PetSmart, Nestle Purina, Mars Seek Dismissal of Prescription Pet Food Class Action

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

Lead plaintiffs claimed in their class action filed this winter that various pet food manufacturers conspired with supply chains, like PetSmart and Banfield Pet Hospital to drive up the price of prescription food.

The plaintiffs further disputed the need for a prescription for such pet food because it allegedly doesn’t contain a drug or other ingredient not found in regular pet food.

In their motion to dismiss the class action, PetSmart, Nestle Purina, and Mars argued that they were simply following U.S. Food and Drug Administration regulations. FDA regulations require a vet’s signature before selling the prescription pet chow to consumers in order to provide additional protection to pets who could be harmed if the food is misused, the pet food makers say.

“Currently veterinarians—and only veterinarians—may authorize pet owners to purchase certain pet foods,” note the pet food producers in their motion.

“Plaintiffs do not dispute that these products deliver therapeutic benefits for pets suffering from a wide range of health conditions, ranging from heart disease to renal failure to obesity,” the defendants state. “No Plaintiff claims that the purchased products were ineffective in any respect.”

In their motion, the pet food producers say that the plaintiffs allege that requiring veterinary authorization to access prescription pet foods is deceptive and “a sham.” However, the defendants point out that the “FDA 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.”

Further, argue the pet food producers, the antitrust class action is precluded by the presence of FDA rules regulating the distribution of prescription pet food.

“Other than complaining that the prices are higher for these products, plaintiffs allege no facts to explain why requiring a prescription from a veterinarian before allowing animals with health conditions to consume the products is inherently deceptive,” the defendants state. “To the contrary, FDA’s position is that ‘in the absence of a valid veterinarian-client-patient relationship, pet owners may misuse such a product, resulting in harm to their pets.’”

The pet food producers also pointed out in their motion that claims that they violated Missouri state law should be trimmed because none of the plaintiffs alleged that they purchased prescription pet food in that state.

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; Lynwood P. Evans, Edward J. Coyne III and Jeremy M. Wilson of Ward and Smith PA; and Michael L. McGlamry, Wade H. Tomlinson III and Kimberly J. Johnson of Pope McGlamry PC.

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 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.