Ninth Circuit Upholds Dismissal of Made in USA Suits Over Pet Treats With Imported Ingredients

The Ninth Circuit on March 13, 2018, affirmed the dismissal of a consumer’s Made in USA suits against Tyson Foods and Big Heart Pet Brands, holding that California’s amended origin-labeling law governed her claims.

The claims

Susan Fitzpatrick alleged that pet food labeled “Made in USA,” including Tyson’s Nudges Grillers dog treats, contained ingredients sourced abroad, such as tapioca and vitamin, mineral and amino acid packs. She sought class-action status, with a $5 million claim against Tyson.

Which law applies

When she bought the products in 2014 and 2015, California Business and Professions Code section 17533.7 barred Made in USA labels on goods with any part “entirely or substantially” made abroad. An amendment effective January 1, 2016, allowed the claim if foreign content made up no more than 5 percent of the final wholesale value, or up to 10 percent if the manufacturer shows it cannot make or obtain those parts in the USA.

The district court dismissed both suits in 2016. In a memorandum opinion, the Ninth Circuit agreed that the current statute applies. It said the legislature had shifted “from strict liability to allow certain previously prohibited conduct,” amounting to a statutory repeal, and that Fitzpatrick had no vested rights in her claims. Her claims under other California consumer-protection laws also failed because the amended statute expressly permits such labels.

FAQ

What did the court decide?

That California’s amended Made in USA statute, not the stricter earlier version, governed the claims, so the dismissals stood.

What does the amended law allow?

Made in USA labels on goods with up to 5 percent foreign content by wholesale value, or 10 percent if the parts are unavailable domestically.

What is the case name?

Fitzpatrick v. Tyson Foods, Inc., No. 16-17038.