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More phony “Made in the USA” pet food claims under attack; Multiple class action lawsuits filed

It’s no secret that consumer preference for pet foods and treats that are made exclusively in the United States and pet food companies are cashing in by plastering their products with waving American flags and bold Made in the USA claims.

Terrorized by the endless flow of well-publicized food safety horror stories involving imported goods, consumers feel safer choosing pet products Made in the USA, than take a risk with pet food that might contain foreign-sourced ingredients.

But consumers are beginning to wonder: Is it really Made in the USA with all American ingredients?

But is it really Made in the USA?

Vulnerable consumers, fearful of the possibility of imported toxic ingredients in their pet’s food, are beginning to question whether they are being exploited by pet food companies who might be using deceptive marketing practices that prey on their fears.

Additionally, many consumers are simply unaware that pet food products sold as Made in the USA could, in fact, contain ingredients sourced in foreign countries, but that is all changing.

Consumers are discovering that some Made in the USA claims aren’t all they pretend to be.

Consumers aren’t buying the Made in the USA claims

As a result, multiple lawsuits have been filed in the past few months (see below), accusing pet food companies of lying to consumers about the true origin of their products. They assert that instead of being protected from risky foreign ingredients, they accuse the U.S. pet food manufacturers of abusing their trust in American made products.

Even though there’s no law that requires products (other than cars, textiles, wool and fur) to be labeled Made in the USA or have any other disclosure about their amount of U.S. content, pet food companies who choose to make those claims better pay close attention to Federal Trade Commission’s (FTC) Made in the USA policy or face legal action.

A questionable definition of what a trace amount is

Despite federal law which states that “all or virtually all” the ingredients in a pet food that claims to be Made in the USA can, by law, contain trace amounts of a foreign material, the federal government has never come out and said exactly what that trace amount would be and have left it up to manufacturers to make that determination on their own. Instead the FTC decides on a case-by-case basis if a company is in violation.

Pet food companies who incorrectly determine what a trace amount is, take an enormous risk when making such claims, because federal laws are designed to protect consumers from this type of false representation and predatory conduct. Predatory, because pet food companies know that consumers are particularly vulnerable to these deceptive and fraudulent practices.

Pet food companies will need proof…or else face the music

Pet food companies can’t just simply claim it was Made in the USA unless they have competent and reliable evidence to back up the claim that its product is “all or virtually all” made in the U.S., because not only will the FTC ask for it, but consumers (and their lawyers) will ask for proof as well; and if they don’t get it, pet food companies should expect to face even more legal problems than they are right now.

This recent flurry of class action lawsuits should be a warning to industry: that pet food companies who slap Made in the USA claims and plaster American flags willy-nilly on their products should be prepared to present proof of their claims or be accused of an intent to defraud consumers, and be dragged through the media as a sleazy pet food company whose only motivation is greed.

Until the FTC and the Food and Drug Administration challenges companies that make false and misleading claims, consumers are going to continue taking pet food companies to court in an attempt to stem the explosion of fraudulent Made in the USA claims from continuing to victimize consumers each and every day until altered by judicial intervention.

 

The stack-up of recently filed lawsuits

Fitzpatrick v. Tyson Foods Inc. (makers of Nudges pet treats)

This class action lawsuit was filed in California by Susan Fitzpatrick over questionable Made in the USA claims for Tyson pet treats. The complaint doesn’t target a specific product, but references Tyson’s Nudges pet treats.

The complaint states Tyson’s representation that Nudges dog treats are made in the U.S. is false because certain ingredients are sourced abroad.

Similar to the Tyson complaint, Fitzpatrick also filed a similar lawsuit against Big Heart Pet Brands and J.M. Smucker Company on the same day (see below).

The Fitzpatrick v. Tyson Foods Inc. case is represented by John E. Norris of Davis & Norris in Birmingham of Alabama and by Benjamin P. Tryk of Tryk Law of California.

(Fitzpatrick v. Tyson Foods Inc.; U.S. District Court for the Eastern District of California Case number 2:15-cv-02285)

Fitzpatrick v. Big Heart Pet Brands & J.M. Smucker Co. (makers of Milo’s Kitchen)

Susan Fitzpatrick also filed a class action lawsuit against Big Heart Pet Brands and The J.M. Smucker Company in California. As in the Tyson class action case, Fitzpatrick claims that the defendants falsely advertise their Milo’s Kitchen brand of grain-free dog and cat food and treats as Made in USA, despite the “products containing tapioca – a starch made from the cassava root, which is not commercially grown in the United States.”

The J.M. Smucker Company owns Big Heart Pet Brands, which produces Milo’s Kitchen brand pet foods and treats. Milo’s was made in China until last year, and is now produced, supposedly, with American poultry in the United States.

A spokesperson for Big Heart Pet Brands said, “Our consumers said that they really wanted to see products made in the United States, with no ingredients sourced in China and we decided to make a commitment to do that.”

Both the Fitzpatrick v. Big Heart Pet Brands et al. and Fitzpatrick v. Tyson Foods Inc. cases are represented by John E. Norris of Davis & Norris in Birmingham of Alabama and by Benjamin P. Tryk of Tryk Law of California.

(Fitzpatrick v. Big Heart Pet Brands & J.M. Smucker Co.; U.S. District Court for the Eastern District of California Case number 2:15-cv-2116)

Fraser v. Wysong Corp.

Adrienne Fraser filed a class-action lawsuit in California against Wysong Corporation alleging violations of California’s Unfair Competition Law and California’s Consumer Legal Remedies Act.

The suit states Wysong falsely labeled certain pet food and pet treat products as made in the USA, when it allegedly includes “vitamin, mineral and amino acid packs that contain ingredients sourced outside the U.S.”

Fraser is represented by attorneys Eustace de Saint Phalle and Joseph R. Lucia of Rains Lucia Stern in San Francisco, and by attorney John E. Norris of Davis & Norris in Birmingham, Alabama.

(Fraser v. Wysong Corp.; U.S. District Court for the Northern District of California Case number 3:16-CV-00047-LB)

Fraser v. Fromm Family Foods LLC

Adrienne Fraser filed a California statewide class action on January 5, 2016 seeking redress for the mislabeling of pet food and pet treats marketed by Fromm Family Foods, labeled its pet food as Made in the USA, when in fact certain ingredients are sourced from foreign countries. Specifically, Fraser purchased Fromm’s Four-Star Salmon Tunachovy Cat Food labeled Made in USA.

The labels stating that Fromm’s pet food is made in the United States are false because Fromm’s pet food contains ingredients that are sourced from foreign countries. Specifically, the “vitamin, mineral, and amino acid packs in defendant’s products contain ingredients from non-USA sources.”

Fraser is represented by attorneys Eustace de Saint Phalle and Joseph R. Lucia of Rains Lucia Stern in San Francisco, and by attorney John E. Norris of Davis & Norris in Birmingham, Alabama.

(Fraser v. Fromm Family Foods, LLC.; US District Court for the Northern District of California Case number 3:16-cv-00043-MEJ)

Randall v. Merrick Pet Care, Inc., et al (Castor and Pollux Natural Petworks; Pet Appeal One, LLC, aka Castor and Pollux Natural Petworks, LLC; Nestle USA, Inc.; Nestle Purina Petcare, Co.)

Sean Randall filed a complaint in California on January 7, 2016, alleging that Castor and Pollux’s Organix brand pet foods have been labeling as made in the United States when they contain ingredients sourced from foreign countries, “including tapioca as well as vitamin, mineral and amino acid packs.”

Randall purchased Organix Grain Free Healthy Adult Indoor cat food that was labeled Made with Love IN THE USA.

Randall is represented by attorneys Eustace de Saint Phalle and Joseph R. Lucia of Rains Lucia Stern in San Francisco, and by attorney John E. Norris of Davis & Norris in Birmingham, Alabama.

(Randall v. Merrick Pet Care, Inc. et al; Western Division of the Northern District of California Case number 2:16-CV-00139-FMO-AS)

Sensenig v. Nestle USA Inc., et al (owners of Merrick Pet Care d/b/a Castor & Pollux Natural Petworks makers of Ultramix)

Marsha Sensenig of Illinois filed a class action lawsuit against Nestle alleging the company is engaged in misleading advertising by touting their Ultramix and Organix brands as being American-made when they contain foreign ingredients.

Sensenig purchased Ultramix Grain Free & Poultry Free Adult Dog Food and the label on the packaging states that the product was “Made with Love in the USA.” In fact, all of the Ultramix products, as well as the Organix products, carry labels reading, “Made with Love IN THE USA.”

However, Sensenig asserted those labels are false because the food contains ingredients sourced from foreign countries. As one example, these products contain “tapioca, a gluten-free starch made from the cassava root sourced from foreign countries.” Further, the food’s ingredients include “vitamin, mineral, and amino acid packs sourced outside the United States.”

Sensenig lawyers used a very clever argument: Because they use foreign-sourced vitamins and minerals, these ingredients are a “significant part” of the foods, “because all of these products are labeled with a core product description ‘with added vitamins, minerals and trace nutrients for wellbeing,’ or a similarly worded description. Therefore, under the guidelines of the Federal Trade Commission, the use of the phrase ‘made in the USA’ on the labels is deceptive.”

Sensenig is represented by John E. Norris, Frank Davis, Wesley W. Barnett, and Dargan Ware of Davis & Norris Birmingham Alabama, and Gerald Bekkerman and Jennifer Bekkerman of Bekkerman Law Offices of Chicago.

(Sensenig v. Nestle USA Inc. et al.; U.S. District Court for the Northern District of Illinois Western Division Case number 3:16-cv-50022)

Sensenig v. Wellpet (makers of Wellness, Eagle Pack, Holistic Select)

Sensenig brought a virtually identical allegation in a separate class action complaint also filed Feb. 1, 2016 against Wellpet, maker of Wellness dog and cat food, Eagle Pack dog food and Holistic Select dog food. As with the Nestle complaint, Sensenig noted Wellpet uses “foreign-sourced vitamins and minerals, including Vitamin C.”

As with Nestle, Sensenig asserts that these ingredients constitute a “significant part” of Wellpets’ foods because all of these products are labeled with a core product description “with added vitamins, minerals and trace nutrients for wellbeing.” Therefore, under the guidelines of the Federal Trade Commission, the use of the phrase “Made in the USA” on the labels is deceptive.

Attorneys for Sensenig include John E. Norris, of Davis & Norris, Birmingham, Ala., and Gerald Bekkerman and Jennifer Bekkerman, of Chicago.

(Sensenig v. Wellpet LLC; U.S. District Court for the Northern District of Illinois Western Division Case number: 3:16-cv-50021)

How to report a mislabeled product

What if you suspect noncompliance with the FTC’s Made in USA standard or other country-of-origin mislabeling? Then by all means, you should report it. Information about possible illegal activity helps law enforcement officials target companies whose practices warrant scrutiny.

  • If you suspect noncompliance, you may file a complaint online with the FTC Complaint Assistant at www.ftc.gov/complaint or send an e-mail to MUSA@ftc.gov.
  • If you know about import or export fraud, file a complaint with U.S. Customs and Border Protection at https://apps.cbp.gov/eallegations/.
  • You can refer your complaint to the National Advertising Division (NAD) of the Council of Better Business Bureaus by calling (212) 754-1320. NAD handles complaints about the truth and accuracy of national advertising.
  • You can reach the Council of Better Business Bureaus on the web at www.adweb.com/adassoc17.html.
  • You also can contact your state attorney general to report a company. The state attorney general is the chief legal advisor to the state government and the state’s chief law enforcement officer. A link to your state’s attorney general can be found here www.naag.org/naag/attorneys-general/whos-my-ag.php. Click on their photo and it will take directly to your state attorney general’s web page where there will be a link to file a complaint.
  • Finally, the Lanham Act gives any person who is damaged by a false designation of origin the right to sue the party making the false claim. Consult a lawyer to see if this private right of action is an appropriate course of action for you.

For more information…

Believe it or not, the Federal Trade Commission works for the consumer to prevent fraudulent, deceptive, and unfair business practices in the marketplace and to provide information to help consumers spot, stop, and avoid them. So, make them earn their pay and file a complaint with the FTC or get more information on consumer issues, visit www.ftc.gov or call toll-free, 1-877-FTC-HELP (1-877-382-4357).

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Mollie Morrissette

Mollie Morrissette, author of Poisoned Pets, is an animal food safety expert and advisor to AAFCO. Help support her work by making a donation today.

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