Steven Cohen  |  August 22, 2019

Category: Legal News

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kittens eating prescription Hill's cat foodThe Seventh Circuit Court of Appeals has given a class action lawsuit against Hill’s Pet Nutrition and PetSmart a second life after it overturned a district court opinion dismissing the case against the companies.

Plaintiffs Holly Vanzant and Dana Land filed the class action lawsuit over claims that Hill’s “Prescription Diet” cat food was no different than less expensive non-prescription cat food. 

The plaintiffs filed suit against the companies under the Illinois Consumer Fraud and Deceptive Business Practices Act and for unjust enrichment.

Vanzant’s cat Tarik had surgery for bladder stones in 2013 and the veterinarian allegedly prescribed Hill’s Prescription Diet c/d Multicare Feline Bladder Health cat food. 

While at PetSmart, she reportedly purchased the cat food that was marketed as “prescription only,” and continued to buy this food for her cat for a year at a higher price than non-prescription food.  

Land had a comparable experience with her cat. After a veterinarian diagnosed her cat Shief with diabetes, she was prescribed Hill’s Prescription Diet m/d Feline Glucose/Weight Management cat food. 

She says she was given a prescription card and purchased Hill’s Prescription Diet cat food from PetSmart for two years. Land paid a higher price than the non-prescription food as well.

Both plaintiffs believed that the prescription pet food was imperative for their pets’ health and had been approved by the FDA, and could not be sold without a prescription.  

“But the FDA had not approved it, and nothing required that it be sold with a prescription,” the court of appeals opinion states.

A district court judge dismissed the class action claims under two premises: First, the judge opined that the complaint did not have the specifics needed for a fraud claim. Second, the judge stated that “the claim is barred by a statutory safe harbor for conduct specifically authorized by a regulatory body—here, the U.S. Food and Drug Administration (‘FDA’).”

The Seventh Circuit reversed both of these opinions by stating that the safe harbor does not apply in this case, as federal law states that pet food that is intended to treat or prevent disease needs approval of a “new animal drug application.” In addition, the FDA has issued guidance that most pet foods under this category do not have the required approval.

“Without FDA approval, the manufacturer may not sell it in interstate commerce and the product is deemed adulterated and misbranded,” the Seventh Circuit Court of Appeals noted.

The Court states that, “To recover on a claim under the [Illinois Consumer Fraud and Deceptive Business Practices] Act, a plaintiff must plead and prove that the defendant committed a deceptive or unfair act with the intent that others rely on the deception, that the act occurred in the course of trade or commerce, and that it caused actual damages.”

“If pet food intended to treat or prevent disease is purchased from or under the direction of a licensed veterinarian, the FDA is less likely to initiate an enforcement action based on the lack of an approved new animal drug application,” the court also opines.

The plaintiffs are represented by Ellen M. Carey of Forde Law Offices LLP.

The Hill’s Pet Nutrition Cat Food Class Action Lawsuit is Vanzant et al. v. Hill’s Pet Nutrition Inc., et al. Case No. 17-3633, in the U.S. Circuit Court of Appeals for the Seventh Circuit.

 

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15 thoughts on7th Circ. Revives ‘Prescription’ Cat Food Class Action

  1. Mike J Mcdonald says:

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  3. Kim Bouder says:

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