Information about Recall-related Litigation, Dog Food/Agribusiness Sales/Mergers,
and Dog Food/Agribusiness Press Releases
Bandit: targeting a low-flying gull...
Blue Buffalo Settles Class Action Suit:
(In RE: Blue Buffalo Co., Ltd. Marketing and Sales Practices Litigation;
Case No. 14-md-02562-RWS) 12 December 2015 Update: Blue Buffalo Pet Products Inc., (subsidiary of Blue Buffalo Co. Ltd.: Wilton, CT), has entered into a settlement agreement for cases consolidated in the Multi-District Litigation pending in the US District Court for the Eastern District of MO. Blue Buffalo will pay US$32 M into a settlement fund using cash on hand.
The decision to settle is pursuant to acknowledgement by the company in May of 2015 that a “substantial” and “material” portion of Blue Buffalo pet food sold to consumers contained poultry byproduct meal, despite advertising claims to the contrary. That admission came during discovery of the Nestlé Purina Petcare Co. (St. Louis, MO) suit against Blue Buffalo (May of 2014) alleging “false advertising, commercial disparagement, and unjust enrichment arising from defendant Blue Buffalo’s pattern of false and deceptive advertising,” after testing revealed the presence of poultry byproduct meal in some of Blue Buffalo’s top-selling pet foods (Case: 4:14-cv-00859-RWS).
Blue Buffalo denies any wrongdoing and has agreed to this settlement to “eliminate the uncertainties, burden and expense of further litigation.” In the 104 page document, the company states: “Blue Buffalo denies the material allegations of the Consolidated Class Action Complaint and any and all liability with respect to all facts and claims alleged therein, and further denies that any of the Settlement Class Members or anyone has suffered any harm or damage or is entitled to any monetary or relief whatsoever in connection with the Action. …[The agreement] shall in no event be construed as or be deemed an admission or concession by any party of the truth of any allegation or the validity of any purported claim…”
Consumers must file a claim by mid-April of 2016, with the potential to receive $5 for every $50 spent between 2008 and 2015, if they can provide proof via paid receipts.
06 March 2017 Update: United States of America v. Wilbur-Ellis Co. and Hery R. Rychlick, Case: 4:17-cr-00100PLC, US Dist. CT. MO, Eastern District (March 2017). The US Attorney’s office for the Eastern District of Missouri has charged pet food ingredient supplier Wilbur-Ellis (Agribusiness [Feed] Division: Aurora, CO) was with “four misdemeanor counts of introduction of adulterated food into interstate commerce and four counts of introduction of [mislabeled/]misbranded food into interstate commerce” to Blue Buffalo Company, Ltd., (Wilton, CT). Facts emerging from the 2014 lawsuit filed by Purina against Blue Buffalo asserting that the company’s ‘no by-products’ advertising was false led to an investigation revealing that the supplier had substituted turkey by-product meal, chicken by-product meal, hydrolyzed poultry feathers (feather meal) and “B-Grade” poultry by-product meal (chicken bone by-product meal) in a shipment from its Rosser, TX facility for higher-cost ingredients.
06 March 2017 Update: United States of America v. Wilbur-Ellis Co. and Hery R. Rychlick, Case: 4:17-cr-00100PLC, US Dist. CT. MO, Eastern District (March 2017).
The US Attorney’s office for the Eastern District of Missouri has charged pet food ingredient supplier Wilbur-Ellis (Agribusiness [Feed] Division: Aurora, CO) was with “four misdemeanor counts of introduction of adulterated food into interstate commerce and four counts of introduction of [mislabeled/]misbranded food into interstate commerce” to Blue Buffalo Company, Ltd., (Wilton, CT). Facts emerging from the 2014 lawsuit filed by Purina against Blue Buffalo asserting that the company’s ‘no by-products’ advertising was false led to an investigation revealing that the supplier had substituted turkey by-product meal, chicken by-product meal, hydrolyzed poultry feathers (feather meal) and “B-Grade” poultry by-product meal (chicken bone by-product meal) in a shipment from its Rosser, TX facility for higher-cost ingredients.
Phoenix: author of a crimson sky?
Consumer False Advertising Litigation Against Blue Buffalo Consolidated 01 December 2014: In mid-October 2014, the U.S. Judicial Panel on Multi-District Litigation approved a request by Blue Buffalo Company, Ltd. (Blue Buffalo: Wilton, CT) to consolidate seven class action status lawsuits in which the company was “common defendant” (In Re: Blue Buffalo Company, Ltd., Marketing and Sales Practices Litigation, MDL No. 2562). The claims (naming the individual and “others similarly situated,” known as class members/“John Does”) involve allegations by consumers that Blue Buffalo made false and misleading representations (false advertising) about the ingredients in its pet food products, as allegedly indicated by laboratory testing commissioned by the Nestlé Purina PetCare Company (Nestlé Purina: St. Louis, MO) in early 2014.
Pursuant to 28 U.S.C. § 1407, the now centralized suits had been filed in California, Connecticut, Florida, Illinois, Missouri, and New York. Two related actions involving Nestlé Purina are pending in the Eastern District of Missouri (MO). Blue Buffalo had proposed that centralization be limited to the seven “consumer actions” (which were likely to expand as class members are expected to be added), and requested the District of Connecticut as transferee district. Plaintiffs in the MO, Illinois, and Florida actions had asked the Panel to include the Nestlé Purina actions and request centralization in the MO district.
The seven consumer suits allege that Blue Buffalo misled customers by claiming its pet food products did not contain any chicken by-products, corn or grain; and then led them to pay premium prices for the pet food. The class-action lawsuits were transferred to the MO district, where the related lawsuits making the same allegations will be examined concurrently. The panel determined that “significant common discovery likely is located in this district, including the laboratory testing that plaintiffs allege supports their claims.” In its May 2014 suit, Nestlé Purina had offered as evidence tests (which Blue Buffalo dismissed as improperly conducted) indentifying signature elements of poultry by-product meal (including: eggshell, raw feather and “leg scale”) in Blue products, as well as “grain” in samples
Pre-trial discovery of the Nestlé Purina claim appears to have prompted the consumer filings. This process—during which litigants request production of documents and other evidence (including intra-company communications)— had revealed E-mails between Nestlé Purina, feed supply broker Diversified Ingredients (Ballwin, MO), and supplier Wilber-Ellis Corporate (WE Agribusiness: Walnut Creek, CA), an international marketer and distributor of agricultural products, animal feed, and specialty chemicals. Diversified had been engaged by Blue Buffalo to source chicken meal for its pet foods. In May, 2014, a Wilbur-Ellis sales manager wrote to Diversified about less costly “poultry by-product meal” in shipments from its Texas plant, intended for Blue Buffalo. Responding, the Diversified broker referred to the disclosure as a “smoking gun” (regarding the Nestlé Purina lawsuit), and suggested that they should work to avoid legal liabilities and “potential market loss.”
According to Blue Buffalo’s website: “Simply put, these ingredients are cheaper, lower in nutrition, and things we would never include in a BLUE recipe.” However, in mid-October 2014, Blue Buffalo posted a separate statement, claiming that they had been deceived by Wilbur-Ellis, and were severing ties to the supplier. Analysts noted that the statement essentially confirmed the central allegations in the Nestlé Purina lawsuit alleging false advertising: that ingredients from their supplier(s) did or may in fact include by-products that they claim are inferior and that are never included in their products. The Blue statement continues: “…pet food companies are not required to inform consumers of an incident such as this… and you may rest assured that this mislabeling poses no health, safety or nutrition issue.”
Food Safety Advocates are critical that (as of the date of this posting) there are no indications of planning for recall or consumer compensation for purchase of the potentially falsely labeled products. CLICK HERE TO READ THE US JUDICIAL PANEL ON MDL DECISION. Click here for links to the individual cases: Fisher et al v. The Blue Buffalo Company, Ltd. et al, Case No. 14-cv-5937, C. D. CA.; Teperson et al v. The Blue Buffalo Company, Ltd et al, Case No. 14-cv-1682, S. D. CA; Delre et al v. Blue Buffalo Co., Ltd, Case No. 14-cv-768, D. CT; Renna et al v. Blue Buffalo Co., Ltd., Case No. 14-cv-833, D. CT; Mackenzie et al v. The Blue Buffalo Company, Ltd., Inc., Case No. 14-cv-80634, S. D. FL; Stone et al v. Blue Buffalo Company Ltd., Case No. 14-cv-520, S. D. IL; Keil et al v. Blue Buffalo Company, Ltd., Case No. 14-cv-880, E. D. MO; Hutchison et al v. Blue Buffalo Company, Ltd., Case No. 14-cv-1070, E. D. MO; and Andacky et al v. The Blue Buffalo Company, Ltd., Case No. 14-cv-2938, E. D. NY.
Holly: a luminous presence
Costco, Diamond Agreement: $2M To Settle 2012 Class Action Lawsuit;
(provisions for $2 coupons, reimbursement of
the “fair market value” of dead dogs). 03 April 2014: Diamond Pet Foods Inc. (AKA: Schell & Kampeter Inc.; Meta, OH) and Costco Wholesale Corp. (Issaquah, WA) agreed on 28 January 2014 to allot $2US million to settle a proposed class action lawsuit alleging Diamond Pet Foods manufactured and distributed certain pet food products that allegedly led to widespread illness and the deaths of at least five dogs that consumed them. Before approving, a September hearing by a federal court will consider whether the proposed settlement is “fair, reasonable and adequately funded.” The suit included claims for breach of express and implied warranty, negligence, strict product liability, unjust enrichment and violations of NY business law. As part of the agreement,
the defendants deny misconduct.
In 2005, the company recalled 350,000 bags of food manufactured at the Gaston plant, and later paid $3.1 million to settle class action claims of negligence. alleged breach of warranty, and deceptive trade practices. The suit, filed in the U.S. District Court for the Eastern District of Tennessee, alleged the company sold dog food contaminated with aflatoxin, a mold commonly found in grain-based (corn) pet foods (Bass v. Schell & Kampeter, Inc., d/b/a Diamond Pet Foods Inc. and Diamond Pet Foods; No. 3:05-CV-58). As part of that agreemtnt, defendants denied wrongdoing.
The 2012 suit (subject of the 2014 agreement), filed by NY resident Barbara Marciano, claimed that dog food she purchased at a Westbury, NY Costco and manufactured at Diamond’s plant in Gaston, SC caused her one of her dogs to become ill and die, and sickened a second (Marciano v. Schell & Kampeter Inc. et al., case number 2:12-cv-02708: US District Court for the Eastern District of NY).
In April 2012, the Food and Drug Administration (FDA), in collaboration with the Centers for Disease Control (CDC) and other state and local officials, investigated a multi-state outbreak of Salmonella infections. The FDA’s investigation was prompted by NY Department of Agriculture officials who reported they discovered Salmonella in sealed packages of Diamond brands. Suspension of delivery and then, recall of 9 brands followed (Chicken Soup for the Pet Lover’s Soul, Country Value, Diamond, Diamond Naturals, Premium Edge, Professional, 4Health, Taste of the Wild, Apex, Kirkland Signature, Canidae, and Wellness).
The settlement assigns 3 subclasses: Subclass I includes consumers who purchased Diamond products in 2011 and 2012 and allots a maximum of $750,000 for payment up to a maximum value of two bags of pet food per dog; or, a lower pro rata share of the fund for this subclass if the settlement fund is exhausted. Subclass I members can request reimbursement of the cost of veterinary care and/or the “fair market value” of the pet as set forth in Subclass II. Subclass II members will be paid from a $1.25 million fund and may be reimbursed for “reasonable and necessary” veterinarian testing, care and/or treatment. If this fund is exhausted, Subclass II members will receive a lower, pro rata share. If death of a dog is claimed, a class member submitting a valid claim shall receive the “fair market value” of the dog, or, if the fund is exhausted, a pro rata share of the market value of the dog, and, if applicable, relief for veterinary care. Subclass III members (bought food but did not report illness) will be relieved in the form of $2 coupons for purchase of Diamond products. A maximum of 50,000 coupons will be distributed. Valid claim forms must be submitted for all classes.
The agreement provides that Diamond will employ new and improved quality control procedures and therapeutic reforms that had not been implemented prior to the recalls, for a period of three years, and grants plaintiffs privilege to review and ensure these standards are complied with.
Moore, et al. v. Mars Petcare US, Nestlé Purina, Hill’s Pet Nutrition, Petsmart Inc., Medical Management Intl. (DBA Banfield Pet Hospital), & Blue Pearl Vet, LLC: Case 3:16-cv-07001, US Dist. CT Northern CA (December 2016: diversity, fraud, antitrust) (seeking certification, consolidation) Plaintiff: Tamara Moore, (Alameda County, CA) and others, on behalf of “similarly situated consumers,” who purchased prescription pet foods from defendant businesses and others, a "Nationwide Direct Purchaser Class," principally alleging collusion (anticompetitive conspiracy through interlocking and common-nature businesses) through interstate commerce to support price fixing, thereby enabling defendants to market and sell products at above-market prices that would not otherwise prevail in the absence of the prescription-authorization requirement. Asserting that:  defendents’ prescription pet food contains no “drug” or other ingredient not also common in non-prescription pet food; and  defendents’ marketing, labeling, and/or sale of prescription pet food is deceptive, collusive, “entrenched” and monopolistic and in violation of federal antitrust law (15 U.S.C. § 1: Sherman Antitrust Act), and California consumer-protection, false advertising, and unfair competition statutes (Bus. & Prof. Code §§ 17200, et seq).
Plaintiffs contend that ordinary consumers expect that a prescription requirement implies that a substance is medically necessary, contains a drug, medicine or controlled ingredient, has been FDA evaluated and legally requires a prescription. Plaintiffs contend that the products (Hill’s Prescription Diet, Purina Pro Plan Veterinary Diets, Royal Canin Veterinary Diet, and Iams Veterinary Formula) are misbranded because they contain no “drug” as defined by 21 U.S.C. § 301 et seq., the FD&C Act, but, “in the pursuit of profit, Defendants market, label, and/or sell it as if a prescription is required. The complaint cites that none of the formulas comply with the Act’s registration and listing requirements. Plaintiffs contend that these companies abuse their dominant market position to promote “prescription” diets for dogs and cats that is made from the same ingredients found in common pet foods, and that as such, “Retail consumers, including Plaintiffs, have overpaid and made purchases they otherwise would not have made on account of Defendants’ abuse and manipulation of the ‘prescription’ requirement.”
Discussing the concept of “vertical integration,” the complaint describes that defendant Mars is also the owner of Blue Pearl Vet Hospital (the largest veterinarian hospital chain in the US), and partners with the largest specialty pet retailer, PetSmart, in the ownership of the largest veterinarian clinic chain, Banfield Pet Hospital (21% and 79%, respectively): both of which employ veterinarians writing these pet food prescriptions. The common ownership and control of distribution and prescription-writing relationships thus combine to implement their price-fixing agreement: “Each Defendant has known and understood that it was engaging in deceptive practices that could not succeed unless each other Defendant had agreed to engage in similar conduct. Thus, each Defendant knew and understood that if even one Defendant acknowledged that no Prescription Authorization was actually required or exposed the scheme, all would be forced to follow and the scheme would fail.” The complaint also postures that the anticompetitive conspiracy agreement “impedes new entry [into the marketplace] to disrupt [the] collusive arrangement.” The complaint seeks injunctive relief and award of compensatory, statutory, exemplary, and punitive damages.
Sensenig v. Nestle USA, Inc. et al , Case No. 3:16-cv-50022, U.S. District Court N.I.
(February 2016: 28:1332; diversity, fraud).
(Seeking certification) Plaintiff: Marsha Sensenig (Lee County, IL), asserts that defendant Nestlé’s (St. Louis, MO) pet food division Purina engaged in false advertising by publicizing their Ultramix® and Organix® brands (Merrick Pet Care/ Castor & Pollux: recently acquired by Purina) as being American-made (“Made with Love in the USA”) when they contain foreign-made ingredients (a Chinese premix of vitamins, minerals, starch and amino acids).
Sensenig seeks to recover damages on behalf of plaintiffs in CA, FL, MI, MN, MI, MS, NJ, NY, and WA, that have consumer protection laws similar to those of IL. The complaint states that [they] “paid more for the products than they were actually worth. [They] believed the products to be made in the USA and relied upon that in [their] purchase decision.” According to the document, “Recalls of pet food, often because of adulterated foreign-sourced ingredients, have been rampant in recent years. These recalls have made the news and resulted in public desire for safe pet foods with ingredients sourced in the US.” Sensenig alleges that Nestlé has violated the Uniform Deceptive Trade Practices Act, the Illinois Consumer Fraud and Deceptive Business Practices Act and similar state statutes. In addition to Class certification, she is seeking injunctive relief requiring Nestlé to cease the mislabeling of their pet food products, damages, and attorneys’ fees.
Sean Randall v. Merrick Pet Care, Inc. et al, Case No. 2:2016cv00139, CA Central District Court
(January 2016: 28:1332 diversity, fraud).
(Seeking certification, consolidation) Plaintiff: Sean Randall (Ventura City, CA) on behalf of consumers who purchased pet food and treats manufactured by defendants [Does], Merrick Pet Care, Inc. (Amarillo, TX), Nestle Purina Petcare, Co, Nestle USA, Inc (St. Louis, MO) and Pet Appeal One, LLC, (Castor and Pollux Natural Petworks LLC: Clackamas, OR); three separate $5M suits.
Citing violations of CA’s Unfair Competition Law and Consumer Legal Remedies Act, Randall asserts that defendants knowingly mislabel certain dog and cat food and treats as “Made in the USA” when they include ingredients sourced outside the U.S. The complaint discusses the use of vitamin, mineral and amino acid “premix” packs made in China and ingredients sourced from India: “The buying public’s preference for pet foods and treats that are made exclusively in the United States stems in part from the widely-publicized and widespread recall of pet foods in 2007, when hundreds, and perhaps thousands, of dogs died of renal failure after being fed pet foods containing gluten sourced from China that turned out to be adulterated with toxic chemicals. Defendant(s) (are)… aware of this episode… For this and other reasons, the buying public generally believes that “Made in the U.S.A.” products are safer to feed their animals than foreign-sourced ingredients.”
A statement attributed to Merrick and Pet Appeal One read: “We fully comply with labeling laws for our made in the USA… natural pet food recipes. …All of our recipes are made in the USA, and the majority of our ingredients come from within the United States with the exception of those ingredients that we cannot get here in a quality, consistent supply (for example, New Zealand lamb). And, of course, we never go to China for our ingredients.”
Fraser v. Wysong Corp., Case no. 3:2016cv00043, CA Northern District Court (January 2015: 28:1332 diversity, other fraud). Plaintiff Adrienne Fraser (San Francisco) alleges Wysong Corporation (Midland, MI) violated CA’s Unfair Competition Law (UCL) and CA Consumer Legal Remedies Act (CLRA). Fraser purchased Wysong’s Epigen™ Canine/Feline Diet food at two San Francisco retailers, as well as online. The complaint states that Wysong falsely labeled the products with bold capital “MADE IN USA Since 1979” with an American Flag symbol, when it allegedly includes “vitamin, mineral and amino acid packs [premix] that contain ingredients sourced outside the U.S.”
The complaint discusses that the pet food recalls of 2007 (wherein pet deaths were linked to Chinese-sourced melamine) led to “increased consumer preference for both fully American-made pet food and grain-free pet food” (that they would pay a premium price), and that “the buying public generally believes that “Made in the U.S.A.” products are safer to feed their animals than foreign-sourced ingredients.” Seeking injunctive relief and restitution under the UCL, the “Plaintiff and class members… paid more for the product than its actual value.” The complaint alleges that Wysong was “motivated solely for profit” and with awareness that consumers would be harmed. CLICK HERE FOR INFORMATION.
Fitzpatrick v. Tyson Foods Inc., Case No. 2:15-cv-02285, US D.C. for the Eastern District of CA. (November 2015: 28:1332 Diversity-fraud, personal property - other fraud, ). (Seeking certification) Plaintiff Susan Fitzpatrick (Sacramento, CA) alleges that Tyson Foods Inc. (Springdale, AK) misleadingly labels its Nudges® brand dog treats as “Made in the USA” when ingredients are sourced from foreign countries. With an American flag as well as a “Made in USA” label on the packaging, she based her purchase decision on assumption that the product was entirely made and manufactured in the US. However, according to the complaint, the Nudges® pet food products allegedly contain tapioca starch that is made from cassava root, which cannot be commercially grown in the US. The products also contain non-US sourced vitamin, mineral, and amino acid “premix” packs.
Fitzpatrick alleges that Tyson’s website contains similar claims, along with the websites of retailers who transmit those claims. The complaint asserts that consumers would be deceived and misunderstand that the treats have ingredients sourced outside of the US: “…Most consumers possess very limited knowledge (of the marketplace)… Consumers are particularly vulnerable to these deceptive and fraudulent practices.”
Seeking $5M on behalf of a proposed class, Fitzpatrick alleges that most pet owners who purchase “Made in the USA” products are willing to pay extra because they believe are made in the US, and additionally, those labels induce purchase by leading them to believe they are supporting American industry.
Citing the CA Unfair Competition Law and the CA Legal Remedies Act, Fitzpatrick seeks injunctive and regulatory relief: “Defendant’s scheme to defraud consumers is ongoing and will victimize consumers each and every day until altered by judicial intervention. …The buying public’s preference for pet foods and treats that are made exclusively in the US stems in part from the widely-publicized and widespread recall of pet foods in 2007, when perhaps thousands of dogs died of renal failure after being fed pet foods containing gluten sourced from China that turned out to be adulterated with toxic chemicals,” Tyson responded that “We believe that labeling them as “Made in the USA” is entirely consistent with applicable law.” CLICK HERE FOR INFORMATION.
Fitzpatrick v. Big Heart Pet Brands, et al: Case no. 2:2015cv02116, CA Eastern D.C. (October 2015: 28:1332 diversity, other fraud). Plaintiff Susan Fitzpatrick (Sacramento, CA) asserts that Big Heart Pet Brands (San Francisco, CA) and parent company J.M. Smucker Co.(Orrville, OH) that acquired the business in March of 2015 are defrauding consumers about the origin of their products. Citing the CA Unfair Competition Law (UCL) and the CA Consumer Legal Remedies Act (CLRA), she seeks $5M on behalf of consumers, claiming that defendants falsely advertise their Milo’s Kitchen™ brand of grain-free dog and cat food and treats as Made in USA, despite the “products containing tapioca – a starch made from the cassava root, which is not commercially grown in the US” and also bulk vitamin “premix” “sourced outside the US.” The defendant’s dog treats were made in China until 2015— when the scandal and ensuing publicity over foreign-made jerky treats reached its zenith— and is now advertised as produced with American poultry in the US. The company had stated: “Our consumers said that they really wanted to see products made in the United States, with no ingredients sourced in China and we decided to make a commitment to do that.”
Seeking injunctive relieve to stop defendant’s use of “false labels,” as well as restitution under the UCL and CLRA, Fitzpatrick asserts that she and other consumers relied on Milo’s labeling and that the value of the treats were in fact less than they paid: “The buying public’s preference for pet foods and treats that are made exclusively in the US stems in part from the widely-publicized and widespread recall of pet foods in 2007, when perhaps thousands of dogs died of renal failure after being fed pet foods containing gluten sourced from China that turned out to be adulterated with toxic chemicals… the buying public generally believes that “Made in the U.S.A.” products are safer to feed their animals than foreign-sourced ingredients.” She asserts that defendant’s advertising, packaging, and public statements infer trust that consumers are being protected from unsafe foreign ingredients.
CLICK HERE FOR INFORMATION.
Izzy: assessing the "competition"
Reed v. Dynamic Pet Products et al: Case No. 3:15-cv-00987, CA S.D. Ct. (May 2015: Torts, personal injury, product liability; 28:1332 Diversity-Product Liability) (Seeking certification) Plaintiff: Khristie Reed (Vista, CA) on behalf of consumers who purchased “Dynamic Pet® Real Ham Bone for Dogs” treats manufactured, marketed, distributed or sold by defendant companies (Washington, MO); alleging that defendants falsely marketed the bones as safe, despite knowledge that the product is defective and prone to splintering into shards that may slice through dogs’ digestive systems. Reed’s basset hound died after such an event. Dynamic began nationally distributing the dog chew in 2001. Reed alleges that Dynamic was aware of the dangers at least from 2006, subsequent to
The complaint describes that in 2010, the US FDA investigated the issue and issued a general warning against allowing dogs to chew bones, as they could splinter, leading to injury or even death, and that further to that warning, the Missouri Better Business Bureau alerted Dynamic and Frick’s to the dangers of their product. However, defendant neglected to add a safety warning and misrepresented the chews as “safe for your pet” (appropriate for the purpose of which it is intended: known as warranty of merchantability). Reed alleges that, aware that the bones were “inherently dangerous,” Dynamic made individual settlements to certain consumers pursuant to a fraudulent “secret warranty program.” Seeking certification, Reed asserts that the potential number of class members is large but unknown as they are “numerous and geographically dispersed.”
In 2012, Frick altered the label of the product, which currently declares: “Pet owner assumes liability…” and has, according to online postings, responded: “As you are aware, a pet owner is responsible for properly feeding and monitoring their pets. They are also responsible for maintaining an education related to the appropriate diet for their pets.”
In the complaint (Violation of the CA Consumers Legal Remedies Act; Violations of CA Business & Professions Code; Breach of Implied Warranty; Fraud, Negligent Misrepresentations), Reed asserts that Frick’s created Dynamic to sell waste ham bones: “Frick’s Meat Products Inc. is a major meat product manufacturer and supplies sausages and other prepared meats to food retailers nationwide. As a nationwide distributor, Frick’s generates considerable slaughter house waste, i.e., the bones and trimmings of a slaughtered animal that cannot be sold as meat or used in meat-products. In an effort to profit from the waste resulting from the manufacture of its products, Frick’s knowingly and intentionally supplies Dynamic with bones for the purpose of selling them as the Real Ham Bone For Dogs. Dynamic and Frick’s share the same ownership, management and headquarters and are the alter egos of one another. Frick’s and Dynamic work in concert with each other to profit off the sale of waste ham bones, marketing them to pet owners as safe and appropriate chew toys for dogs, when they are not.”
The St. Louis, MO, Better Business Bureau (BBB) is “urging consumers to use extreme caution when purchasing Dynamic Pet Products Real Ham Bone,”suggesting that complaints may be more widespread due to likely underreporting by consumers; and has asked the US FDA to investigate.
Lucido v. Nesltlé Purina Petcare Company, et. al. (Does 1-200), Case No. 3:2015cv00569, US District Court, N.D. CA (February 2015: Property damage, Product liability).
11 November 2016 Update: Citing lack of evidence, summary judgment granted to defendant Nestlé Purina.
Pursuant to a surge of complaints about Beneful® in 2013, the FDA initiated an investigation and sought to inspect three manufacturing plants, based upon a triangular geographical approach of those complaints. FDA collected and performed microbial, mycotoxin and toxicological analyses of samples related to six consumer complaints that involved 7 dogs (6 illnesses, 1 death) in CA, IL, MA, VA and NJ. Laboratory analyses of samples collected during the field investigations revealed six violations regarding labeling for (unlisted) ethoxyquin (antioxidant /preservative in pet foods to prevent the rancidification of fats); as well as elevated levels of cyanuric acid and melamine analogs in six other samples. Purina, however, refused to allow FDA to take photographs of manufacturing plants, to disclose the actual contents or weights of individual ingredients that went into lots, to provide FDA with copies of records, or to disclose the safety tests the company performs on ingredients. No traceback activity was conducted during this investigation. No recall was issued: “CVM decided to provide educational outreach to Nestle Purina Corporate Headquarters.”
The court’s dismissal order decreed that plaintiff’s two expert witnesses (veterinarians) were not qualified as “experts” and as such their testimony was disregarded. In discovery, Dr. Questen had postured that “It is very important to a reasonable consumer to assume that Beneful is safe for dogs to eat” and “…it is very important to a reasonable consumer to assume all of Beneful® ’s ingredients have been tested to ensure that they are free from toxins that could cause their dogs to get sick or die.” Food safety advocates were startled that Purina’s counsel countered: “Her common knowledge and generalized interactions with pet owners in the course of her veterinary practice is scientifically irrelevant and not a proper methodology for studying consumer purchasing decisions.” They pointed to Purina advertising prominently suggesting consumers to “Ask your Veterinarian” about pet food options on the company’s website; and offering incentives to veterinarians to propose Purina Pet Foods to consumers. Nevertheless, in its dismissal, “The Court agrees with Purina that Dr. Questen is not qualified as an expert to provide opinions about what a reasonable consumer would consider material when deciding whether to purchase dog food.”
Discovery focused on analysis of 28 samples revealed three types of toxins: (industrial grade) propylene glycol; mycotoxins, a fungal mold on grain; and the heavy metals arsenic and lead. The levels did not exceed US FDA limits, however. Plaintiff’s expert, animal toxicologist Dr. John Tegzes, had claimed that FDA toxin limits were “poorly designed” and based only on short-term (“weeks”) exposure. Tegzes had concluded that chronic exposure to mycotoxins, heavy metals and glycols posed a “significant health risk” to dogs and could adversely affect their health. U.S. District Judge Edward Chen (San Francisco) disagreed, however, granting summary judgment in favor of Nestlé Purina. Chen determined that Tegzes lacked important data to support his assumption: 1] the specific level of mycotoxins in the Beneful® food, and, 2] what specific level of mycotoxins poses a safety risk. Chen also noted that veterinary records of the subject dogs were not evaluated, as a possible contributory factor to their health: “Dr. Tegzes’s opinion is not reliable because the scientific literature he invokes is either too speculative or too imprecise,” adding that “Tegzes cites no epidemiological evidence that long-term exposure to mycotoxins at levels below the limits set by the FDA leads to
serious health risks for dogs.”
The judge also rejected Tegzes’ testimony that Nestle Purina failed to adequately test its dog food, finding Tegzes had no specialized knowledge of pet food manufacturing, testing or control procedures to offer such an opinion. Because the plaintiff’s case relied upon Dr. Tegzes opinions, it thus had “no evidentiary support,” and, denying the plaintiff’s request to submit additional evidence, entered motion for summary judgment (closing the case).
Food safety advocates note that in its dismissal, the court never confronted the issue that Nestlé Purina used “Industrial Grade Glycols” (propylene glycol)— forbidden by FDA for use in any human or pet food—which was never denied by the company.
10 June 2015 Update: Plaintiff Lucido filed an amendment (Case No. C-15-0569 EMC) to his original complaint on 08 June 2015, adding 26 additional dog guardians to its request for certification (the complaint petition now includes plaintiffs in CA, CO, FL, IL, IN, KS, MA, MN, MI, MO, NJ, NY, OH, PA, TX and WA). The document alleges that Nestlé Purina Petcare Co. failed to disclose that its Beneful® brand contains substances that are toxic to animals, including (amended terminology) Industrial Grade Glycols (IGG), lead, arsenic and mycotoxins. The original complaint (05 February 2015: see immediately below) focused on propylene glycol: an automotive antifreeze component used as a stabilizer/humectant and preservative in pet foods. The US Food and Drug Administration (FDA) categorizes “Pharmaceutical Grade Propylene Glycol” as Generally Recognized as Safe (GRAS) for ingestion; however, the FDA prohibits the use of IGG in food products due to concerns over contamination and impurities in the manufacturing process (FDA also prohibits propylene glycol as an additive in cat foods: 21 CFR 589.1001). Pursuant to the Federal Food, Drug and Cosmetic Safety Act (1938: 21 USC Ch. II, § 321 (f) “The term ‘food’ means (1) articles used for food or drink for man or other animals…” The amended complaint also charges that Purina offered cash settlements with non-disclosure agreements to some of the plaintiffs.
The products named in the complaint include Beneful® Healthy Weight, Beneful® Original, Beneful® Incredibites™, Beneful® Healthy Growth For Puppies, Beneful® Healthy Smile, Beneful® Healthy Fiesta, Beneful® Healthy Radiance and Beneful® Playful Life. The suit also alleges that while aggressively defending its product, Purina has been tracking posts of “injured consumers” on social media, and offering settlements tied to agreement of non-disclosure.
02 February 2015: Plaintiff Frank Lucido (San Francisco) alleges that Nestlé Purina Petcare Co. (St. Louis, MO) and John Does 1 through 200 manufactured and sold Beneful® dog food, which injured his three dogs. Lucido alleges that Purina added an ingredient to the grain-based food (propylene glycol: used as a stabilizer/humectant and preservative in pet foods) that was a known animal toxin and is poisonous to dogs, and grains with fungus that produce deadly mycotoxins, “a group of toxins produced by fungus that occurs in grains, which are a principle ingredient in Beneful®.” Propylene glycol is chemically related to ethylene glycol, a highly toxic automotive antifreeze component; however, the US Food and Drug Administration (FDA) categorizes former additive as “generally recognized as safe” (GRAS) when used
in small amounts.
According to Lucido, Beneful® is advertised as a healthful and nutritional dog food, but his experience and others has been the opposite. The complaint requests class-action status, which if granted could turn thousands of dog owners nationwide into plaintiffs. The complaint charges Nestlé Purina with breach of implied and express warranty, negligence, negligent misrepresentation, strict products liability, and violation of state consumer legal remedies acts, CA Unfair Competition Law, and CA False Advertising Law; seeking more than $5 million in damages.
Lucido’s three dogs began eating Beneful® exclusively in early 2015. In mid-January, the German Shepherd began to lose hair and emit an unusual odor, becoming “violently ill” days later. Lucido’s veterinarian determined that the dog was suffering from internal gastrointestinal bleeding and liver failure “consistent with (food) poisoning.” On Jan. 23, the plaintiff’s wife found their English Bulldog dead in their yard: according to the complaint, “Post-mortem veterinary examination revealed signs of internal bleeding in the dog’s stomach and lesions on his liver, much like [the German Shepherd].” The Labrador then also became ill. Plaintiff alleges economic losses, as a result.
According to the complaint, thousands of internet posts describe “dogs becoming ill, in many cases very seriously ill, and/or dying after eating Beneful®,” and that “The dogs show consistent symptoms, including stomach and related internal bleeding, liver malfunction or failure, vomiting, diarrhea, dehydration, weight loss, seizures, bloating, and kidney failure,” and citing specific examples. Lucido is seeking to represent two classes: a nationwide class and a California subclass for dog guardians “who purchased Beneful® dog food in the past four years and who incurred any out of pocket costs due to illness, injury or death of their dog resulting from the ingestion of Beneful®.” As the case proceeds, Lucido’s attorney will seek “discovery,” to secure disclosure of Nestlé’s sourcing metrics for the dog food, including specifically, storage methods that commonly lead to growth of toxic molds.
Click here to read Nestlé Purina response: 25 February 2015.
Winston: pensive thoughts...
Monteleone v. The Nutro Company, et al., Case No. 2-14-cv-00801-ES-JAD, in the US Dist. Ct. for the District of NJ. (February 2014: 28:1330 diversity, other contract). 14 September 2015 Update:Mars Inc. and Nutro Co. Settle False Advertising Class Action. Under express statement disavowing responsibility, the proposal creates a $500,000 settlement fund to distribute $2 cash or $5 gift certificates to class members-, reduced pro rata to 50% if the total claims exceed the fund’s limit.
11 February 2014: Plaintiff Damien Monteleone (Glen Ridge, NJ) on behalf of others similarly situated, alleges that the Nutro Company (Franklin, TN) and Mars Inc. (McLean, VA) manufactured, improperly labeled, marketed and sold its Ultra™ dog food products that included a “Guaranteed Analysis” regarding the Bacillus species, even though the dog food products were allegedly incapable of forming live Bacillus. The suit alleges the Bacillus guarantee is false and misleading in violation of NJ consumer protection law, and that the products were not worth the price consumers paid for them.
Gandara v. Nestlé Purina Petcare Co., et al., Case No. 1:2013cv04159, U.S. Dist. Ct., N.D. Ill.
(June 2013; property damage, product liability). Plaintiff: Rosalinda Gandara (San Diego, CA), arguing that the US Federal Drug Administration (FDA) investigated reports of dogs suffering from illness and death after consuming chicken jerky treats and found the products contained residue from antibiotics that Plaintiff believes cannot be sold without a prescription from a veterinarian. Additionally, Plaintiff alleges that some of these antibiotics are “not approved by the FDA for use in food animals.” According to Gandara, who had purchased the treats for several years, she “suffered injury in fact by losing money as the result of her purchase of Waggin’ Train® brand Chicken Jerky Products, which she would have not purchased had she known that they contained illegal antibiotics.” The case was transferred to Illinois Northern District Court in September of 2013 for consolidation with the Adkins complaint (collectively known as Adkins, et al. v. Nestle Purina PetCare Company, et al., Case No. 1:12-cv-02871 (N.D. Ill.). In May of 2014, the parties signed a settlement agreement establishing a $6.5M recovery fund that included stipulations for new quality assurance/quality control procedures (QA/QC) in manufacturing, and packaging changes so that "Made in China" would appear more prominently.
Holt v. Globalinx Pet, LLC, et al. (Kingdom Pets), Case No.: 8:2013cv00041
(January 2013: property damage, product liability). Plaintiff: Jennifer Holt (Los Angeles, CA), on behalf of consumers who purchased certain Kingdom Pets® dog treats manufactured, marketed, distributed or sold by defendants; charging that the company knew the treats were poisonous but concealed the health concerns to pet owners. Defendant moved for dismissal for lack of subject-matter jurisdiction and inadequate pleading (failure to state a claim: U.S. District Court for the Central District of California). However, Judge David Carter concluded Holt had shown a sufficient link (evidence) between the treats and her dog’s injuries (subsequently euthanized) to survive the motion. In January of 2014, Holt’s suit was denied certification as a class action: Judge Carter agreed with defendant’s motion that she cannot use California consumer protection statutes as a basis for a nationwide claim, because other state statutes are “materially different” than her home state’s laws. The civil action is therefore terminated.
Duran v. Sergeant’s Pet Care Products Inc., et al., Case No. 1:2013cv00762 U.S. Dist. Ct., N.D. Ill.
(January 2013: contract liability). Plaintiff: Edgardo Duran (Illinois), on behalf of consumers who purchased Sergeant’s Pur Luv® dog treats manufactured, marketed, distributed or sold by defendants; that the center of the treats are not digestible, causing bowel obstructions, injury, or death to dogs.
Mawaka v. Nestlé Purina Petcare Co., et al., Case No. 1:2012cv10036, U.S. Dist. Ct., N.D. Ill.
(June 2012: personal injury, product liability). Plaintiff: Elizabeth Mawaka (Hartford, CT) on behalf of consumers following the death of her two boston terriers after they ingested chicken jerky treats, against Nestlé Purina, Waggin’ Train, LLC, Wal-Mart Stores, Inc., and Sam’s Club Inc. following BJ's Wholesale Club Inc., Nestle Purina Pet Care Co., Pet Supplies Plus of Connecticut XI LLC, Inc Wal-Mart Stores, Sam's Club, and Costco Wholesale Corporation. Consolidated with the Adkins v. Nestlé case in September of 2013 and transferred to the Northern Illinois District Court (collectively known as Adkins, et al. v. Nestle Purina PetCare Company, et al., Case No. 1:12-cv-02871 (N.D. Ill.). In May of 2014, the parties signed a settlement agreement establishing a $6.5M recovery fund that included stipulations for new quality assurance/quality control procedures (QA/QC) in manufacturing, and packaging changes so that "Made in China" would appear more prominently.
Matin v. Nestlé Purina Petcare Company, et al., Case No. 1:2013cv01512, U.S. Dist. Ct., N.D. Ill.
(December 2012: statutory). Plaintiff: Faris Matin (Los Angeles, CA), on behalf of consumers similarly situated, against defendants Nestlé Purina PetCare Company, Milo’s Kitchen LLC, Waggin’ Train LLC, and Petsmart Inc., claiming injury to her dog after consuming jerky treats. The case was transferred to Illinois Northern District Court in February 2013 for consolidation, collectively known as Adkins, et al. v. Nestle Purina PetCare Company, et al., Case No. 1:12-cv-02871 (N.D. Ill.). In May of 2014, the parties signed a settlement agreement establishing a $6.5M recovery fund that included stipulations for enhanced quality control/quality assurance within the defendant’s manufacturing, and packaging changes so that “Made in China” would appear more prominently.
Ruff v. Del Monte Corporation, et al., Case No. 2:2013cv00518 U.S. Dist. Ct., W.D. PA.
(October 2012: statutory, warranty). Plaintiff: Maxine Ruff, (NC) on behalf of consumers similarly situated, actions against Del Monte Corporation and Milo’s Kitchen; after her dog became ill and died after eating chicken jerky treats. Ruff seeks to represent those who bought the treats for their own or personal, household, or family use, rather than for resale or distribution, as well as two proposed sub-classes. In April 2013, transferred to U.S. District Court, Western District of PA, where other federal class action cases against the defendants are pending (Mazur v. Del Monte). In August 2013, consolidated with Mazur, Funke, and Langone: now referred to as “Milo’s Dog Treats Consolidated Cases, Civil Action No. 12-1011” (Case 2:12-cv-01011-CB-MPK).
Funke v. Del Monte Corporation, et al., Case No. 2:2013cv00519, U.S. Dist. Ct., W.D. PA.
(October 2012: statutory). Plaintiff: Mary Funke (Los Angeles, CA), on behalf of consumers similarly situated, against Del Monte Corp. and Milo’s Kitchen LLC, after her dog(s) became sick and died from eating chicken jerky treats. The complaint accused Del Monte and Milo’s Kitchen of misrepresenting the treats as wholesome and nutritious when they knew that the products were actually contaminated. Funke seeks to represent those who bought the treats from 2007 to the present, as well as four sub-classes. In April 2013, transferred to U.S. District Court, Western District of PA where other federal class action cases against the defendants are pending (Mazur v. Del Monte). In August 2013, consolidated with Mazur, Langone and : now referred to as “Milo’s Dog Treats Consolidated Cases, Civil Action No. 12-1011” (Case 2:12-cv-01011-CB-MPK).
Mazur v. Del Monte Corporation, et al., Case No. 2:2012cv01011, U.S. Dist. Ct., W.D. PA.
(October 2012: personal injury). Plaintiff: Liza Mazur (Pittsburgh, PA), compensatory and punitive damages, on behalf of consumers in the US similarly situated (except LA and Puerto Rico), against Del Monte Corp. and Milo’s Kitchen LLC, alleging common law fraud, unjust enrichment, negligence, product liability, unfair trade, breach of warranty, failure to warn and defective manufacture or design. Her claim is to represent consumers who purchased any dog treat product containing chicken jerky manufactured or sold by defendants and containing chicken imported from China, within the past four years. Mazur claims that Del Monte and Milo’s Kitchen did not adequately warn her or the public about the “substantial risk of death or harm associated with their dog treats.” In August 2013, consolidated with Mazur, Funke, and Langone: now referred to as “Milo’s Dog Treats Consolidated Cases, Civil Action No. 12-1011” (Case 2:12-cv-01011-CB-MPK).
Langone v. Del Monte Corporation, et al., Case No. 2:2013cv00709, U.S. Dist. Ct., W.D. PA.
(September 2012: statutory, warranty). Plaintiff: Christopher Langone (NY), on behalf of similarly situated consumers, against defendants Del Monte Corporation and Milo’s Kitchen LLC; seeking restitution as well as a corrective advertising campaign and an order “compelling destruction of all packaged Chinese Chicken Jerky products that do not have warning labels” because “Del Monte continues to market the product as wholesome…” According to the complaint, “Neither Plaintiff nor any other reasonable person would buy dog food with Chinese chicken jerky if they knew the danger or that there was a substantial risk of illness,” and “Del Monte has intentionally concealed known facts concerning the safety of their dog treats in order to increase or maintain sales.” In April 2013, transferred to U.S. District Court, Western District of PA where other federal class action cases against the defendants are pending (Mazur v. Del Monte). In August 2013, consolidated with Funke, Langone and Ruff: now referred to as “Milo’s Dog Treats Consolidated Cases, Civil Action No. 12-1011”(Case 2:12-cv-01011-CB-MPK).
Harold: thoughtful statesman...
Adkins v. Nestlé Purina PetCare Co., et al., (Does 1-10, Waggin' Train LLC, Wal-Mart Stores Inc. and Nestlé Purina Petcare Company),
Case No.: 12-cv-02871, U.S. Dist. Ct., N.D. Ill. (April 2012: statutory). Plaintiff: Dennis Adkins(Chicago); his case consolidated with 20 others into a putative class action on behalf of themselves and other purchasers of chicken jerky dog treats manufactured by defendants Nestlé Purina PetCare Company, and Waggin’ Train LLC (“Waggin’ Train”), and sold by defendants Wal-Mart Stories, Inc., Target Corporation, Costco Wholesale Corporation, BJ’s Wholesale Club Inc., Pet Supplies Plus of Connecticut XI, LLC, CVS Caremark Corporation, and Walgreen Company. In September 2013, most of the strict liability claims against the merchants were dismissed, owing to statutory protection afforded sellers that sell defective products in several states; as well as failure of plaintiff to provide facts sufficient to suggest that merchant defendants knew that the treats were defective; (i.e., lack of personal jurisdiction). Certain claims of consumer warranty, breach of warranty and strict liability were also dismissed. Dismissal is without prejudice (see below): plaintiffs are directed to file amended complaints.
In September of 2013, the case was transferred to the Northern Illinois District Court for consolidation with other ongoing class actions (see link below). In May of 2014, the parties signed a settlement agreement establishing a $6.5M recovery fund that included stipulations for new quality assurance/quality control procedures (QA/QC) in manufacturing, and packaging changes so that "Made in China" would appear more prominently. Click here for details of the Atkins case and the SETTLEMENT AGREEMENT.
You can brighten the long, lonely day of a needy dog:consider volunteering at a shelter. Your used but servicable linens, towels, bathmats, or cushions can provide comfort while he waits. Need help affording veterinary care? click HERE • Find low-cost spay neuter services: click HERE
Food & Safety Recalls/FDA Advisories for Dog Foods: click HERE
To think about: American taxpayers spend more than $1 billion annually to fund municipal animal shelters.
In those facilities, 14,000 animals are killed each day, often brutally: even in archaic gas chambers...
many within merely hours of their arrival: why are they called shelters?