Seventh Circuit Revives Class Action Over ‘Prescription’ Pet Food

CHICAGO (CN) – The Seventh Circuit reinstated pet owners’ class action fraud suit against Hill’s Pet Food, ruling Tuesday that the FDA did not authorize the company’s “prescription” label on high-priced pet food found to be no different than regular pet food.

Holly Vanzant and Dana Land sued Hill’s Pet Nutrition under the Consumer Fraud Act after allegedly discovering that Hill’s Prescription Diet brand cat food, which they had purchased for years for their cats with health problems, does not contain materially different ingredients from regular pet food.

Further, the pet owners showed their vet’s prescription each time they bought the food at PetSmart, but later found out that no prescription is actually necessary to purchase the food.

A federal judge dismissed the lawsuit, finding that their claims are barred by the safe harbor provision for conduct authorized by the U.S. Food and Drug Administration.

The FDA has issued guidance recognizing that most pet foods on the market intended to treat disease do not have formal FDA approval, but the guidance states that the agency is less likely to start an enforcement action if pet owners buy the food with a veterinarian’s recommendation.

The Seventh Circuit revived the class action on Tuesday, based on its reading of the FDA’s guidance.

“‘Less likely’ does not mean ‘will not’; it certainly doesn’t signal authorization,” U.S. Circuit Judge Diane Sykes wrote for a three-judge panel. “Because the Compliance Policy Guide doesn’t specifically authorize the Hill’s prescription requirement, prescription label, and related marketing representations, the safe harbor does not apply.”

The panel also found that the pet owners’ complaint states their fraud claim with sufficient specificity to satisfy federal pleading requirements, and revived their unjust enrichment claim as well.

“The complaint alleges that the prescription requirement, prescription label, and associated marketing materials for Hill’s Prescription Diet were deceptive; that Vanzant and Land saw the specific ‘prescription’ language and symbols when they made their purchases; that the prescription pet food was something less than they expected; and that they suffered damages because they paid a higher price,” Sykes said. “These allegations detail the ‘who,’ ‘what,’ and ‘how’ of the fraud claim with particularity.”

U.S. Circuit Judges Joel Flaum and Daniel Manion joined the opinion.

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