Pet food label disputes make pet owners ask: “Can you trust any pet company?”

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There are a significant number of class action lawsuits dealing with the pet food label.   Most all of them deal with alleged misleading marketing claims: labeling products “Prescription” when they don’t contain medicine, labeling “Made in America” when not all ingredients are sourced here, labeling “Natural” when products contain synthetic ingredients and labeling “Organic” when products contain substances like pentobarbital.

The most immediate cause behind this lack of trust in pet food manufacturers is the much-publicized Chinese melamine scare in 2007.  Blue Buffalo’s recent $32MM settlement in the class action law suit claiming that the company had ingredients in its products that it claimed not to (by product meal, corn, wheat, soy and artificial preservatives), certainly didn’t help bolster confidence.  Pet owners were left to question on social media “Can you trust any company?”

The distrust trend is also rooted in larger society as a whole.  According to a Gallup poll, fewer than half of Americans now trust the church, the medical system, the presidency, the Supreme Court, public schools, banks, organized labor, the criminal justice system, big business and Congress.  The younger the American, evidently, the greater the level of mistrust.   According to a recent Washington Post article, in answer to a question of who can be trusted to do the right thing, a majority of Millennials trusted just two societal institutions – the military and scientists.  We see this lack of trust manifesting in movements like Black Lives Matter as well.

A summary of how the pet consumer “distrust trend” is fueling class action labeling lawsuits in the pet industry.

“Prescription” Pet foods that lead consumers to pay higher prices because they think the foods are medically beneficial.

In Moore vs. Mars Pet Care, the suit names all the companies that manufacture or sell prescription diets:  Mars, Nestle, Hills, Royal Canin, Blue Pearl Vet and Medical Management International (Banfield/PetSmart).  The argument is two fold:  a.) Consumers are being duped into paying higher prices for foods that are similar to non-prescription counterparts sold at retail and b.) Companies that both manufacture and sell at clinic both create and control the market.  In short, they charge that it’s an anti-competitive conspiracy that results in consumers paying up to 40% price premiums.

There are two things of interest to pet food manufacturers in this suit.  The class action
has no issue with the quality or even efficacy of the prescription diets, it merely attacks the use of the word “prescription” and all the positive halo that surrounds that word. Prescriptions are assumed to be medically necessary and non-discretionary.  Should pet food manufacturers be allowed to use that powerful word associated with a product
that is not a medicine?  Secondly, is it fair that the FDA allows prescription diet health claims for products that don’t contain medicine?  Human pharmaceutical companies seem to play by a very different scorecard than do the pet food companies.

“Natural” or “Organic” products that contain artificial preservatives or trace elements of harmful substances.

In Grimm vs. Ainsworth Pet Nutrition Holdings, the plaintiff alleges that Rachel Ray’s Nutrish contains synthetic ingredients and harmful additives that make the “natural” claim on label deceptive.  The alleged offenders are “L-Ascorbyl-2-Polyphosphate, Menadione Sodium Bisulphate Complex, Thiamine Mononitrate, natural flavors and caramel color.  Very scary names for Vitamins C, K and B1.  In its defense, the company says it is labeled:  “Natural Food for Dogs with Added Vitamins and Minerals.”  Expect this suit to be dismissed.  There is some online discussion about the potential dangers of K at high doses but I imagine that all vitamins at high doses can be toxic.  What is of interest here is that Sodium Bisulphate Complex is a synthetic version of vitamin K that is significantly more expensive than natural versions readily available.

The question of interest in regards to the pet food label is:  Should pet food manufacturers be allowed to use the powerful “natural” term when they have chosen synthetic versions of ingredients that have natural equivalents?

Lastly, two high-quality dog foods are allegedly contaminated with harmful ingredients. Lead in the case of Blue Buffalo (as if they haven’t garnered enough negative press of late) and pentobarbital in the case of Party Animal’s Cocolicious.  The latter seems particularly disturbing because the meats used were alleged to come from an Evanger’s plant in which dead animals were processed despite being tainted with toxic levels of a euthanasia drug.  New headlines like this are not good for the pet food industry when it comes to consumer trust.

“Made in America”…except for the ingredients that aren’t.

Tyson, Big Heart, and Nestle have all been sued over having ingredients that were not sourced domestically, despite their “Made in the USA” label claim.  These claims are powerful because they connote quality and safety – two things that all pet parents want.  At first I was sympathetic to the overriding online sentiment that pet food manufacturers were being dishonest in the undisclosed use of ingredients that were made in China, for example.  A little digging about these lawsuits, however, suggests that aggrieved consumers are not bringing them.  In fact, these suits have striking similarities:  same law firm (Alabama law firm Davis & Norris (a few Tryk Law in Fresno)), same damage assessment ($5MM) and the same focus on trace ingredients (tapioca starch or vitamin premixes).  A search on some of the defendants’ names takes it one step further: some of the same defendants have brought class action lawsuits against products as diverse as Trojan condoms, True Religion jeans and Lifetime Products basketball hoops.  The settlement of the True Religion suit in July 2015 seems pretty par for the course:  harmed consumers were eligible for a free $25 t-shirt and happily went on wearing their jeans with a foreign-made zipper while the class action defendant profited handsomely.

In fact these suits seem opportunistic in response to California amending their Made in the USA law effective January 2016.  It seems that California was the only state in the nation to require that products with a “Made in the USA” claim be 100% manufactured in the USA vis-a-vis the federal standard that stipulates:  “”Made from all, or virtually all, products from the US.”  Governor Brown changed the CA law to bring it closer to the federal law standard, however, plaintiffs can sue based on pre-2016 harm so it seems that these suits will soon come to an end.

 

All these issues with pet food label ambiguity beg the question if our industry isn’t ready for some better standards when it comes to claims and labels.  In the absence, it looks like the legal system is acting as the new regulatory system within an industry that is lacking.

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