Prescription pet food lawsuit lacks basis, said analyst

A pet food industry consultant explained why the lawsuit against prescription pet foods lacks a foundation.

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(Jason Morrison |
(Jason Morrison |

In December 2016, Mars PetcareNestle PurinaHill’s Pet Nutrition, PetSmart and veterinary services providers were presented with a class action lawsuit over prescription pet foods, but a pet food industry consultant said the legal action lacks a foundation.

“The lawyers do not understand the nuances of selling pet foods, particularly therapeutic versus over the counter,” Ryan Yamka, PhD, of Luna Science and Nutrition, told Petfood Industry.

Details of the prescription pet food lawsuit

Specifically, the plaintiffs called out Hill’s Prescription Diet, Purina Pro Plan Veterinary Diets, Royal Canin Veterinary Diet and Iams Veterinary Formula. They also noted that Mars and PetSmart own co-defendant Banfield Pet Hospital, and that Mars own co-defendant Blue Pearl Vet Hospital.

The plaintiffs claimed that those pet food businesses charged consumers more than was justified for certain foods by making those foods available only by prescription. The lawsuit was filed in the US District Court of Northern California (Case number 3:16-cv-7001).

The prescription pet foods lawsuit case document argues that American consumers reasonably expect prescription requirements to imply that a substance is medically necessary, contains a drug, medicine or controlled ingredient, has been FDA evaluated, and legally requires a prescription. The plaintiffs alleged that these prescription dog and cat foods contain no drugs or ingredients not found in conventional formulations.

Prescription versus therapeutic pet foods

However, Yamka noted that nearly all formulas sold through prescriptions were technically therapeutic dog and cat foods. Only Hill's Pet Nutrition makes diets trademarked as prescription formulas.

“Regarding the veterinary ‘prescription,’ clearly the lawyers do not understand how FDA utilizes enforcement discretion with therapeutic diets,” said Yamka. “Part of the enforcement discretion requires that the foods are only available through veterinarians and under the supervision of veterinarians, along with other requirements.”

The United States Food and Drug Administration (FDA) offers guidance on therapeutic pet foods in their publication “Labeling and Marketing of Dog and Cat Food Diets Intended to Diagnose, Cure, Mitigate, Treat, or Prevent Diseases.”

Price differences between prescription and conventional pet food

The pet food company defendants are accused of engaging in a conspiracy to market, label and sell prescription pet foods to consumers at above-market prices. Federal anti-trust laws and California consumer-protection law makes such behavior illegal, if it did occur.

In the case filing, plaintiffs stated that they and others had overpaid for the prescription formulations and made purchases that they wouldn’t have if not for the prescription requirement.

“Regarding the price difference, there is a lot of expensive research that goes into supporting efficacy, claims, etc. for therapeutic pet foods compared to over-the-counter diets,” said Yamka. “Additionally, distribution to individual clinics adds additional expenses as well, compared to shipping to a single distribution center. Lastly, there is a cost associated with educating veterinarians, technicians, veterinary students, etc.  

“When all of the differences between prescription/therapeutic diets and over-the-counter diets are taken into account the price difference is easily justified,” Yamka said.

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