Case: 20-2235 Document: 45 Filed: 06/30/2021 Pages: 20
`
`
`
`
`
`In the
`United States Court of Appeals
`For the Seventh Circuit
`____________________
`
`No. 20‐2235
`SCOTT WEAVER,
`
`v.
`
`CHAMPION PETFOODS USA INC.
`and CHAMPION PETFOODS LP,
`
`Plaintiff‐Appellant,
`
`Defendants‐Appellees.
`____________________
`
`Appeal from the United States District Court for the
`Eastern District of Wisconsin.
`No. 18‐cv‐1996 — J. P. Stadtmueller, Judge.
`____________________
`
`ARGUED APRIL 1, 2021 — DECIDED JUNE 30, 2021
`____________________
`
`Before MANION, ROVNER, and ST. EVE, Circuit Judges.
`ST. EVE, Circuit Judge. Defendants Champion Petfoods
`USA Inc. and Champion Petfoods LP (collectively, “Cham‐
`pion”) produce dog food that they market as biologically ap‐
`propriate, containing fresh regional ingredients, and never
`outsourced. Plaintiff Scott Weaver, a Wisconsin resident who
`purchased Champion’s food, alleged this marketing was de‐
`ceptive and filed a putative class action. The district court
`
`
`
`
`
`
`
`
`
`In the
`United States Court of Appeals
`For the Seventh Circuit
`____________________
`
`No. 20‐2235
`SCOTT WEAVER,
`
`v.
`
`CHAMPION PETFOODS USA INC.
`and CHAMPION PETFOODS LP,
`
`Plaintiff‐Appellant,
`
`Defendants‐Appellees.
`____________________
`
`Appeal from the United States District Court for the
`Eastern District of Wisconsin.
`No. 18‐cv‐1996 — J. P. Stadtmueller, Judge.
`____________________
`
`ARGUED APRIL 1, 2021 — DECIDED JUNE 30, 2021
`____________________
`
`Before MANION, ROVNER, and ST. EVE, Circuit Judges.
`ST. EVE, Circuit Judge. Defendants Champion Petfoods
`USA Inc. and Champion Petfoods LP (collectively, “Cham‐
`pion”) produce dog food that they market as biologically ap‐
`propriate, containing fresh regional ingredients, and never
`outsourced. Plaintiff Scott Weaver, a Wisconsin resident who
`purchased Champion’s food, alleged this marketing was de‐
`ceptive and filed a putative class action. The district court
`
`
`
`
`
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`No. 20‐2235
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`granted summary judgment to Champion because it deter‐
`mined that Weaver had failed to produce sufficient evidence
`from which a reasonable jury could determine that any of the
`representations were false or misleading. We agree, and so we
`affirm.
`
`I. Factual Background
`Champion produces two different brands of dog food:
`Acana and Orijen. Before 2016, Champion manufactured its
`food at its NorthStar kitchen in Morinville, Canada. Starting
`in 2016, Champion moved most of its manufacturing to its
`newly opened DogStar kitchen in Auburn, Kentucky.
`Weaver lives in Wisconsin and purchased Champion dog
`food from 2008 until August 2017. He purchased two different
`varieties of the Orijen brand—Six Fish and Regional Red—for
`his golden retrievers Jack, Jill, and Prince Harry. Given the
`timeframe, he purchased food manufactured at both the
`NorthStar and DogStar kitchens.
`A. Champion’s Packaging
`Champion’s packaging of its Orijen Six Fish and Regional
`Red food contains various representations about its quality.
`Champion packages the food produced at the DogStar
`kitchen differently than the food produced at the NorthStar
`kitchen. Additionally, the Six Fish variety has different pack‐
`aging than the Regional Red variety. Across all variations at
`issue here, however, the packaging describes the food as bio‐
`logically appropriate, made with fresh regional ingredients,
`and never outsourced.
`Both the Six Fish and Regional Red packaging describe the
`food as “biologically appropriate.” The DogStar packaging
`for both varieties states that the food is “Biologically
`
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`Appropriate—Protein Rich, Carbohydrate Limited.” It fur‐
`ther states that the food “mirrors the richness, freshness and
`variety of [Whole Prey] meats that dogs are evolved to eat.”
`The NorthStar packaging states that “[a]ll dogs are evolved as
`carnivores, designed by Mother Nature to thrive on Whole
`Prey such as fowl or fish, and possessing a biological need for
`a diet rich and varied in fresh whole meats supplemented
`with smaller amounts of fruits, vegetables and grasses.”
`The packaging also contains various statements about
`fresh regional ingredients. The DogStar packaging states:
`“Grown close to home—We focus on local ingredients that are
`ethically raised by people we know and trust, and delivered
`to our kitchens fresh or raw each day.” The DogStar Six Fish
`packaging specifies that “New England’s vast Atlantic wa‐
`ters” is its “source of inspiration and fresh regional fish” and
`that it contains “fresh, raw or dehydrated fish ingredients.”
`The DogStar Regional Red packaging similarly states that
`“America’s vast and fertile lands” are its “source of inspira‐
`tion and fresh regional ingredients” and that it contains
`“fresh, raw or dehydrated animal ingredients.” Both also con‐
`tain a “meat math” section which specifies that “[t]his 13LB
`package of Orijen is made with over 11 LB of fresh, raw or
`dehydrated” fish or animal ingredients. The packaging speci‐
`fies the 11 pounds were “approximate inclusions” that in‐
`clude “2/3 fresh or raw. 1/3 dried or oils.”
`The NorthStar packaging similarly includes several refer‐
`ences to fresh regional ingredients but does not include the
`same detailed “meat math” section. The NorthStar Six Fish
`packaging represents that it “features unmatched inclusions
`of whole saltwater and freshwater fish—caught wild within
`our region and delivered to our doors FRESH EACH DAY.”
`
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`The NorthStar Regional Red packaging similarly states that it
`“features unmatched inclusions of ranch‐raised Black Angus
`beef, wild boar, lamb, heritage pork and bison—all ranched
`within our region and delivered FRESH EACH DAY.” Both
`varieties also state that “[o]ur FRESH ingredients are raised in
`our region by people we know and trust.” Both also specify:
`“Canada’s vast and unspoiled lands—our source of inspira‐
`tion and fresh regional ingredients.”
`The DogStar packaging states that that the food is “never
`outsourced” and it is “prepared exclusively in our DogStar
`kitchens—We don’t make foods for other companies and we
`don’t allow our foods to be made by anyone else.” The
`NorthStar packaging provides that “[q]uality is never out‐
`sourced” and that “we prepare Orijen ourselves, in our
`award‐winning kitchens.”
`B. Champion’s Dog Food
`Weaver contends that various aspects of the ingredients
`and source of Champion’s food render its packaging mislead‐
`ing. First, Champion’s food is not made solely from fresh in‐
`gredients. It contains frozen ingredients and ingredients that
`were previously frozen. The exact amount of frozen ingredi‐
`ents varies depending on the time of year and the supply
`available. Champion also uses “regrinds”—previously man‐
`ufactured food that failed to conform to applicable specifica‐
`tions—as dry filler in some of its dog food. It also sometimes
`uses “refreshed” ingredients, which are ingredients that
`Champion cannot use on a given day that are then sent back
`to the supplier for delivery on a later date. Additionally, even
`though most of Champion’s suppliers only guarantee fresh‐
`ness for 3 to 5 days after delivery, Champion has used ingre‐
`dients past that window.
`
`
`
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`Second, Champion does not source all its ingredients from
`areas close to Morinville, Canada and Auburn, Kentucky. It
`sources some ingredients internationally, including from Eu‐
`rope, New Zealand, Norway, and Latin America. In addition,
`it sources some ingredients from locations in North America
`that are distant from its NorthStar and DogStar kitchens.
`Third, Weaver also contends that Champion’s packaging
`is misleading because there is a risk that its food contains Bi‐
`sphenol A (“BPA”) and pentobarbital. BPA is a chemical used
`primarily to make plastics and resins. Given that plastics and
`resins are used in food storage containers, humans and ani‐
`mals are regularly exposed to BPA because it can leach from
`containers into food. They are also exposed to BPA in their
`environments, as studies have measured levels of BPA in the
`air, dust, and water. Champion does not add BPA to its food.
`Laboratory testing, however, revealed that BPA was present
`in many dog food brands, including some of Champion’s
`brands. Champion submitted unrebutted expert testimony
`that the levels of BPA purportedly contained in its food ac‐
`cording to Weaver’s Third Amended Complaint would not
`cause an adverse effect in a dog.
` Pentobarbital is a barbiturate used to euthanize animals.
`It is an adulterant that dog food should not include. Cham‐
`pion uses beef tallow in some of its food, which is fat rendered
`from animal carcasses. JBS USA Holdings, Inc. (“JBS”) has
`supplied some of Champion’s beef tallow since 2016. Cham‐
`pion’s ingredient specification form for beef tallow stated that
`“[p]roduct shall be from animals deemed fit for human con‐
`sumption” and “shall not contain animals dead or con‐
`demned upon reaching the slaughter facility.” Champion did
`not audit JBS in 2016 or 2017. In March 2018, two lots of beef
`
`
`
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`No. 20‐2235
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`tallow that JBS had delivered to Champion were contami‐
`nated with pentobarbital. By the time Champion learned
`about the pentobarbital in May 2018, it already had manufac‐
`tured 1.7 million pounds of dog food using the affected tal‐
`low. It retrieved 1.6 million pounds of the food, but about
`100,000 pounds were sold into retail.
`II. Procedural Background
`Weaver filed this putative class action in the Eastern Dis‐
`trict of Wisconsin in December 2018. The district court had
`original jurisdiction over the action under the Class Action
`Fairness Act, 28 U.S.C. § 1332(d)(2)(A) and (C). Weaver’s
`Third Amended Complaint—the operative complaint in this
`action—contains three claims: (1) violation of the Wisconsin
`Deceptive Trade Practices Act (the “Act”), Wis. Stat. § 100.18;
`(2) fraud by omission; and (3) negligence. Weaver submitted
`reports by two experts, Jon Krosnick and Colin Weir, solely
`on the issue of damages. Krosnick conducted two surveys,
`which Weir utilized to calculate the damages allegedly at‐
`tributable to Champion’s misleading representations. On the
`issue of liability, Weaver did not submit any survey evidence
`to support his claims. Instead, he only offered his own testi‐
`mony.
`Champion moved for summary judgment and Weaver
`moved for class certification. While those motions were pend‐
`ing, the district court granted Champion’s motion to exclude
`the opinions of Weaver’s damages experts. Champion then re‐
`newed its motion for summary judgment, which the district
`court granted on all counts. Weaver now appeals the district
`court’s exclusion of his damages experts and grant of sum‐
`mary judgment for Champion.
`
`
`
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`III. Discussion
`
`A. Legal Standard
`We review the district court’s grant of summary judgment
`de novo, taking the facts in light most favorable to Weaver as
`the non‐moving party. Beardsall v. CVS Pharmacy, Inc., 953
`F.3d 969, 972 (7th Cir. 2020). “Summary judgment is appro‐
`priate ‘if the movant shows that there is no genuine issue of
`material fact and the movant is entitled to judgment as a mat‐
`ter of law.’” Id. (quoting Fed. R. Civ. P. 56(a)). As the movant,
`Champion bears the burden of showing that summary judg‐
`ment is appropriate. As the non‐moving party, however,
`Weaver “may not rest upon mere allegations in the pleadings
`or upon conclusory statements in affidavits; [he] must go be‐
`yond the pleadings and support [his] contentions with proper
`documentary evidence.” Id. (quoting Warsco v. Preferred Tech.
`Grp., 258 F.3d 557, 563 (7th Cir. 2001)). “It is well‐settled that
`speculation may not be used to manufacture a genuine issue
`of fact.” SportFuel, Inc. v. PepsiCo, Inc., 932 F.3d 589, 601 (7th
`Cir. 2019) (quoting Amadio v. Ford Motor Co., 238 F.3d 919, 927
`(7th Cir. 2001)).
`B. Wisconsin Deceptive Trade Practices Act
`Weaver contends that Champion’s packaging violates the
`Act because its representations that its food is biologically ap‐
`propriate, made with fresh regional ingredients, and never
`outsourced are false or misleading. In Weaver’s view, these
`representations are false or misleading because Champion’s
`food contains or is at risk of containing non‐fresh and non‐
`regional ingredients, as well as BPA and pentobarbital. The
`district court concluded that Weaver had failed to provide
`
`
`
`
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`No. 20‐2235
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`sufficient evidence from which a jury could find that Cham‐
`pion’s packaging is misleading to a reasonable consumer.
`The Act “generally prohibits false, deceptive, or mislead‐
`ing representations or statements of fact in public advertise‐
`ments or sales announcements.” Tietsworth v. Harley‐Da‐
`vidson, Inc., 677 N.W.2d 233, 244 (Wis. 2004). Claims arising
`under the Act have three required elements: “(1) the defend‐
`ant made a representation to the public with the intent to in‐
`duce an obligation, (2) the representation was untrue, decep‐
`tive or misleading, and (3) the representation materially in‐
`duced (caused) a pecuniary loss to the plaintiff.” Novell v.
`Migliaccio, 749 N.W.2d 544, 553 (Wis. 2008) (internal quotation
`marks and citation omitted). “Silence—an omission to
`speak—is insufficient to support a claim” under the Act and
`thus it applies “only [to] affirmative assertions, representa‐
`tions, or statements of fact that are false, deceptive, or mis‐
`leading.” Tietsworth, 677 N.W.2d at 245.
`Like other state consumer protection statutes, the Act can
`be violated “even if [the representation] is not literally false.”
`Beardsall, 953 F.3d at 973. Rather, “a label is deceptive if it is
`likely to mislead a reasonable consumer in a material re‐
`spect.” Id. The Act thus “may be satisfied by proof that a state‐
`ment is likely to mislead a reasonable consumer, even if the
`statement is literally true.” Suchanek v. Sturm Foods, Inc., 764
`F.3d 750, 761–62 (7th Cir. 2014). In Beardsall, we recently re‐
`jected the argument that “the issue of whether a label is mis‐
`leading is a question of fact that must proceed to a jury.” 953
`F.3d at 976. Rather, summary judgment is appropriate “if no
`reasonable jury could find that defendants’ labels are likely to
`mislead reasonable consumers.” Id. While “extrinsic evidence
`in the form of consumer surveys or market research is [not]
`
`
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`always needed for a plaintiff to survive summary judgment or
`judgment as a matter of law on a deceptive advertising claim
`… such evidence is necessary where the advertising is not
`clearly misleading on its face and materiality is in doubt.” Id.
`1. Biologically Appropriate
`Weaver argues that Champion’s representations on its
`packaging that its food is “biologically appropriate” are false
`or misleading because there is a risk that the food contains
`BPA and pentobarbital.1 In Weaver’s view, calling the food bi‐
`ologically appropriate is a forward‐facing message guaran‐
`teeing that the food contains only natural ingredients. Be‐
`cause BPA is a chemical and pentobarbital is a barbiturate,
`Weaver contends that a reasonable consumer would be mate‐
`rially misled.
`Regarding BPA, it is undisputed that humans and animals
`are commonly exposed to BPA, Champion does not add BPA
`to its food, and the level of BPA purportedly in Champion’s
`food poses no health risks to dogs. Despite these uncontested
`facts, Weaver insists that the mere risk that any small amount
`of BPA is present in Champion’s foods renders its representa‐
`tions that its food is biologically appropriate misleading to a
`reasonable consumer. In support, Weaver relies solely on his
`own testimony that he would consider no amount of BPA to
`be biologically appropriate.
`Weaver’s argument is unpersuasive because he has failed
`to provide evidence
`that
`the phrase “biologically
`
`
`1 Like the district court, for the purposes of this appeal we will assume
`that “biologically appropriate” is an actionable representation under the
`Act rather than non‐actionable commercial puffery.
`
`
`
`
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`appropriate” is likely to materially mislead a reasonable con‐
`sumer into believing that the product was BPA‐free. Our de‐
`cision in Beardsall illustrates why this is the case. 953 F.3d at
`973. There, consumers who purchased aloe vera gel sued un‐
`der various consumer protection statutes on the basis that the
`product was labeled as “100% Pure Aloe Vera Gel” even
`though it had low concentrations of acemannan (a polysac‐
`charide found in aloe vera). We upheld summary judgment,
`noting that the plaintiffs’ theory “might be viable” but that
`they “have not presented any actual evidence that the label is
`likely to mislead consumers about the nature or quality of the
`product.” Id. Specifically, “[p]laintiffs ha[d] presented no evi‐
`dence,” such as consumer surveys, to show that “acemannan
`concentration itself is actually salient to consumers.” Id. Evi‐
`dence of the acemannan concentration in the product “does
`not give us reason to believe that consumers care about ace‐
`mannan concentration.” Id. at 974. The plaintiff’s expert did
`not testify that a product with low acemannan concentration
`could not be called aloe, or that a certain level of acemannan
`was needed to render aloe effective. Id. Unlike in other con‐
`sumer protection cases that had survived summary judg‐
`ment, the plaintiffs in Beardsall “offered no evidence that the
`products fell short of consumers’ expectations in any material
`way.” Id. at 976. The court noted that “[t]his is not to say that
`extrinsic evidence in the form of consumer surveys or market
`research is always needed for a plaintiff to survive summary
`judgment … on a deceptive advertising claim,” but “such ev‐
`idence is necessary where the advertising is not clearly mis‐
`leading on its face and materiality is in doubt.” Id.
`In this case, Weaver only offered his own testimony to
`prove that a reasonable consumer would interpret “biologi‐
`cally appropriate” as certifying that the food is BPA‐free. He
`
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`failed to offer any additional evidence to support this ele‐
`ment. Uncontested evidence in the record shows that the level
`of BPA purportedly in Champion’s food poses no risk of ad‐
`verse health effects in dogs. Additionally, it is undisputed that
`humans and animals are commonly exposed to BPA and BPA
`is found in some other brands of dog foods. Just like the plain‐
`tiffs in Beardsall failed to show that a reasonable consumer
`would interpret “100% Pure Aloe Vera Gel” as certifying a
`certain concentration of acemannan, Weaver has offered no
`evidence that a reasonable consumer here would interpret
`“biologically appropriate” as certifying the product was BPA‐
`free. Weaver further did not offer any evidence that the low
`levels of BPA in some of Champion’s food renders it biologi‐
`cally inappropriate. Nor does he offer consumer surveys or
`market research showing that a reasonable consumer would
`interpret “biologically appropriate” to mean BPA‐free. Like
`Beardsall, this is not a case where the representation that the
`food is biologically appropriate is “clearly misleading on its
`face,” and so Weaver’s reliance on his own testimony to over‐
`come summary judgment is misplaced. 953 F.3d at 976. To
`survive summary judgment, Weaver needed to offer evidence
`that reasonable consumers were likely to be misled in a mate‐
`rial way by the phrase “biologically appropriate,” and he has
`failed to do so.
`Weaver’s argument that the phrase “biologically appropri‐
`ate” is misleading because the food contains a risk of pento‐
`barbital also fails, but for a different reason. As the district
`court noted, Weaver lacks standing because he failed to show
`that the dog food he purchased was at risk of containing pen‐
`tobarbital. The sole source of any potential pentobarbital is
`JBS, a third‐party supplier of tallow. Weaver stopped pur‐
`chasing Champion’s food in August 2017. JBS, however, did
`
`
`
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`not deliver the contaminated tallow to Champion until March
`2018. Despite this undisputed fact, Weaver contends that a
`reasonable jury could still find that there was a risk that the
`food he purchased contained pentobarbital. He cites to the
`fact that even though Champion designated beef tallow as a
`high‐risk ingredient, it failed to audit JBS in 2016 and 2017.
`Additionally, a JBS sample retained from November 2017
`tested positive for pentobarbital.
`These facts amount to nothing more than speculation. And
`a “party must present more than mere speculation or conjec‐
`ture to defeat a summary judgment motion.” Liu v. T & H
`Mach., Inc., 191 F.3d 790, 796 (7th Cir. 1999). Champion’s fail‐
`ure to audit JBS is not sufficient evidence to raise an issue of
`fact that prior to March 2018 there were contaminated ship‐
`ments. The retained sample that tested positive for pentobar‐
`bital was from November 2017—months after Weaver
`stopped purchasing Champion’s food. Moreover, the sample
`was from a subsidiary of JBS and Weaver did not offer any
`evidence that Champion ever received tallow produced at
`that facility.
`Ultimately, even considering these facts together and in
`the light most favorable to Weaver, he has offered no evidence
`from which a reasonable jury could infer that he purchased
`dog food containing pentobarbital. We thus affirm the district
`court’s grant of summary judgment to Champion as to
`whether the risk of the presence of BPA or pentobarbital ren‐
`dered the phrase “biologically appropriate” misleading to a
`reasonable consumer.
`
`
`
`
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`2. Fresh and Regional Ingredients
`Weaver next argues that Champion’s representations that
`its food is made with fresh regional ingredients are mislead‐
`ing. According to Weaver, the representations about fresh in‐
`gredients are misleading because Champion uses frozen in‐
`gredients, regrinds, refreshed ingredients, and ingredients
`that are past their expiration date. He further argues the rep‐
`resentations about regional ingredients are misleading be‐
`cause some ingredients are sourced from places far away
`from Morinville and Auburn, where the dog food is manufac‐
`tured. The district court determined that the packaging was
`not misleading because it did not represent that all the ingre‐
`dients were fresh and regional. Consequently, because the
`food contained some ingredients that were fresh and sourced
`regionally, a reasonable consumer would not be misled.
`On appeal, Weaver insists the district court erred. He con‐
`tends that a reasonable consumer would interpret Cham‐
`pion’s claims that they use fresh regional ingredients as mean‐
`ing that they use only fresh regional ingredients. Several dis‐
`trict courts have held that references to ingredients used do
`not imply that ingredient is used exclusively. See Kennedy v.
`Mondelez Glob. LLC, No. 19‐cv‐302, 2020 WL 4006197, at *4
`(E.D.N.Y. July 10, 2020) (noting that graham crackers that
`were advertised as “made with real honey” were not mislead‐
`ing even though other sweeteners and additives were also
`used); Sarr v. BEF Foods, Inc., No. 18‐cv‐6409, 2020 WL 729883,
`at *4 (E.D.N.Y. Feb. 13, 2020) (determining that a label that
`states that mashed potatoes are made with “real butter” does
`not imply that other fats are also not used); Henderson v.
`Gruma Corp., No. 10‐cv‐04173, 2011 WL 1362188, at *12 (C.D.
`Cal. Apr. 11, 2011) (determining that crackers labeled as made
`
`
`
`
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`“with Garden Vegetables” was not misleading as a matter of
`law because “the labeling statement does not claim a specific
`amount of vegetables in the product, but rather speaks to their
`presence in the product”). Relying on this line of cases, the
`district court in Song v. Champion Petfoods USA, Inc., No. 18‐
`cv‐3205, 2020 WL 7624861 (D. Minn. Dec. 22, 2020), recently
`dismissed a similar claim against Champion:
`Just as a statement that mashed potatoes are made with
`“real butter” does not imply that the only fat used is
`real butter, and just as a statement that graham crack‐
`ers are made with “real honey” does not imply that the
`only sweetener used is real honey, so too the statement
`that a bag of dog food contains “fresh regional ingre‐
`dients” does not imply that it is composed exclusively
`of ingredients that are fresh and regional.
`Id. at *7.
`Weaver relies solely on his own testimony that he expected
`all the ingredients to be fresh and sourced from places close
`to Morinville and Auburn. This falls short of evidence from
`which a reasonable jury could find that there is “a probability
`that a significant portion of the general consuming public or
`of targeted consumers, acting reasonably in the circum‐
`stances, could be misled.” Beardsall, 953 F.3d at 973 (quoting
`Ebner v. Fresh, Inc., 838 F.3d 958, 965 (9th Cir. 2016)). Cham‐
`pion’s representations that its food is made with fresh re‐
`gional ingredients are not clearly misleading—its food does,
`in fact, contain some ingredients that are fresh and sourced
`regionally. Weaver thus needed to offer something more than
`his own testimony. Beardsall, 953 F.3d at 976 (noting that while
`“extrinsic evidence in the form of consumer surveys or mar‐
`ket research is [not] always needed for a plaintiff to survive
`
`
`
`
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`summary judgment … on a deceptive advertising claim,”
`such evidence is needed “where the advertising is not clearly
`misleading on its face …”).
`Weaver contends that our recent decision in Bell v. Publix
`Super Markets, Inc., 982 F.3d 468 (7th Cir. 2020), renders sum‐
`mary judgment inappropriate here, but his reliance on Bell is
`misplaced. There, the plaintiffs alleged that they were misled
`by cheese products labeled as “100% Grated Parmesan
`Cheese.” Id. at 474. The district court granted the defendants’
`motion to dismiss, reasoning that the ingredient label—which
`included ingredients other than grated parmesan cheese—
`would cure any ambiguity from the label. Id. We reversed,
`reasoning that the plaintiffs’ allegations were plausible be‐
`cause “[w]hat matters most is how real consumers under‐
`stand and react to the advertising” and “an accurate fine‐print
`list of ingredients does not foreclose as a matter of law a claim
`that an ambiguous front label deceives reasonable consum‐
`ers.” Id. at 476.
`Unlike in Bell, here Champion’s packaging did not repre‐
`sent that it was made with 100% fresh regional ingredients.
`But more importantly, “[t]he result is different in this case be‐
`cause of the difference between a motion to dismiss on the
`pleadings and a motion for summary judgment.” Id. at 482–
`83 (noting that Bell does not conflict with our decision in
`Beardsall to affirm the district court’s grant of summary judg‐
`ment because “the Beardsall plaintiffs failed to offer any con‐
`sumer surveys showing the 100% claim was misleading” and
`ultimately “failed to offer evidence of actual deception”). In
`Bell, to survive a motion to dismiss, the plaintiffs needed only
`to “nudge[] their claims across the line from conceivable to
`plausible” and present “a claim to relief that [was] plausible
`
`
`
`
`
`Case: 20-2235 Document: 45 Filed: 06/30/2021 Pages: 20
`
`16
`
`No. 20‐2235
`
`on its face.” Id. at 476 (quoting Bell Atlantic Corp. v. Twombly,
`550 U.S. 544, 570 (2007)). We concluded that their com‐
`plaints—which included allegations that they had conducted
`consumer surveys showing that consumers were misled by
`the label—passed the plausibility threshold.
`But here, as in Beardsall, the question is not whether
`Weaver’s allegations are plausible—instead, the question is
`whether he has provided sufficient evidence from which a
`jury could find that a reasonable consumer would be materi‐
`ally misled by Champion’s representations that its food is
`made with fresh regional ingredients. “Summary judgment is
`the proverbial put up or shut up moment in a lawsuit, when
`a party must show what evidence it has that would convince
`a trier of fact to accept its version of events.” Beardsall, 953 F.3d
`at 973 (internal quotation marks and citation omitted). Here,
`Weaver failed to offer such evidence. We therefore affirm the
`district court’s grant of summary judgment.
`3. Never Outsourced
`Weaver next contends that Champion’s representations
`that its food is “never outsourced” are misleading because it
`buys ingredients such as meal and tallow from outside
`sources. Specifically, the DogStar packaging states: “Never
`outsourced. Prepared exclusively in our DogStar kitchens—
`We don’t make foods for other companies and we don’t allow
`our foods to be made by anyone else.” The NorthStar packag‐
`ing represents that “Quality is never outsourced” and that
`“we prepare Orijen ourselves, in our award‐winning kitch‐
`ens.”
`Weaver testified that these representations misled him
`into believing that Champion sourced its ingredients from
`
`
`
`
`
`Case: 20-2235 Document: 45 Filed: 06/30/2021 Pages: 20
`
`No. 20‐2235
`
`17
`
`nearby. In other words, Weaver understood that Champion
`was not growing or raising all the ingredients in its food—
`rather, it sourced them from somewhere else. Nevertheless,
`he contends that the fact that Champion sourced certain in‐
`gredients like tallow from third parties means that its repre‐
`sentations that its food is “never outsourced” are misleading.
`In support, he again relies solely on his own testimony. Simi‐
`lar to the other alleged misrepresentations, Weaver has fallen
`short of introducing sufficient evidence from which a jury
`could find that reasonable consumers were misled. Cham‐
`pion’s representations about outsourcing reference that it pre‐
`pares its food in its own kitchens, and Weaver does not con‐
`tend that Champion does not do so—instead, he insists that
`the fact that Champion sources certain ingredients from third
`parties means that it does, in fact, outsource the preparation
`of its food. Given that the representations at issue are not mis‐
`leading on their face when taken in context, to survive sum‐
`mary judgment Weaver must have offered evidence that a
`reasonable consumer would be materially misled. See
`Beardsall, 953 F.3d at 976. He has not done so.
`Weaver cites to our decision in Suchanek to argue that
`whether a reasonable consumer would be misled by Cham‐
`pion’s representations should be a question for the jury. But
`this argument is unavailing. “The plaintiffs in Suchanek of‐
`fered three surveys showing that consumers expected one
`product (roasted and ground coffee beans) and received
`something different that they viewed as inferior (instant cof‐
`fee).” Beardsall, 953 F.3d at 975 (citing Suchanek, 764 F.3d at
`753–54). But here, as in Beardsall, the representations are not
`misleading on their face and Weaver has failed to offer any
`evidence apart from his own testimony that a reasonable con‐
`sumer would be materially misled. See Beardsall, 953 F.3d at
`
`
`
`
`
`Case: 20-2235 Document: 45 Filed: 06/30/2021 Pages: 20
`
`18
`
`No. 20‐2235
`
`976 (affirming summary judgment because “[p]laintiffs here
`have not gone beyond the pleadings and supported their
`claims with the necessary evidence”). This is not sufficient to
`create an issue of fact for the jury. We thus affirm the district
`court’s grant of summary judgment on this claim.
`C. Fraud and Negligence Claims
`Weaver further argues that the district court erred in
`granting summary judgment for Champion on his fraud and
`negligence claims. In his view, the district court impermissi‐
`bly imposed a literal falsehood standard that Wisconsin law
`does not require, and Champion had a duty to disclose the
`“true contents” of its food, including the risk of BPA and pen‐
`tobarbital.
`Weaver’s arguments are unpersuasive. Under Wisconsin
`law, “[a]ll misrepresentation claims
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