A North Carolina law firm is one of the primary drivers of a class action lawsuit that alleges that prescription dog and cat food is a marketing scheme devised by pet food companies to pump up their profits.
The lawsuit shines a spotlight on an industry that Marion Nestle, a professor of nutrition and food studies at New York University and the author of one book about pet food and co-author of another, calls “basically an unregulated industry.”
“At the heart of it, the world’s largest pet food manufacturers are requiring that certain pet foods be sold by prescription even though there is no legal requirement for that prescription,” said Wilmington attorney Jeremy Wilson of Ward and Smith, one of four law firms behind the lawsuit that seeks to represent consumers across the country. Ward & Smith has five North Carolina offices, including one in Raleigh.
Wilson also contends that requiring a prescription from a veterinarian misleads consumers, providing cover that enables pet food companies to charge excessive prices.
“Prescription pet food contains no drug or other ingredient not also common in non-prescription pet food,” the lawsuit states.
Defendants in the civil lawsuit filed in federal court in California in December include the companies behind four brands of prescription pet foods that dominate the market: Hill’s Prescription Diet, Purina Pro Plan Veterinary Diets, Royal Canin Veterinary Diet and Iams Veterinary Formula. Iams Veterinary Formula was withdrawn from the market at the outset of this year.
Also named as defendants are PetSmart, the nation’s largest retailer of pet products; Banfield Pet Hospital, which operates in 900 PetSmart locations as well as dozens of stand-alone locations and is the largest veterinary chain in the country; and BluePearl Vet, which which has about 50 locations. Mars Petcare, which owns the Iams and Royal Canin brands, also owns Banfield and owns about 90 percent of BluePearl.
Collectively, the lawsuit argues, the companies “control the sale of prescription pet food from manufacture to veterinarian to retail, which has allowed their deception and price-fixing conspiracy to be implemented and perpetuated with minimal risk of detection or defection.”
The companies either declined to comment on pending litigation or didn’t respond to a request for comment.
But, in court papers filed earlier this month seeking dismissal of the case, the companies denied they were engaged in an “anticompetitive conspiracy.” Moreover, they noted that Banfield and Blue Pearl employ only about 7.5 percent of the nation’s “companion animal veterinarians,” and therefore they can’t exercise control over the market.
Of the 15 named plaintiffs in the lawsuit, the companies further argue, just two purchased their prescription pet food from PetSmart. The others purchased their prescription products from unnamed veterinarians. Many veterinarians also sell prescription pet food.
The companies also counter that prescription pet food, far from being a sham, complies with Food and Drug Administration guidelines.
The FDA, the companies note, “has repeatedly cautioned in its public guidance that consumers might be misled – and their pets endangered – if the pet foods at issue were sold without advance consultation with and authorization by a veterinarian.”
In support of that claim, they include as an exhibit an FDA “compliance policy guide” issued in April 2016.
“When these products are marketed directly to pet owners, there is a greater potential for product misuse and/or misunderstanding of the role of the product in the disease treatment,” the guidelines state. “For example, owners of diabetic dogs and cats may misinterpret claims to ‘control blood glucose’ to represent that the product is the sole treatment required for diabetic dogs and cats when, in fact, these animals my require insulin therapy or other treatments to adequately control blood glucose.”
The guidelines also note that prescription pet foods “have not been evaluated by the FDA for safety, efficacy, or nutritional adequacy.”
Two North Carolina pet owners who purchased prescription pet food for their pets are among the named plaintiffs who seek to represent consumers nationwide. They are Isaac Duncan Ham IV of Charlotte, whose dog Boone suffers from digestive conditions, and Alayna Johnson of Leland in Brunswick County, whose dog Beau has an allergy that causes hair loss and sores.
Both of the North Carolina plaintiffs declined a request for an interview through their attorneys.
Billions in sales
Prescription pet food accounts for about 5 percent of the $24 billion in pet food sold in the U.S. each year, according to the lawsuit, or more than $1 billion a year.
Prescription pet food is sold to address a lengthy list of ailments and diseases.
“There’s a cancer food. There’s a brain food. There’s a calm food for cats with attention-deficit disorder,” said Ward and Smith attorney Trip Coyne.
Susan Thixton, a pet food safety advocate and creator of the truthaboutpetfood.com website, said she’s long expected a lawsuit along the lines of the pending class action suit.
“Lawyers are the new regulatory system for pet food, because we don’t have much of a regulatory system for pet food,” Thixton said.
Pet food, she said, “is the only food on the planet that’s allowed to make a health claim” by the FDA.
She argues the FDA is out of bounds in carving out a loophole for pet food makers.
“We can’t say an apple a day keeps the doctor away, but we can say this pet food will cure your cat’s kidney disease,” Thixton said. “We have to have consistency.”
Nevertheless, she added, “my own vet ... believes these foods are helping – and they might be. I’m not questioning if they are effective.”
Special formulas, not drugs
Dr. Korinn Saker, a veterinarian who’s an associate professor of clinical nutrition at N.C. State University’s College of Veterinary Medicine, said that prescription pet foods are specially formulated to help manage different diseases but don’t contain any drugs.
“They’re formulated ... to address the appropriate protein level, or to address the appropriate amino acid profile in the diet, or to address how much sodium should be in the diet for that pet,” Saker said.
“I think if an animal has a well-documented disease, such as cardiac disease or kidney disease or liver disease, a majority of veterinarians will reach for a prescription diet to help manage that,” she said.
Saker also believes that requiring a prescription to purchase these pet foods is warranted given that the formulations aimed at specific diseases may not meet the recommended nutrient profile for healthy pets. For example, depending on the disease, prescription pet foods can contain unusually high or unusually low amounts of protein.
“So you want to keep a close eye on (the pet) and you want your veterinarian to have evaluated your pet and and made the decision that this prescription diet is appropriate,” she said.
The lawsuit doesn’t address the efficacy of prescription pet food.
“Our case doesn’t necessarily contend this is good food (and) it doesn’t necessarily contend that it’s bad food,” said Coyne. “It contends that it is improper to co-opt the term prescription and the prescription requirement that American consumers are familiar with.”
“The term prescription means something to the public,” Coyne said. “There are assumptions there’s a drug in there, that there is medicine, that it’s been evaluated as a drug or medicine by the FDA. None of that is true here.”
“By analogy,” said Wilson, “I accept spinach is better for me than a cheeseburger, but that doesn’t mean I need a prescription to get spinach.”
Requiring prescriptions, the lawsuit contends, is a ruse that enables the companies to charge much higher prices.
“Consumers ... would not purchase prescription pet food, or would not purchase prescription pet food when priced so excessively relative to similar non-prescription pet foods, if not for the misleading marketing” of requiring a prescription, the suit states.
Coyne said the price of prescription pet food is 40 percent or more higher than other pet food food, depending on whether you compare it to premium non-prescription pet food aimed at specific ailments or less pricey products.
Last week PetSmart was selling a 3.5-pound bag of Purina ONE Special Care for cats with urinary problems for $7.99, or $2.28 per pound, while the same size bag of Purina Pro Plan FOCUS for such cats was $12.99, or $3.71 per pound. Meanwhile, a 6-pound bag of the prescription-only Purina Pro Plan Veterinary Diets for cats with urinary problems was $31.73, or $5.29 per pound.
The per-pound difference in price was even greater for the 7-pound bags of the non-prescription Purina products.
More and more pet owners who bring their dogs or cats to N.C. State’s Veterinary Health and Wellness Center are requesting homemade diets to treat their pets because they are “very concerned about what they think is a lack of transparency among the big companies that make pet foods,” said Saker. “I think that it’s sort of a general increase in our population’s skepticism about everything.”
Saker accommodates those requests. She can formulate recipes that pet owners can make that will approximate – or, in her words, “ provide the same or a very similar nutrient profile” to – a commercially sold prescription pet food for each pet’s particular ailment.