Class Claims Miracle-Gro Sold Toxic Bird Food


     EAST ST. LOUIS, Ill. (CN) - Scotts Miracle-Gro sold bird seed contaminated with poisons that could hurt or kill birds, a class action claims in Federal Court.
     "Scotts failed to disclose that its bird seed contained pesticides that were known to be highly toxic to birds," the complaint states. "Instead, defendant knowingly sold millions of units of its defective and toxic bird feed products, knowing the products would be widely used to feed birds at purchasers' homes, in back yards and in wild and natural environments across the United States. Due to defendant's concealment of material information regarding its use of toxic chemicals in its products, defendant's products were not appropriate for their intended and marketed use as bird feed, and were not worth the purchase price paid by plaintiffs and the class. As a result of defendant's criminal enterprise, thousands of American consumers and other purchasers across the country did not receive the benefit of their bargain and were damaged."
     The products in question were marketed under names including "Country Pride", "Morning Song", "Scott's Songbird Selections" and "Scott's Wild Bird Food," according to the complaint.
     The class claims that Scotts started adding the insecticides Storcide II and Actellic 5E to its bird feed in November 2005 to prevent insect infestation of feed grains during storage. They claim those insecticides were not authorized for use by the Environmental Protection Agency and that the EPA specifically warns that Storcide II is extremely toxic to birds, fish and other wildlife.
     "On information and belief, during the summer and fall of 2007, a pesticide chemist and an ornithologist working for Scotts warned Scotts about the application of the pesticides Storcide II and Actellic 5E to Scotts' Morning Song Products," the complaint states. "These employees warned Scotts about the potential threat to birds from using Storcide II in the bird food Scotts was selling nationwide. Notwithstanding these warnings from its own employees, Scotts, for over two years after it acquired the Morning Song bird food line and for six months after the specific warnings raised by its employees, continued to use the toxic Storcide II on its Morning Song products, an application not authorized by the EPA, as well as another pesticide, Actellic 5E, which was also not authorized for use on bird food."
     The plaintiffs claim Scott continued to sell the products until a recall in March 2008, which took place in anticipation of an upcoming EPA investigation. In January this year, the U.S. Attorney in the Southern District of Ohio charged Scotts with several crimes, including the illegal use of Storcide II and Actellic 5E, according to the complaint.
     The plaintiffs claim that Scotts sold 73 million units of bird food between November 2005 and the 2008 recall. They filed the class action under the Racketeer Influenced and Corrupt Organizations Act.
     The class consists of all citizens of Illinois, Missouri, Minnesota, Arkansas, Kentucky and New Mexico who bought Scott's insecticide-laden products that were manufactured between November 2005 and March 2008.
     The class seeks damages for violations of the Missouri Merchandising Practices Act; Illinois Consumer Fraud and Deceptive Businesses Act; Minnesota Consumer Fraud Act; Arkansas Deceptive Trade Practices Act; New Mexico Unfair Practices Act; Kentucky Consumer Protection Act; unjust enrichment; and violations of RICO.
     The class is represented by Douglas Dowd with Dowd & Dowd in St. Louis.