L-R Caroline McGlamry and Michael McGlamry, Pope McGlamry, Atlanta.With their dogs Daisy, Frankie and Sophie. (John Disney/ ALM) L-R Caroline McGlamry and Michael McGlamry, Pope McGlamry, Atlanta.With their dogs Daisy, Frankie and Sophie. (John Disney/ ALM)

 

After taking on the National Football League on behalf of hundreds of current and former professional football players facing traumatic brain injury, Atlanta class action litigator Mike McGlamry is setting his sights on the nation’s multi-billion-dollar prescription pet food industry.

McGlamry—a member of the plaintiffs’ steering committee in the ground-breaking, $1 billion settlement with the NFL—is joining forces with attorneys in California, North Carolina and Minnesota on behalf of pet owners whom he contends are being duped by veterinarian chains and pet food suppliers and manufacturers into spending unwarranted money on prescription pet foods for their furry companions.

What pet owners don’t realize, McGlamry said, is that pet food manufacturers sell nonprescription versions of their prescription brands at pet stores across the country. The nonprescription brands, he said, are made with the same ingredients as their prescription counterparts and are not materially different from the prescription brands vets prescribe—but cost far less.

A prescription isn’t legally required for the sale of prescription pet food, McGlamry said. If it were, the food would be subject to U.S. Food and Drug Administration approval. But prescription pet foods are not subject to oversight and monitoring by the FDA, as they would be if they included pharmaceuticals or other regulated ingredients, he explained. Nor have the pet food manufacturers ever sought FDA approval for the prescription foods they sell.

But the prescription moniker—and prescription pet food sales through thousands of veterinary clinics that are owned by the companies that produce the food they prescribe—are deceptively capitalizing on America’s changing culture about how we think of our pets, McGlamry said.

McGlamry is an unabashed pet owner. He and his wife, Anne, have had miniature dachshunds since he gave her one as a present after they were engaged. Both grew up with dachshunds. The couple raised multiple dachshunds along with their three girls—one of whom, Caroline McGlamry, is now an associate at McGlamry’s firm, Pope McGlamry, and is working with her father on the case.

“You know, if you told me I had to have this particular food, at some level we could afford it,” McGlamry said. But, he added, there are many pet owners who are “just getting by” financially who, when faced with a vet’s prescription for pet food that might cost them $50 a week, “they do it because their pets are family.”

Caroline McGlamry said that in preparing the case, Moore v. Mars Petcare US, Inc. et al, attorneys heard stories from people who said they couldn’t afford the prescription food but racked up credit card debt because they thought it was medically better for their pets.

In arguing that’s not the case, McGlamry has teamed up with Michael Kelly at San Francisco’s Walkup, Melodia, Kelly & Schoenberger, Lynwood Evans at Ward and Smith in Wilmington, North Carolina, and Daniel Shulman at Gray, Plant, Mooty, Mooty & Bennett in Minneapolis.

They have filed a class action, antitrust complaint against prescription pet food manufacturers Mars Petcare US, Inc., Nestle Purina Petcare Co., Hill’s Pet Nutrition, Inc. and Royal Canin USA, Inc.; veterinarian chains Blue Pearl Vet and Medical Management International, doing business as Banfield Pet Hospitals; and Petsmart, which contracts with and houses Banfield clinics at many of the stores in the chain.

The prescription brands are likely familiar to pet owners. They include Hills Prescription Diet, Royal Canin Veterinary Diet, Iams Veterinary Formula and Purina Pro Plan—all of which McGlamry said have nonprescription counterparts sold in pet stores that cost less than the prescription brands.

McGlamry added that branding pet food as prescription only is the hook that gives vets and pet food manufacturers the cachet to sell pet food that’s virtually indistinguishable from their over-the-counter brands at a higher than market value, and to persuade pet owners that they should invest the additional dollars or, implicitly, their pets’ health will be at risk.

Because prescriptions are associated with a doctor’s orders, Americans—who have increasingly humanized their pets—often accept the recommendation without question, believing the prescriptions are medically necessary for their pets’ well-being, McGlamry said.

Those doctors’s orders are more and more being delivered through vet clinics—such as Blue Pearl and Banfield—that are largely owned by the defendant pet food manufacturers, McGlamry added.

Mars owns Blue Pearl, which the recently amended complaint identified as one of the largest veterinarian chains in the country. It’s also in the process of acquiring another veterinarian chain, VCA (Vet Company of America). Mars has also partnered with Petsmart in ownership of Banfield, which employs more than 3,000 vets.

In owning the vet chains that prescribe the manufacturers’ brands, the pet food companies are in a position to both create and control the market, McGlamry said.

“The manufacturers are leveraging people’s emotional attachment to their pets and trusting their vets,” said Walkup’s Kelly. “Two-thirds of Americans have a pet. Our culture has changed—for the better—in terms of appreciating pets in people’s lives. A number get more support out of their pets than their family. … In what way is that affection and love being unfairly leveraged?”

Kelly, a dog owner, offered himself as an example of how most Americans respond to a veterinarian’s prescription. When a Boston terrier he owned was prescribed eye medication more expensive than any of Kelly’s own prescriptions, he said it never occurred to him to question it. “I love my dog,” he said.

The suit, filed in U.S. District Court for the Northern District of California, is just ramping up. An amended complaint was filed earlier this month, include plaintiff pet owners from California, Missouri, Florida, New Jersey, North Carolina, Massachusetts and New York. Their pets, all named in the complaint, include dogs Pugalicious, Bella, Teddy, Barkley, Kodiak, Zoey, Lola, Barley, Boone, Beau, Abby and Tank; and cats Nikki, Sam, Leo, Zorba, Mimi, Neichi, Felix, Sassycat and Boocat. The first hearing before judge Maxine M. Chesney is scheduled for March 17.

While the defendant manufacturers and vet clinic chains have yet to file an answer or dismissal motion in response to the complaint, they have hired some of the top law firms in the nation to defend them. They include Washington’s Williams & Connolly representing Mars, Banfield, and Blue Pearl; White & Case for Nestle Purina; O’Melveny & Myers for Hill’s Pet Nutrition; and Foley & Lardner for Petsmart.

Christopher Curran, a White & Case Washington partner, referred requests for comment to Purina. A Purina spokeswoman said the company will not comment on the allegations “due to our small share of the veterinary diet market (which is in the one-digit percentile) as well as our small share of this meritless case.”

Two Foley & Larder attorneys could not be reached. Attorneys at O’Melveny & Myers in San Francisco and Williams & Connolly were unavailable for comment Monday.

Contact R. Robin McDonald at rmcdonald@alm.com. On Twitter: @rrobinmcdonald