Prescription Pet Food is facing a legal battle (opinion) they justly deserve. But unless the lawyers suing them understand the intricacies of pet food and fight this battle with that knowledge, Big Pet Food walks away again – no worse for wear, continuing to mislead consumers.
The lawsuit against prescription pet food was announced in December 2016. Basically the lawsuit claims that prescription pet food over charges consumers for a product that is not a drug – that prescription pet food is a “deceptive scheme”. Four months later, lawyers representing the pet food manufacturers (Hill’s Pet Nutrition, Mars Petcare, Nestle Purina) has requested the court dismiss the case based on FDA’s “enforcement discretion to permit the sale of these products.”
The request to dismiss states:
“Plaintiffs omit FDA’s directives regarding the Veterinary Authorization requirement.”
“The requirement is one of the critical factors that the agency considers in exercising ‘enforcement discretion’ not to take action against manufacturers who sell pet foods intended for use to diagnose, cure, mitigate, treat, or prevent diseases…”
In other words, Hill’s Pet Nutrition, Mars Petcare and Nestle Purina are claiming that FDA allows them to be ‘deceptive’, allows them to sell a pet food as a drug when it is not a drug, and to overcharge consumers as they see fit. And they are right.
The FDA openly allows prescription pet food to violate law.
Per law – no food is allowed to make a health claim, that is unless said food goes through a drug approval process (no food has). The drug approval process is detailed – including legal requirements for sufficient safety testing, and proper manufacturing conditions. However…thanks to the FDA’s ‘enforcement discretion’, pet food is allowed the one and only exception to the ‘food cannot cure/treat disease’ laws. Pet food is the ONLY food that can claim it cures disease (and it doesn’t even matter if that pet food contains illegal recycled waste ingredients).
But here’s the catch, here is what the prescription pet food lawyers don’t want consumers (and the lawyers representing consumers) to know…
Per a Supreme Court decision, the FDA does not have the authority to make the decision that pet food and only pet food can cure disease.
Government agencies are allowed to interpret the laws they are charged with enforcing, and they are provided with some leeway. As example, the FDA is charged with enforcing the laws of the Federal Food Drug and Cosmetic Act. FDA is allowed to interpret their enforcement of these laws – per the Supreme Court – as long as that interpretation is “reasonable”.
But what is ‘reasonable interpretation’?
The Supreme Court answered that question. The highest court decided a government agency such as the FDA could interpret law at their discretion as long as the interpretation is not “manifestly contrary to the statute“.
And that’s the catch. FDA’s interpretation of drug laws applied to prescription pet food are over the top ‘manifestly contrary’ to existing law.
Little to none of the legal requirements drugs are held to are applied to prescription pet food.
Manifestly contrary to law, prescription pet food…
…is not required to be extensively safety and effectiveness tested through multiple clinical trials scrutinized by FDA;
…is not required to be manufactured according to the legal Good Manufacturing standards (pristine ‘medical’ conditions) required of drugs (they are manufactured no differently than any other pet food);
…can even include illegal recycled waste ingredients (animal fat, animal digest, by-products).
So, while the prescription pet food company’s argument for dismissal – that FDA allows us to sell pet food as a drug – is a valid argument — the bigger argument is that FDA has no authority to allow pet food to be sold as a drug. FDA’s prescription pet food policy is manifestly contrary to drug laws.
Let’s hope the lawyers representing prescription pet food consumers see this post and learn to fight the dirty pet food game with a Supreme Court decision.