Kalmbach Feeds, Inc. v. Purina Animal Nutrition LLC et al

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
KALMBACH FEEDS, INC., 	:
: 	Case No. 2:25-cv-00617
Plaintiff, 	:
: 	Judge Algenon L. Marbley
v. 	:
: 	Magistrate Judge Vascura
PURINA ANIMAL NUTRITION, 	:
LLC, et al., 	:
:
Defendants. 	:
OPINION AND ORDER
This matter comes before the Court on Defendant Purina Animal Nutrition, LLC’s Motion
to Dismiss Plaintiff Kalmbach Feeds, Inc.’s Complaint for failure to state a claim under Fed. R.
Civ. P. 12(b)(6). (ECF No. 29). Plaintiff Kalmbach sued Defendant Purina for false advertising
under state and federal law in connection with its Farm to Flock chicken feed, which Purina
represented as helping to defend against viruses such as avian influenza. Purina points out that
Kalmbach has not sufficiently alleged an injury resulting from that advertising. For the following
reasons, this Court GRANTS Purina’s Motion, and provides leave for Kalmbach to amend its
Complaint.
I. 	BACKGROUND
A. Factual Background
Plaintiff Kalmbach Feeds is an Ohio corporation that manufactures feed products for
livestock, poultry, and other animals. 	Its animal feed products include a brand of poultry feed
marketed as Henhouse Reserve and Chickhouse Reserve. 	(ECF No. 1 ¶¶ 1–3). 	Purina Animal
Nutrition is a Delaware limited liability company also in the business of producing and distributing
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animal feed products. Purina’s animal feed products include brands of poultry feed, such as Purina
Farm to Flock 18% Layer Hen food.” 	(Id. ¶¶ 4–6, 8). 	Purina and Kalmbach are business
competitors, and Purina’s Farm to Flock feed “directly competes with Kalmbach’s Henhouse
Reserve” chicken feed. (Id. ¶¶ 7–8).
Kalmbach accuses Purina and five unidentified John Doe defendants1 of attempting to
capitalize on public fear about avian influenza by falsely representing that Purina’s Farm to Flock
feed “Defends Against Viruses, Like Bird Flu” due to a “built-in defense against avian influenza
and other viruses.” (Id. ¶¶ 9, 21). Kalmbach points to a series of Purina advertisements that they
say were marketed and provided to customers, distributors, and merchants. (Id. ¶ 36; see, e.g., ¶¶
31, 33). 	Purina’s advertisements, made via electronic mail, social media posts, paper flyers,
Purina’s online store, and elsewhere on the internet, contain the following claims:
 	That Farm to Flock would defend against viruses like the bird flu due to its
aforementioned “built-in defense against avian influenza and other viruses,” which
would give the customer “peace of mind from the inside out.” (Id. ¶ 21; see id. ¶¶
22–26, 31–32).
 	That Purina’s representations were “driven by science” and made by a company
that 	employed 	“more 	than 	500 	Masters 	of 	Science, 	Ph.D.s, 	veterinarians,
nutritionists, microbiologists, geneticists, and immunologists.” 	(Id. ¶¶ 27–28)
(emphasis added).
1 Kalmbach has thus far failed to identify the five John Doe Defendants, and the docket does not
reflect that service has been effected upon any John Doe Defendant. 	See Fed. R. Civ. P. 4(m);
Petty v. Cnty. of Franklin, 478 F.3d 341, 345–46 (6th Cir. 2007).
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 	That Farm to Flock’s “breakthrough ingredient” FeedLock would “help[] defend
against avian influenza and other viruses by breaking down these harmful
pathogens on the feed” and would “boost[] immunity.” (Id. ¶ 30).
 	That Farm to Flock offered “Complete Whole-food Goodness & Defense,” or “flu-
fighting goodness,” that would “actively support[] and fortif[y] [a] flock’s immune
and gut health.” (Id.; see id. ¶ 31).
Kalmbach asserts that Purina created these advertisements as a marketing tactic, knowing that
owners of backyard chicken flocks “may be at particular risk” of avian influenza due to the virality
of recent outbreaks and the severity of the virus in infected birds, while the government and poultry
industry would be concerned about the financial toll of potential outbreaks. (Id. ¶¶ 14–18; see id.
¶¶ 21, 33). Thus, Purina could gain a market edge over its competitors by convincing them that
Farm to Flock offered a benefit—a protection or mitigation against the risk of avian influenza. (Id.
¶¶ 37–38).
But if it sounds too good to be true, it probably is—and according to Kalmbach, Purina’s
marketing and promotion of Farm to Flock could not be true. 	That’s because the best way to
prevent avian influenza, including its highly pathogenic form, is through “biosecurity measures”
such as handwashing, decontaminating enclosures and equipment, and maintaining closed water
sources. (Id. ¶ 19). By contrast, there is not “any kind of animal feed diet or food additive for
poultry” recognized as protecting against avian influenza, “because feed is not regarded as a route
of infection for [avian influenza] among poultry.” (Id. ¶ 20). Simply put, Kalmbach accuses its
competitor Purina of pants-on-fire lying, through attempted viral virus-related marketing, to gain
a competitive edge in the market. Kalmbach asserts that Purina’s marketing is untrue because “no
accepted scientific literature establish[es] any definitive link between particular food additives in
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a chicken’s diet and its risk of contracting [highly pathogenic avian influenza].” (Id. ¶¶ 20–21, 31,
33, 36).
Kalmbach claims that customers have been misled by Purina’s false representations, and
in their confusion, they have reached out to inquire as to why Kalmbach has not also produced a
feed that defends against avian influenza. (Id. ¶ 37). Because Purina’s false representations are
“material to consumers’ purchase decisions,” and because Purina and Kalmbach are competitors,
Kalmbach claims that it is irreparably harmed by Purina’s representations about Farm to Flock and
FeedLock. (Id. ¶¶ 38–39, 7–8).
B. Procedural Background
Kalmbach sued on June 3, 2025, and moved for a preliminary injunction the next day.
Without admitting liability, Defendant Purina consented to the preliminary injunction motion on
June 18. 	Kalmbach then sought to amend its preliminary injunction motion, and Purina
subsequently opposed it. The Court heard argument and received testimony regarding Kalmbach’s
requested preliminary injunction on August 26–28 and September 8, 2025, (see ECF Nos. 57–60),
and issued a preliminary injunction on November 12, 2025. 	Kalmbach Feeds, Inc. v. Purina
Animal Nutrition, LLC, 2025 WL 3153412, at *15 (S.D. Ohio Nov. 12, 2025) (Marbley, J.).
Kalmbach’s Complaint asserts two separate counts for violations of the Lanham Act and
the Ohio Deceptive Trade Practices Act under its single theory of the case: that Purina engaged in
false advertising when it claimed that its Farm to Flock chicken feed offered some benefit against
avian influenza or other viruses. (ECF No. 1 ¶¶ 40–47). It requests compensatory, punitive, and
treble damages, injunctive relief, as well as costs and fees. 	(Id. at 16). 	While the preliminary
injunction was being briefed, Purina also sought to dismiss the Complaint in its entirety under Fed.
R. Civ. P. 12(b)(6), arguing that the Complaint “contains no allegation that Kalmbach suffered any
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actual lost sales or damage to its reputation because of the complained-of advertising claims.”
(ECF No. 29 at 3). Kalmbach opposed, and Purina replied. (ECF Nos. 40, 43). The matter is now
ripe for review.
II. 	STANDARD OF REVIEW
Pleadings that state a claim for relief, such as a complaint, must provide “a short and plain
statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). A
party may challenge the sufficiency of a complaint by a motion arguing that the complaint “fail[s]
to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). Courts evaluating a
Rule 12(b)(6) motion to dismiss “construe the complaint in the light most favorable to the plaintiff,
accept [all] allegations as true, and draw all reasonable inferences in [its] favor.” Bassett v. Nat’l
Collegiate Athletic Ass’n, 528 F.3d 426, 430 (6th Cir. 2008) (internal quotation marks and citation
omitted). This favorable treatment of the complaint applies to well-pleaded factual allegations.
Complaints cannot rest on legal conclusions, as “‘labels and conclusions’ or ‘a formulaic recitation
of the elements of a cause of action’” are insufficient; similarly, their factual assertions cannot rest
on “‘naked assertion[s]’ devoid of ‘further factual enhancement.’” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 557(2007)). In sum, the facts
must be sufficient to “raise a right to relief above the speculative level,” such that the complaint’s
claims are “plausible on [their] face.” Twombly, 550 U.S. at 555, 570.
III. 	LAW & ANALYSIS
Complaints are governed by a “liberal” pleading standard, Roof Maxx Techs., LLC v.
Holsinger, 2021 WL 3617153, at * 3 (S.D. Ohio Aug. 16, 2021) (Marbley, J.), and they “will
survive a motion to dismiss” where they satisfy it. 	Crawford v. Columbus State Community
College, 196 F. Supp. 3d 766, 772 (S.D. Ohio 2016) (Marbley, J.). Yet complaints cannot simply
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make “the bare assertion of legal conclusions to survive a motion to dismiss.” Roof Maxx Techs.,
2021 WL 3617153, at *3. And although this Court already determined that Kalmbach was entitled
to a preliminary injunction and had established the requisite presumption of irreparable harm,
Kalmbach, 2025 WL 3153412, at *11–12, courts considering motions to dismiss “must focus only
on the allegations in the pleadings.” Waskul v. Washtenaw Cnty. Comm. Mental Health, 979 F.3d
426, 440 (6th Cir. 2020) (internal quotation marks and citation omitted). 	Purina’s Motion to
Dismiss tests whether Kalmbach’s claims in its Complaint are viable “without reference to
evidence not included in [the] complaint.” Id.
A. Elements of False Advertising Claims
Kalmbach asserts two counts for false advertising: 	one for a violation of the federal
Lanham Act, and one for a violation of Ohio’s false advertising law. The standards for these two
laws are similar.
The Lanham Act prohibits what is commonly referred to as false advertising. It establishes
liability for the use of “any word, term, . . . false or misleading description of fact, or false or
misleading misrepresentation of fact, which . . . in commercial advertising or promotion,
misrepresents the nature, characteristics, [or] qualities[] . . . of [its] or another person’s goods,
services, or commercial activities.” 15 U.S.C. § 1125(a)(1)(B). To bring a false advertising claim
under the Lanham Act, a party must prove: 	(1) the adverse party “made a false or misleading
statement of fact about [a] product or service”; (2) that statement “actually deceived or tended to
deceive a substantial portion of the . . . intended audience”; (3) that statement “likely influenced
the intended audience’s purchasing decisions”; (4) the adverse party “introduced the statement in
interstate commerce”; and (5) “a causal connection” exists between the statement and the injury.
FedEx Ground Package Sys., Inc. v. Route Consultant, Inc., 97 F.4th 444, 452–53 (6th Cir. 2024)
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Ohio’s Deceptive Trade Practices Act also prohibits false advertising, because it prohibits
parties from “[r]epresent[ing] that goods . . . have . . . characteristics, ingredients, uses, benefits,
or quantities that they do not have.” Ohio Rev. Code § 4165.02(A)(7). The parties agree that the
Ohio Deceptive Trade Practices Act Claim is analogous to the Lanham Act. (ECF Nos. 40 at 6;
29 at 9–10).2
B. Parties’ Arguments
The central question is whether Kalmbach has alleged an injury causally connected to the
challenged false advertising. 	Purina challenges Kalmbach’s pleading of the injury causation
element of the false advertising claims, arguing that Kalmbach has only alleged “direct competition
and consumer deception.” (ECF No. 43 at 1; see ECF Nos. 40 at 6; 29 at 5). According to Purina,
Kalmbach must allege either actual lost sales or damage to its reputation stemming from the
challenged advertising claims, but it has failed to do so because it has only alleged customer
inquiry regarding Purina’s claims. 	(ECF No. 29 at 3–4). 	Purina points to the Supreme Court’s
decision in Lexmark Int’l, Inc. v. Static Control Components, Inc. as establishing the requirement
that either lost sales or reputation damage be pleaded for a suit to fall under the “zone of interest”
of the Lanham Act, arguing that Kalmbach has established neither type of injury. (Id. at 5–8 (citing
Lexmark, 572 U.S. 118, 131–32 (2014)). Purina concludes that Kalmbach has failed to “bridge
[the] causal gap” in its unexamined and unsupported conclusory assumptions that any sale to
Purina is necessarily a sale lost from Kalmbach. (ECF No. 43 at 7–8).
2 Indeed, courts typically use the same analysis when evaluating false advertising claims under
both the Lanham Act and the Ohio Deceptive Trade Practices Act. Ohio’s law is similar, though it
omits the interstate commerce component of the federal law. See Kalmbach Feeds, Inc. v. Purina
Animal Nutrition, LLC, 2025 WL 3153412, at *4 (S.D. Ohio Nov. 12, 2025) (Marbley, J.)
(collecting cases).
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Kalmbach argues that its Complaint is sufficient for Lexmark’s zone of interest test because
it has alleged that it is a direct competitor to Purina, and that it has alleged causation through
customer inquiries. (ECF No. 40 at 1–2, 7–11). It argues that it should not be “required to prove
lost sales in order to pursue [its] lawsuit,” and focuses on its request for injunctive relief, rather
than monetary relief. (Id. at 11) (emphasis added). But as Purina points out, Kalmbach relies on
pre-Lexmark caselaw and conflates “proving lost sales” with “adequately pleading a cognizable
injury” for the purposes of a Motion to Dismiss. (ECF No. 40 at 1, 3).
C. Analysis
For Kalmbach’s interests “to come within the zone of interests [protected by law] in a suit
for false advertising under § 1125(a), [Kalmbach] must allege an injury to a commercial interest
in reputation or sales.” Lexmark, 572 U.S. at 131–32. Kalmbach has not sufficiently pleaded any
such injury, and its Complaint is conclusory and vague in alleging harm: Kalmbach only asserts
that Purina’s challenged advertisements “irreparably harm[ed] Kalmbach.” 	(ECF No. 1 ¶ 39).
Moreover, in its response to Purina’s Motion to Dismiss, Kalmbach conceded that its “Complaint
contains no current allegation of reputational harm caused by Purina’s false advertisements.” (ECF
No. 40 at 10). Therefore, Kalmbach must allege an injury to its sales to sue under the Lanham Act.
It has not done so. Kalmbach has only made the conclusory allegations that “[c]ustomers have . . .
been misled by Purina’s false claims – to Kalmbach’s direct detriment.” 	(ECF No. 1 ¶ 37)
(emphasis removed). But how this alleged customer confusion has impacted Kalmbach negatively
is unclear from the Complaint.
Consider two pleading problems: it is unclear whether Kalmbach is alleging confusion for
its customers, Purina’s customers, or both its and Purina’s customers, just as it is unclear how this
confusion is detrimental to Kalmbach. The mere fact that Kalmbach received customer inquiries
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does not bridge the necessary gap from alleging a deceptive statement that influenced purchasing
decisions to the requirement that Kalmbach allege an injury. Put differently, Kalmbach must plead
that Purina’s false claims actually hurt it, rather than simply confused customers. FedEx, 97 F.4th
at 453. Kalmbach does not allege that these confused customers would otherwise have purchased
Kalmbach’s feed—Kalmbach just presumes injury. (Id. ¶¶ 37–39). Although Kalmbach is correct
that it is “not required to plead ‘actual lost sales,’” it is incorrect in its assertion that “[i]t has
pleaded injury sufficient to confer standing to sue for false advertising.” 	(ECF No. 40 at 7).
Kalmbach’s Complaint is not saved by the fact that it alleges Kalmbach and Purina “directly
compete[]” with their respective chicken feed products, (ECF Nos. 1 ¶ 8; 40 at 9), because even a
direct competitor still must allege “[a] diversion of sales” due to false advertising. Lexmark, 572
U.S. at 138.
Competitors who allege injuries of “lost sales” or a damaged “business reputation” are
within the Lanham Act’s zone of interests and can sue. 	Id. at 137. 	But Kalmbach’s Complaint
does not actually allege any specific form of injury, nor does it specify how any “material” impact
of Purina’s advertisements on “consumers’ purchase decisions” led to any “injury to Kalmbach.”
(ECF No. 1 ¶ 38); see Cadence Bank, N.A. v. Hurl, 2022 WL 769506, at *8 (S.D. Ohio Mar. 14,
2022) (Marbley, J.) (“As pled, the Complaint contains no factual allegations that support an
injury.”); compare Scotts Co. v. Procter & Gamble Co., 2026 WL 482655, at *7–8 (S.D. Ohio Feb.
20, 2026) (finding a complaint sufficient where it alleged “a ‘significant portion of consumers who
mistakenly believe [P&G’s] false and/or misleading statements about its Spruce weed killer are
likely to purchase Defendant’s product instead of Scotts’ competitive products’”). 	Kalmbach
needed to allege an injury placing it within the zone of interests protected by the Lanham Act and
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supplying the “causal chain” linking its injuries to Purina’s alleged representations and the
resultant customer confusion. Lexmark, 572 U.S. at 139. It has failed to do so.
Kalmbach’s arguments and evidence that helped it carry the day on its motion for a
preliminary injunction, see Kalmbach, 2025 WL 3153412, at * 8–9, *11, cannot backfill gaps in
the Complaint’s allegations. The Complaint conclusorily alleges harm as a general matter but fails
to connect allegations of customer inquiries and purchase decisions to any actually alleged harm
or injury to Kalmbach. Geomatrix, LLC v. NSF Int’l, 82 F.4th 466, 483–84 (6th Cir. 2023) (“None
of these allegations describe how consumers withheld trade from the plaintiff.”) (emphasis altered;
cleaned up); Uriah Prods., LLC v. Winston Prods., LLC, 2025 WL 1569651, at *5 (N.D. Ohio June
3, 2025) (party asserting Lanham Act claims failed to “actually allege any reputational damage or
injury”). 	Thus, the Complaint fails to plead any non-conclusory causal connection between
Purina’s statements and Kalmbach’s injuries, as it must for its false advertising counts. Purina’s
Motion to Dismiss must be granted. That said, there is a case here.3 Kalmbach shall have leave
to amend its Complaint.4
IV. 	CONCLUSION
Purina’s Motion to Dismiss (ECF No. 29) is GRANTED. The Court directs amendment
of the Complaint to clarify the injury or injuries alleged. 	Kalmbach must file any amended
complaint within twenty-eight days of the date of this opinion, and attach as an exhibit a
3 Briefing on the Motion to Dismiss was completed prior to a multi-day hearing and extensive
briefing on Kalmbach’s sought preliminary injunction.
4 Fed. R. Civ. P. 15(a)(2) (“[A] party may amend its pleading . . . with . . . the court’s leave.”); see
6 Wright & Miller’s Federal Practice and Procedure § 1483 (3d ed. 2025) (“Ideally, if it is at all
possible that the party against whom a dismissal is directed can correct the defect in the pleading
or state a claim for relief, the court should dismiss with leave to amend.”); Newberry v. Silverman,
789 F.3d 636, 645–46 (6th Cir. 2015) (circuit caselaw “manifests ‘liberality in allowing
amendments to a complaint’”).
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“blackline” of the Amended Complaint against the current Complaint. E.g., First-Citizens Bank
& Tr. Co. v. HSBC Holdings plc, 2024 WL 115933, at *14 (N.D. Cal. Jan. 10, 2024).
IT IS SO ORDERED.
ALGENON L. MARBLEY
UNITED STATES DISTRICT JUDGE
Date: March 4, 2026
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