The Seventh Circuit Court reinstated pet owners’ class action fraud suit against Hill’s Pet Food, ruling 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 ingredients that are any different from regular pet food.According to the filing, “Vanzant and Land owned cats that had severe health issues.  After several appointments with veterinarians, the plaintiffs purchased prescription cat food, per the veterinarian’s recommendations. The food was made by HPN and purchased at a PetSmart location.”  The plaintiffs also argued “the word prescription suggested the food had been evaluated by the U.S. Food and Drug Administration (FDA), allegedly deceiving consumers.”The case was initially struck down on November 29, 2017, by District Judge Samuel Der-Yeghiayan, who stated “the plaintiffs said they compared the ingredients of the prescribed cat food to others on the market, yet they chose to continue purchasing the cat food based on the veterinarian’s recommendation.”  Der-Yeghiayan granted a motion to dismiss the case.  He said, “for the case to advance, plaintiffs must demonstrate the allegations in the complaint plausibly suggest that the plaintiff has a right to relief, raising that possibility above ‘speculative level.’”

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Der-Yeghiayan agreed with the defendants, stating that the plaintiffs “could have chosen to forego the therapeutic food for their cats” and adding, “To the extent that [the] plaintiffs seek to pursue unfair practices claims under ICFA, there are no allegations that would suggest that [the] defendants engaged in conduct that would violate public policy.  He also stated, “The allegations presented by [the] plaintiffs suggest that defendants acted in accordance with the guidance provided by the FDA, which is the relevant regulatory body.”The Seventh Circuit revived the lawsuit, however, based on reading the FDA’s guidance, which suggests that most pet foods intended to treat disease do not have formal agency approval but the “agency is less likely to start an enforcement action if pet owners buy the food with a veterinarian’s recommendation.”  The court argued, “‘Less likely’ does not mean ‘will not’; it certainly doesn’t signal authorization.”  The decision, written by U.S. Circuit Judge Diane Sykes for a three-judge panel, read, “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 judges’ panel also wrote in its decision, “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.  These allegations detail the ‘who,’ ‘what,’ and ‘how’ of the fraud claim with particularity.”

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Seventh Circuit Revives Class Action Over ‘Prescription’ Pet FoodJudge cans fraud class action vs PetSmart, Hill's Pet Nutrition over prescription cat food prices