’s dismissal regarding
non-actionable speech categories and reverse as to the remaining categories. We
remand to the district court to determine two issues: (1) whether Rule 9(b) or
12(b)(6) applies to Lanham Act claims, and (2) whether KetoNatural has successfully
pleaded a Lanham Act claim under the appropriate pleading standard. 18
18
The district court passed on deciding whether to apply the particularity pleading standard for a Lanham Act claim under Rule 9. Because we conclude that KetoNatural survives dismissal under Rule 12(b)(6), the appropriate pleading standard is once again relevant. We remand the question of the appropriate standard to the district court for it to decide in the first instance.
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C. Kansas Civil Conspiracy
KetoNatural also sued Hill’s for civil conspiracy under Kansas law. Hill’s
contends that a Lanham Act violation cannot serve as the predicate violation of law
required for a civil conspiracy claim. See Stoldt v. City of Toronto, 678 P.2d 153,
161 (Kan. 1984) (explaining that “[c]onspiracy is not actionable without commission
of some wrong giving rise to a cause of action independent of the conspiracy”).
We need not resolve this question. The district court dismissed the civil
conspiracy claim because it dismissed the underlying Lanham Act claim, but we
reverse and remand the Lanham claim respecting Hill’s’ statements. And because we
remand on the Lanham Act claim, we must also remand on the contingent Kansas
civil conspiracy claim. SEC v. Cochran, 214 F.3d 1261, 1267 (10th Cir. 2000) (“As
a general rule . . . we do not consider issues not passed on below, and it is appropriate
to remand the case to the district court to first address an issue.”). We remand to the
district court to determine the appropriate pleading standard, whether Hill’s’ alleged
Lanham violation can serve as a predicate violation for civil conspiracy, and whether
KetoNatural has sufficiently alleged the remaining elements.
III. Conclusion
For the foregoing reasons, we affirm in part, reverse in part, and remand for
proceedings consistent with this opinion.
32