Prescription pet food scuffle has justices chasing their tails

WASHINGTON (CN) — A fight over prescription pet food forced the U.S. Supreme Court into a tug-of-war between logic and experience on Monday.

At issue is whether pet owners Anastasia Wullschleger and Geraldine Brewer can move their case against pet food giants Royal Canin and Nestle Purina over pet food labeling back to a Missouri court instead of a federal court.

The justices seemed torn, oscillating between upholding the status quo or justifying an unreasoned ruling.

“If we were creating a system where all the rules cohered, yours is the better rule,” Justice Elena Kagan, a Barack Obama appointee, told the pet owners. “But, I think on the other side of the table is, look, this anomalous rule has been accepted by everybody for many, many years.”

Wullschleger and Brewer claim Royal Canin and Purina violated food and drug law by misrepresenting their veterinarian-recommended food as “prescription.” The pet owners said prescription pet food isn’t regulated by Food and Drug Administration standards like other prescription medications. The active ingredient in the food is also available without a prescription, even though owners are forced to receive veterinarian approval before purchasing.

The owners paid a premium price for prescription food assuming it had been rigorously tested to treat their pets’ illnesses. When Wullschleger and Brewer discovered it had not, they filed a class action against Royal Canin and Purina.

Wullschleger and Brewer accused the companies of violating Missouri antitrust law and the state’s Merchandising Practices Act. Royal Canin and Purina said the pet owners invoked federal questions and should heard by a federal court.

Royal Canin and Purina initially won the fight to move the case to federal court, but their victory was short-lived after the Eighth Circuit ruled to move the case back to the state court after Wullschleger and Brewer amended their complaint to remove the federal questions.

At the Supreme Court, Royal Canin and Purina argued that the pet owners’ victory was erroneous and cut against precedent.

“To rule for respondents on the question presented, this court would need to overrule or distinguish away St. Paul Mercury, Cohill, Rockwell, Gibbs , Carlsbad, Rosado, Powerex, Osborn against Haley, International College of Surgeons, and* Wisconsin Department of Corrections* ,” Katherine Wellington, an attorney with Hogan Lovells representing the companies said during oral argument.

“That’s decisions of this court, on top of dozens and dozens of court of appeals decisions that have consistently and unanimously supported petitioners’ position," she added.

While Justice Samuel Alito, a George W. Bush appointee, said when many courts of appeals decide something the same way they’re normally correct, but there are exceptions to that rule.

“There can be circumstances in which there can be sort of a snowball effect in busy courts of appeals, particularly on certain categories of issues,” Alito said. “If a court of appeals decides a question one way, then the next one just latches onto that, and pretty soon, courts of appeals confronting an issue are very likely to say, wow, if all these other circuits have gone this way, I’m not going to create a conflict in the circuits on this.”

The thrust of Royal Canin and Purina’s argument was that amended complaints must remain in federal court, but they acknowledged that in other scenarios that wasn’t the case. Most justices seemed to think the departure was illogical.

“It seems to me your argument comes down to the impact of removal because somehow … if it was brought originally in federal court or amends if it’s brought originally in state court, those have an impact, you say, on federal question jurisdiction,” Justice Ketanji Brown Jackson, a Joe Biden appointee, said.

Justice Amy Coney Barrett, a Donald Trump appointee, said the companies’ best argument came from the trail of appeals court rulings.

“I have a lot of trouble with the textual argument … but, I mean, it does give me some pause to say, well, all these courts of appeals have thought this was okay,” Barrett said.

Chief Justice John Roberts questioned if departing from the lower court consensus would be a diversion of its own.

“We have had cases where we came out the other way than every court of appeals had come out, right?” Roberts said.

Wullschleger and Brewer said it didn’t make sense to exclude a tiny selection of cases from the rule governing the majority. They argued that the Eighth Circuit’s ruling needed to be upheld to save decades of needless litigation.

Justice Elena Kagan, a Barack Obama appointee, questioned the impact of diverging from precedent beyond the consequences of this case.

“In 99% of the cases, there’s a remand,” Kagan said. “So, what harm is this rule doing? This rule has existed in every single circuit court for many years.”

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