In Vanzant. v. Hill?s Pet Nutrition, et al., Case No. 17-3633 (7th Cir., Aug. 20, 2019), the Seventh Circuit reinstated pet owners? class action fraud suit against Hill?s Pet Food, ruling last month 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.
The trial court dismissed the lawsuit, finding that the claims were barred by the safe harbor provision for conduct authorized by the U.S. Food and Drug Administration. The FDA has issued guidance recognizing that most pet foods on the market intended to treat disease do not have formal FDA approval, but the guidance states that the agency is ?less likely? to start an enforcement action if pet owners buy the food with a veterinarian?s recommendation.
The Seventh Circuit disagreed and revived the class action based on its reading of the FDA?s guidance. ??Less likely? does not mean ?will not?; it certainly doesn?t signal authorization,? U.S. Circuit Judge Diane Sykes wrote for a three-judge panel. ?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 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,? Sykes said. The panel also found that the pet owners? complaint states their fraud claim with sufficient specificity to satisfy federal pleading requirements, and revived their unjust enrichment claim as well.