Animal Owners Seek Class Action Status in Suit Over Pet Food Additives

John Pacenti

Daily Business Review

In a commercial for a well-known canned cat food, the scene opens upon a gourmet kitchen making a "Tuscan" meal for kitty.

In another advertisement for dog food, prime cuts of beef, pristine vegetables and fruits are shown as the ingredients.

But 30 pet owners seeking class action status in a year-old lawsuit against leading pet food manufacturers, packers and their retailers say such conceits are pure fantasy.

The $58 billion spent by consumers on pet food over the last four years has been without the knowledge that the "wholesome," "quality," "premium" or "gourmet" foods they are feeding their pets "are made of wholly or partially of inedible garbage unfit for human consumption."

Among the ingredients in most pet foods, the plaintiffs say, are "restaurant grease, road kill, hair, blood, pus, esophagi, chicken heads, feet and intestines, cow brains, excrement, fetal tissue, moldy grains, hulls, Styrofoam packaging from discarded supermarket meat, euthanized animals -- including dogs and cats -- and/or diseased dying, disabled and dead animals."

Lead plaintiff's attorney Catherine MacIvor said people think of their pets as family members and should be assured the food they are feeding them is not dangerous.

"People deserve to know what they are getting when they buy food for their pets," said MacIvor, partner with Maltzman Foreman in Miami.

Attorneys for the pet food companies and other defendants were mum on the litigation as it heads into an expected contentious fight for documents that the defendants will consider proprietary.

U.S. District Court Judge Cecilia M. Altonaga dealt defendants a blow on April 8 when she refused to dismiss the lawsuit against the substantive defendants.

The pet food companies claimed they are allowed to use words, such as "complete and balanced," "veterinarian recommended" and "natural" in advertising as authorized by the Association of American Feed Control Officials and approved by U.S. Food and Drug Administration. The defense claims the allegations in the lawsuit castigating the entire pet food industry are culled from the Internet.

Altonaga didn't buy it.

"Defendants do not assert that the FDA or any other regulatory body has specifically approved the advertisement or statements at issue in this action, and nothing in the AAFCO standards authorizes defendants to engage in false advertising," Altonaga wrote in her order.

The 84-page, fourth-amended complaint filed April 11 names seven pet food manufacturers: Tennessee-based Mars Petcare, Ohio-based Iams, Kansas-headquartered Hill's Pet Nutrition -- makers of Science Diet, California-based Del Monte Foods, Missouri-based Nestle Purina Petcare, California-based Nutro Products and California-based Natura Pet Products.

Also named are some large retailers: Target, Wal-Mart, Publix Supermarkets, Kroger and Albertsons, as well as pet specialty stores PetSmart, Pet Supermarket, Petco Animal Supplies and Pet Supplies "Plus/USA."

The pet owners seek damages and injunctive relief to prevent pet food companies from advertising their product is akin to human food.

One other defendant is Menu Foods, a Canadian-based packing concern, which really opened the door to litigation nationwide against pet food companies.

Last week, five pet food companies won preliminary court approval of a $24 million settlement in New Jersey of class action lawsuits for selling tainted food. The lawsuits were filed after Menu Foods said more than 180 brands of foods and treats needed to be recalled because they contained melamine-tainted wheat gluten imported from China. About 1,950 cats and 2,200 dogs died from kidney failure from eating melamine-contaminated pet food, according to the U.S. Justice Department.

The Florida lawsuit, though, takes a different path than the Menu Food class action litigation."I think this is a different case because it focuses on advertising as opposed to content of food and the damage done to pets," said attorney Marcos Jimenez, who represented retailers Safeway and Stop & Shop Supermarkets, which were dropped as defendants in the Florida case.

"It's more of a false advertising-type of case than product liability."

The lawsuit alleges defendants "humanize" pet food by, among other things, including pictures or drawings of human-grade ingredients. "Defendants' marketing makes numerous deceptive and/or false claims," the lawsuit alleges.

Besides injunctive relief regarding the false and deceptive marketing and sale of pet food, the eight-count lawsuit claims -- among other things -- fraudulent misrepresentation and concealment, violation of Florida's Deceptive and Unfair Trade Practice Act, negligence and unjust enrichment.

The named plaintiffs are pet owners from around the country. Plaintiff Tone Gaglione, a Stanton, N.J., housewife, said she lost her cat, Misty, due to contaminated food. She fed it Purina's Fancy Feast.

"They show on the commercials that very white Persian cat eating out of a crystal dish. I thought I was giving her the very best," Gaglione said.

Misty started losing weight, and soon an infection wiped out her kidneys. Gaglione's veterinarian said it looked like classic melamine poisoning.

She called Fancy Feast and got some disturbing news regarding its flake chicken and tuna feast meals.

"They were very interested. They started having me read serial numbers off of cans. They said they did have a problem and were tracing it to some plant," Gaglione said.

She asked Fancy Feast where it got its wheat gluten. "They said they may have purchased some off the common market," Gaglione said. That meant it could have been from China, she learned.

A Purina spokesman did not return phone calls for comment.

"I'm just so angry," Gaglione said. "Here you go to the store, and you think you are buying something wholesome for your pet, and you're killing it."

Zibby Wilder, spokeswoman for Seattle-based Born Free USA, which published a report on pet food ingredients, said no one really knows what goes into a pet food using "meat byproducts" because the rendering plants are so secretive. Rendering plants convert animal tissue into by-products such as lard or industrial grease. The by-products are used in consumer goods from lipstick to human and animal food. Wilder said when she used to run an animal shelter, workers would throw the dead animals into a barrel, and the rendering companies would come and get them. A newspaper photo attached as an exhibit to the lawsuit shows barrels of dead cats at a rendering plant.

"There isn't any kind of transparency to the [pet food] industry," Wilder said. "So people don't know what really is in there."

She said the pet food industry has perpetrated a number of myths, including the misconceptions that dry kibble is good for cats. It contains all sorts of fillers, such as corn and wheat, but cats are carnivores -- they should only eat meat, Wilder said.

"There is an epidemic of feline obesity and diabetes on the account of cats being fed dry food," said Dr. Jean Hofve, a former Denver veterinarian who runs a Web site Littlebigcat.com on a variety of subjects, such as "how not to kill your cat."

"What goes into pet food is not anything you or I would ever be served," Hofve said. "It's all condemned for human consumption."

She said only now are pet food companies being held accountable through these lawsuits because of the tragedy of Menu Foods poisoning.

"I think if there is a silver lining, this is it," Wilder said.