A federal appeals court has reinstated a putative class action lawsuit againsta pet food manufacturer that charges its so-called “prescription” cat food isessentially the same as less expensive regular cat food.

Holly Vanzant and Dana Land own cats with health problems, according toTuesday’s ruling by the 7th U.S. Circuit Court of Appeals in Chicago in HollyB. Vanzant and Dana Land, on behalf of themselves and all others similarlysituated v. Hill’s Pet Nutrition Inc. and PetSmart Inc.

Their veterinarians prescribed cat food manufactured by Topeka, Kansas-basedHill’s Pet Nutrition Inc. and sold under Hills’ higher priced “PrescriptionDiet” brand at their local PetSmart Inc. stores using their veterinarian’sprescriptions.

“They eventually learned, however, that the Prescription Diet cat food is notmaterially different form nonprescription cat food. And the prescriptionrequirement is illusory; no prescription is necessary,” said the ruling. Thetwo women filed a putative class action lawsuit against Hill’s and Phoenix-based PetSmart, charging claims under the Illinois Consumer Fraud andDeceptive Business Practices Act and unjust enrichment.

The U.S. District Court in Chicago dismissed the case, which was reinstated byas unanimous three-judge appeals court panel. The defendants state they fallunder the Illinois act’s safe-harbor provision because of the Food and DrugAdministration’s Compliance Policy Guide, which they characterize as an“informal regulatory activity specifically authorizing the prescriptionrequirement and prescription label for Hill’s Prescription Diet pet food. Theyare mistaken,” said the ruling.

“The FDA Guide does not establish industry-wide standards for labeling andmarketing of pet food intended to treat or prevent disease. Rather, thedocument helps FDA staff allocate enforcement resources. It does not qualifyas informal regulatory activity.

“Nor does the guide specifically authorize the prescription requirement andlabel,” said the ruling, in holding the safe harbor does not apply.

The panel also concluded the complaint adequately alleges that Hill’s andPetSmart committed a deceptive or unfair practice. “The complaint alleges thatthe defendants’ marketing practices are both deceptive and unfair,” said theruling.

“The complaint pleads a deceptive-practices claim to the degree ofparticularity required…That’s enough to reverse the dismissal of the ConsumerFraud Act claim,” said the ruling, also, in reinstating the unjust enrichmentclaims and reversing the lower court’s dismissal of the case.

Ellen M. Carey, an attorney with the plaintiff law firm in the case, Chicago-based Forde Law Offices LLP, said, “Obviously, we think the 7th Circuitcorrectly ruled and reversed the case. The 7th Circuit specifically found thatthe defense argument equated regulatory forbearance with regulatoryauthorization, and we think that the ruling is right on the money. We lookforward to arguing these claims back in the District Court.”

Attorneys for Hill’s and PetSmart did not respond to a request for comment.

Source: BI USA

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