Suit against pet food maker for 'prescription' diet reinstated

A federal appeals court has reinstated a putative class action lawsuit against a pet food manufacturer that charges its so-called “prescription” cat food is essentially the same as less expensive regular cat food.

Holly Vanzant and Dana Land own cats with health problems, according to Tuesday’s ruling by the 7th U.S. Circuit Court of Appeals in Chicago in Holly B. Vanzant and Dana Land, on behalf of themselves and all others similarly situated v. Hill’s Pet Nutrition Inc. and PetSmart Inc.

Their veterinarians prescribed cat food manufactured by Topeka, Kansas-based Hill’s Pet Nutrition Inc. and sold under Hills’ higher priced “Prescription Diet” brand at their local PetSmart Inc. stores using their veterinarian’s prescriptions.

“They eventually learned, however, that the Prescription Diet cat food is not materially different form nonprescription cat food. And the prescription requirement is illusory; no prescription is necessary,” said the ruling. The two women filed a putative class action lawsuit against Hill’s and Phoenix-based PetSmart, charging claims under the Illinois Consumer Fraud and Deceptive Business Practices Act and unjust enrichment.

The U.S. District Court in Chicago dismissed the case, which was reinstated by as unanimous three-judge appeals court panel. The defendants state they fall under the Illinois act’s safe-harbor provision because of the Food and Drug Administration’s Compliance Policy Guide, which they characterize as an “informal regulatory activity specifically authorizing the prescription requirement and prescription label for Hill’s Prescription Diet pet food. They are mistaken,” said the ruling.

“The FDA Guide does not establish industry-wide standards for labeling and marketing of pet food intended to treat or prevent disease. Rather, the document helps FDA staff allocate enforcement resources. It does not qualify as informal regulatory activity.

“Nor does the guide specifically authorize the prescription requirement and label,” said the ruling, in holding the safe harbor does not apply. 

The panel also concluded the complaint adequately alleges that Hill’s and PetSmart committed a deceptive or unfair practice. “The complaint alleges that the defendants’ marketing practices are both deceptive and unfair,” said the ruling.

“The complaint pleads a deceptive-practices claim to the degree of particularity required…That’s enough to reverse the dismissal of the Consumer Fraud Act claim,” said the ruling, also, in reinstating the unjust enrichment claims and reversing the lower court’s dismissal of the case.

Ellen M. Carey, an attorney with the plaintiff law firm in the case, Chicago-based Forde Law Offices LLP, said, “Obviously, we think the 7th Circuit correctly ruled and reversed the case. The 7th Circuit specifically found that the defense argument equated regulatory forbearance with regulatory authorization, and we think that the ruling is right on the money. We look forward to arguing these claims back in the District Court.”

Attorneys for Hill’s and PetSmart did not respond to a request for comment.