PetSmart, Nestle Purina, Mars Face Prescription Pet Food Class Action

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A class action lawsuit alleges that pet food manufacturers Nestle Purina, Mars Petcare, and Hill’s Pet Nutrition, pet supply chain PetSmart, and veterinary chains Banfield Pet Hospital and BluePearl Vet all conspired with each other to falsely promote “prescription” pet food.

The complaint asserts that there is no reason for each brand of pet food to require a prescription, as they “contain no drug or other ingredient not also common in non-prescription pet food.”

“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,” according to the complaint.

The prescription pet food antitrust class action lawsuit states that U.S. consumers spend close to $24 billion per year on pet food. The complaint alleges that Mars Petcare US Inc., is the largest supplier of pet food in the world, followed by Nestle Purina Petcare Company in second place and Hill’s Pet Nutrition Inc., in fourth place.

Similarly, PetSmart is the nation’s largest pet goods retailer, Banfield Pet Hospital is the largest veterinary chain in the U.S., and Blue Pearl Vet Hospital is the “largest chain of animal specialty and emergency care clinics.” The class action contends that these companies abuse their dominant market positions by promoting “prescription” pet food.

These prescriptions work like normal drug prescriptions – a veterinary doctor gives a consumer a written order for a certain kind of pet food, and the consumer goes to PetSmart, or other location, to purchase the specialty food. The complaint argues that consumers have a “deep rooted sense” of following medical advice and filling prescriptions.

However, the “prescription” pet food sold by Mars, Purina, and Hill’s are not evaluated by the Food and Drug Administration and contain no drugs or other legally controlled substances, the plaintiffs argue. Therefore, according to the class action, selling the expensive pet food as requiring a prescription is unfair and deceptive under California consumer protection laws.

The prescription pet food antitrust class action lawsuit asserts that this false advertising is promoted by all of the companies working together. The veterinary clinics write prescriptions for the food, which is manufactured by the pet food companies and sold through PetSmart.

According to the complaint, Mars owns 79 percent of Banfield Pet Hospital, and PetSmart owns the other 21 percent. Many Banfield clinics are inside PetSmart locations. In addition, Mars owns 100 percent of Blue Pearl Vet Hospital.

The class action is brought by a group of plaintiffs, who all state that they own pets who were prescribed pet food manufactured by one of the defendants. The plaintiffs seek to represent a Class of “all persons in the United States who purchased Prescription Pet Food from PetSmart, Banfield Pet Hospital, Blue Pearl Vet Hospital, or any other Defendant.”

The complaint also asserts subclasses of all consumers who purchased any of defendants’ prescription pet food from any retailer in California. The lawsuit requests restitution, treble damages, and an injunction stopping the defendants from marketing their prescription pet food.

The plaintiffs are represented by Michael A. Kelly, Matthew D. Davis, and Spencer J. Pahlke of Walkup, Melodia, Kelly & Schoenberger, Daniel Shulman and Julia Dayton Klein of Gray, Plant, Mooty, Mooty, & Bennett PA, Michael L. McGlamry, Wade H. Tomlinson III, and Kimberly J. Johnson of Pope McGlamry PC, and Lynwood P. Evans, Edward J. Coyne III, and Jeremy M. Wilson of Ward and Smith PA.

The PetSmart, Nestle Purina, Mars Prescription Pet Food Class Action Lawsuit is Tamara Moore, et al. v. Mars Petcare US Inc., et al., Case No. 3:16-cv-7001, in the U.S. District Court for the Northern District of California.

UPDATE: On April 3, 2017, PetSmart, Nestle Purina, Mars, and other pet food makers, asked a federal judge to dismiss a class action alleging they worked together to fix the price of prescription pet food.

UPDATE 2: On May 15, 2017, the plaintiffs in a class action lawsuit accusing PetSmart Inc. and a group of pet food companies of conspiring to inflate the prices of pet food by marketing it as prescription-only urged a judge not to grant the defendants’ motion to dismiss the litigation.