PetSmart Customers Fight Motion to Dismiss Prescription Pet Food Class Action

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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 have urged a judge not to grant the defendants’ motion to dismiss the litigation.

In addition to PetSmart, the prescription pet food class action lawsuit names as defendants Mars Petcare US Inc., Royal Canin USA Inc., Nestle Purina Petcare Company, Hill’s Pet Nutrition Inc., Medical Management International Inc. and BluePearl Vet LLC.

The defendants filed a motion to dismiss the prescription pet food class action lawsuit last month.

“Defendants have conspired to restrict the distribution of certain dog and cat food so that it can be sold only with a prescription from a licensed veterinarian, thousands of whom Defendants employ, with the purpose and effect of enhancing prices for these products, although they are substantially the same as non-prescription dog and cat food in their ingredients and nutritional value,” the plaintiffs argue in their motion opposing the defendants’ motion to dismiss the prescription pet food class action lawsuit.

The plaintiffs challenge the defendants’ motion to dismiss the PetSmart class action lawsuit, claiming they have used misleading terms in the legal documents. Instead of using the term “Prescription Authorization” as the plaintiffs do in the prescription pet food class action lawsuit, the defendants reportedly use the term “Veterinary Authorization.”

According to the plaintiffs, there is a “chasm of difference” between the term “Prescription Authorization,” which requires FDA approval and many other safeguards, and the term “Veterinary Authorization,” which merely indicates veterinarian involvement. The plaintiffs maintain the defendants’ prescription pet food meets none of the requirements for “Prescription Authorization.”

They claim the defendants are being deceptive not only in the marketplace with regard to the sale of prescription pet food products, but also in its motion to dismiss the class action lawsuit. They allege the defendants’ use of “Veterinary Authorization” is intended to direct the conversation away from their requirement that the pet foods need an unnecessary prescription.

The pet food antitrust class action lawsuit was filed in December 2016 by a group of plaintiffs who claim their pets were prescribed pet food manufactured by one of the defendants. They seek to represent a Class of consumers who purchased prescription pet food from PetSmart, Banfield Pet Hospital, Blue Pearl Vet Hospital, or any of the other defendants.

The plaintiffs also seek to represent a subclass of consumers who purchased any of the defendants’ prescription pet food from any retailer in the state of California.

A hearing has reportedly been scheduled for July 7, 2017.

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 & Benntt 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, Kimberly J. Johnson and Caroline G. McGlamry of Pope McGlamry PC.

The PetSmart Prescription Pet Food Class Action Lawsuit is Tamara Moore, et al. v Mars Petcare US Inc., et al., Case No. 3:16-cv-07001, in the U.S District Court for the Northern District of California.