TOPEKA, Kan. (Legal Newsline) - A Kansas appeals court overturned the dismissal of a lawsuit claiming dog food manufacturers conspired to drive up the price of “prescription” dog food, which despite the name doesn’t have Food and Drug Administration approval or require a prescription to be sold.
Stevie Kucharski-Berger sued Hill’s Pet Nutrition, accusing the company of conspiring with Mars Petcare, Nestle Purina and others to mislead consumers and engage in a conspiracy to control the market for so-called “prescription” dog food by excluding other brands from PetSmart and other retailers. Hill’s Prescription Diet costs $4 a pound vs. $1.65 a pound for Hill’s nonprescription Science Diet.
A trial court dismissed the case for failure to state a claim. The plaintiff couldn’t show causation since she acknowledged she didn’t read any advertising or labels before buying Hill’s Prescription Diet and her veterinarian recommended it, not the manufacturer.
The Kansas Court of Appeals reversed the dismissal in an Aug. 20 decision, however, saying the trial court improperly failed to give proper credit to Kucharski-Berger’s claims. Trial judges must accept all of a plaintiff’s claims as true at the summary dismissal stage, the appeals court said, even if they are implausible. The defense can ask for summary judgment after discovery is completed and the court has a more complete set of facts to consider, the court said.
Hill’s began selling Prescription Diet pet food through veterinarians in the 1960s and in the 1980s it began giving vets “prescription pads” as a marketing gimmick. Hill and the other manufacturers agree there are no prescription drugs in the food.
Hill’s argued the FDA regards pet foods sold to treat medical conditions as drugs requiring agency approval, but the FDA generally declines to enforce labeling requirements if companies sell the food through veterinarians.
Whether it’s misleading is a question of fact for the jury to decide. Hill adequately pled the description of dog food as “prescription” could mislead consumers into thinking it was a drug under the FDA definition and worth paying more for.
The appeals court also rejected the argument the plaintiff failed to prove she was personally misled, since the Kansas consumer protection law doesn’t require it. In fact, Kucharski-Berger told the court she didn’t saw any of Hill’s advertisements or labels before buying the dog food from her veterinarian and she’s still buying prescription dog food.
“Kucharski-Berger is not alleging that the prescription pet food that she is buying is ineffective or harmful to her pet,” the court said. “Her assertion is that the price of the pet food is significantly higher than it should be.”
Hill’s, Purina and Mars control 95% to 100% of the prescription pet food market, the plaintiff claimed, giving them the power to collude on pricing. For evidence, she cited an alleged agreement among the three companies to prevent PetSmart and Banfield from selling prescription dog food made by other companies. The companies are also accused of influencing the FDA to drop a proposal requiring all prescription dog foods to be subjected to agency review and leave in place the rule allowing sales via a vet’s prescription.