Purina Says Beneful Toxic Dog Food Class Action Is ‘Lawsuit-by-Social-Media’

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Nestle Purina Pet Care Co. is asking a California federal court to dismiss a class action lawsuit alleging its Beneful dog food products are toxic and can lead to a dog’s death, calling it a “lawsuit-by-social-media.”

Purina says U.S. District Judge Edward M. Chen should toss the Beneful class action lawsuit filed by plaintiff Frank Lucido in February, in which he alleges the Beneful dog food includes toxic substances that are capable of killing dogs. Lucido tells the story of his three dogs, who he claims became ill from eating Beneful, including one who died, allegedly as a result.

Lucido alleges in his Beneful class action lawsuit that Beneful contains propylene glycol, which he says is “an automotive component that is a known animal toxin and is poisonous to cats and dogs.”

However, Purina says that “propylene glycol — is a commonly used food additive that is Generally Recognized As Safe (GRAS) in human food and dog food (and has been for decades) by both the U.S. Food and Drug Administration (FDA) and the country’s foremost pet food standards organization, the Association of American Feed Control Officials (AAFCO).”

In addition, Purina argues that “propylene glycol is specifically permitted in dog food (as well as many other human foods) under federal law and is affirmatively not the toxic ‘anti-freeze’ ingredient alleged by plaintiff.”

According to the Law360, there is debate among consumer advocacy groups and the food industry over GRAS amounts of toxins like propylene glycol, adding that the FDA does not check the accuracy of what companies claim is a safe amount of a particular additive.

In his class action lawsuit, Lucido also alleges that the dog food includes mycotoxins, which are “a group of toxins produced by fungus that occurs in grains, which are a principle ingredient in Beneful.” He cites the Association for Truth In Pet Food, which reportedly tested “Beneful Original and found that it contained dangerous levels of mycotoxins.”

In response to that claim, Purina says that “mycotoxins are a group of naturally occurring, unavoidable molds found in all grain products.

“Significantly, because FDA recognizes that mycotoxins are present in all food, it regulates the levels of mycotoxins and provides that mycotoxins are permitted in dog food at safe levels,” Purina claims in its motion to dismiss the Beneful toxic dog food class action lawsuit.

“Plaintiff neither recognizes nor grapples with that fact, presumably believing that the presence of any mycotoxins is toxic and actionable,” Purina says. “This is just not true.”

The dog food company says that Lucido’s allegations are “vague and conclusory,” basing his assumptions on “unspecified amounts” of alleged toxins.

When it comes to the presence of propylene glycol and mycotoxins in Beneful dog food, Purina says that they are both “regulated and expressly permitted in dog food,” and “any claim by plaintiff challenging their presence in dog food is barred by California’s safe harbor doctrine.”

Lucido charged Purina with with breach of implied warranty, breach of express warranty, negligence, negligent misrepresentation, strict products liability, violating California’s consumer legal remedies act, violating California’s Unfair Competition Law, and violating California’s False Advertising Law.

He is looking to represent a nationwide class and a California class of dog owners “who purchased Beneful dog food in the past four years and who incurred any out of pocket costs due to illness, injury or death of their dog resulting from the ingestion of Beneful.”

Purina argues that Lucido “does not plausibly allege that consumption of Purina’s Beneful dog food caused any of the injuries alleged in the complaint and, therefore, the complaint fails to state a claim for breach of express and implied warranty, negligence, product liability, negligent misrepresentation,” as well as California’s Unfair Competition Law, False Advertising Law, and Consumer Legal Remedies Act.

Lucido cites other examples from other dog owners who allegedly had a similar experience as he did after feeding Beneful to their dogs.

Purina says that these claims are “unsubstantiated and anecdotal.”

According to the dog food company, “this is a lawsuit attacking a perfectly safe and lawful product based on nothing more than trendy social media hysteria.”

Purina says that it was contacted by “the website leading the charge — www.ConsumerAffairs.com, a self-described ‘non] governmental agency’ that ‘charges a fee to companies to become accredited’ — is a for-profit, pay-for-good-ratings website that admits to providing a means for online posters to be contacted by lawyers,” saying that it “has already reached out to Purina to offer its assistance to ‘manage’ these unfounded accusations.”

Lucido is represented by Jeffrey Cereghino of Ram Olson Cereghino & Kopczynski LLP.

Purina is represented by Dale J. Giali, Keri E. Borders, Andrea M. Weiss, Carmine R. Zarlenga of Mayer Brown LLP.

The Beneful Toxic Dog Food Class Action Lawsuit is Frank Lucido v. Nestle Purina Petcare Co., Case No. 3:15-cv-00569, in the U.S. District Court for the Northern District of California.

UPDATE: On Nov. 17, 2016, U.S. District Judge Edward Chen granted summary judgment to Purina, rejecting testimony from the plaintiffs’ expert that suggested Beneful dog food was the direct cause of their dogs’ illnesses or deaths.