Court: Pet owners may sue makers of pet foods over price inflation
Price #Price
A Jack Russell terrier has a meal. A federal court that a lawsuit against prescription pet food manufacturers may move forward.
A federal appeals court reinstated a lawsuit Tuesday by dog and cat owners who accused sellers of “prescription pet food” of consumer fraud and price inflation by advertising their products as medically approved.
The products, also known as Rx pet foods, have been widely sold for about 15 years for a variety of conditions and require a prescription from a veterinarian. According to the lawsuit, they can cost two to three times as much as nonprescription pet foods.
The lead plaintiff, Tamara Moore, an Alameda County resident, said she bought prescription diet food for her dog, Pugalicious, after the pet had surgery for kidney stones. Renee Edgren of San Francisco said that when her dog, Barkley, developed skin and coat problems, she purchased “Veterinary Skin & Coat Plus Response” dog food from her veterinarian.
They and others in the proposed class-action suit said the active ingredients in the products turned out to be similar to those in nonprescription foods, but the products cost more.
The suit was dismissed by U.S. District Judge Maxine Chesney of San Francisco, who said they failed to present evidence that the products had been marketed deceptively. But in a 2-1 ruling Tuesday, the Ninth U.S. Circuit Court of Appeals in San Francisco said the pet owners’ allegations, if proved, could show fraud under California consumer laws.
“The brand name of ‘prescription pet food’ itself could be misleading,” said Judge Richard Paez in the majority opinion. He noted that the manufacturers, Mars Petcare and Hill’s Nutrition, and pet food stores formerly sold the foods only to veterinarians but now sell some of them directly to consumers.
“It certainly seems plausible that a reasonable consumer would at least partially rely on the prescription labeling to pay more,” Paez said. “Pets can, after all, be as cherished and cared for as family members, and a reasonable person in plaintiffs’ shoes would rationally gravitate toward a ‘prescription’ product if that family member’s health is at risk.”
Paez was joined by Michael Murphy, a judge from the federal appeals court in Denver temporarily assigned to the Ninth Circuit. In dissent, Judge Johnnie Rawlinson argued that only the U.S. Food and Drug Administration has authority to regulate the products, so a suit should not be allowed under California’s consumer-fraud law. She also said the customers could not plausibly claim they were misled, because the pet foods were not advertised as government-approved.
Michael von Loewenfeldt, a lawyer for the plaintiffs, said the entire marketing process is deceptive.
“These major pet food companies invented a product that they claim is prescription pet food,” he said. “The companies imply that the food is regulated and that it’s better than other kinds of food, in the same way prescription cough medicine is better.”
A jury should decide whether the customers were misled, von Loewenfeldt said.
Lawyers for the companies could not be reached for comment.
Bob Egelko is a San Francisco Chronicle staff writer. Email: begelko@sfchronicle.com Twitter: @BobEgelko