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Pet owners’ suit over prescription pet food reinstated

dog food

A federal appeals court on Tuesday reinstated putative class-action litigation filed by pet owners against pet food manufacturers, veterinary clinic chains and a pet goods retailer alleging that the sale of prescription pet food exclusively through veterinarians, or with vet approval, was a deceptive practice and against California law.

The plaintiffs allege in the litigation that the prescription requirement and advertising lead reasonable consumers to falsely believe the pet food has been subject to government inspection and oversight and has medicinal and drug properties, according to the divided opinion by the 9th U.S. Circuit Court of Appeals in San Francisco in Tamara Moore et al. v. Marks Petcare US, Inc. et al.

The plaintiffs contend the defendants violated California’s Unfair Competition Law, False Advertising Law and Consumer Legal Remedies Act.

Ms. Moore allegedly spent $3.44 per pound for urinary care prescription dog food when nonprescription pet food that had a number of common ingredients sold for $2.73 and $2.45 per pound.

The U.S. District Court dismissed the case on the basis that the plaintiffs did not state a plausible claim. In reversing the lower court, the three-judge panel’s majority opinion said the prescription pet food labeling “does appear deceptive and misleading. Common sense dictates that a product that requires a prescription may be considered a medicine that involves a drug or controlled substance. … Moreover, the brand name of ‘prescription pet food’ could be misleading.”

The majority said that “the district court seems to have discounted the potential to mislead in part because vets play a role in the referral process.” To “whatever extent that the district court assumed that vets could tell the difference between food and medicine, that reasoning is insufficient under the reasonable consumer test,” the ruling said.

The dissenting opinion states, “The sum and substance of Plaintiffs’ allegation regarding the prescription requirement is that an individual seeing the word ‘prescription’ in connection with pet food would reasonably assume that the pet food has been vetted and approved by the FDA.

“However, Plaintiffs did not elucidate the basis for the ‘reasonable assumption’ that the pet food has been vetted and approved by the FDA.”

Plaintiff attorney Michael A. Kelly, a shareholder with Walkup, Melodia, Kelly & Schoenberger in San Francisco, said he was pleased with the decision. He said the case can now proceed to discovery in what “essentially is a scheme” in which manufacturers charge 25% to 40% more for ordinary pet food that does not contain medication.

Defense attorneys in the case could not be reached for comment.