Anyone who has had to purchase prescription diet food for their pet knows how crazy expensive these products can be. Even if you have pet health insurance, it usually doesn’t cover prescription food.
I had a cat with digestive problems, so my vet at the time recommended Royal Canin prescription dry cat food, upwards of $75 per bag. This food is said to be extra high in protein compared with your run-of-the-mill Friskies or Purina. Or is it lower in protein? I honestly can’t remember. It was supposed to be more tolerable to her digestive system. Anyway, my kitty ate it for a little while, then refused to touch it so I was left with a giant bag of overpriced cat food that I couldn’t return. And it only seems to come in giant bags.
A recent lawsuit that was heard in Chicago federal court dealt with the content of these products and their value versus plain old supermarket pet food, the kind that sells for $5 to $25.
Hill's Nutrition and PetSmart in the hot seat
In 2017, two women from Illinois brought a class-action lawsuit against Hill’s Pet Nutrition and the PetSmart chain alleging violation of the Illinois Consumer Fraud and Deceptive Practices Act. One plaintiff’s veterinarian prescribed Hills’ special “feline bladder health” food for her cat with bladder stones, while the other was prescribed special Hill's diet food for her diabetic cat. They both purchased the food from PetSmart for several years until they eventually concluded that the prescription food contains no ingredients that can’t be found in cheaper nonprescription cat food.
Their complaint alleged that the prescription requirement, prescription label, and related marketing materials for Hill’s Prescription Diet pet food were deceptive, because no prescription should have been necessary since there is no material difference from over-the-counter food. They had been led to believe the prescription food was medically necessary for the health of their pets, had been approved by the Food and Drug Administration (FDA), and could not be sold legally without a prescription. (The FDA is the government authority that is supposed to regulate pet food.) But the FDA had in fact not approved it, and nothing required that it be sold with a prescription.
The lower federal court that considered the women’s complaint dismissed their suit based on the argument that the FDA had long been aware this food was marketed as veterinarian-approved "prescription" pet food, and the agency was okay with that. The Consumer Fraud Act exempts some parties from liability under a “safe-harbor” provision in the case of practices “authorized” by a government regulatory body (in this case the FDA). Consequently, the court concluded, the plaintiffs weren’t allowed to impose stricter requirements on the pet food company and retailer than the federal government does.
Prescription pet food isn't really FDA-approved, so its makers can't hide behind FDA
They appealed the dismissal to the Seventh Circuit Court of Appeals, which said the dispute centered on whether FDA’s treatment of these products in fact specifically “authorized” the prescribing and selling of them as prescription diet food. (The appellate court opinion gets really jargony and “legal-y” so I’ll try to break it down as best I can.)
The Food, Drug, and Cosmetic Act (FDCA)—which is enforced by the FDA—regulates pet food. Because Hill’s Prescription Diet cat food is intended to treat or prevent disease and is marketed as such, the products are considered “drugs” under the FDCA and need FDA approval to be sold in interstate commerce.
However, according to the Seventh Circuit panel, most pet-food products claiming to treat or prevent disease lack official FDA approval and do not comply with the FDCA’s drug registration and listing requirements. Moreover, the companies that make the food don’t follow the appropriate manufacturing practices for animal drugs. But FDA has agreed to generally “look the other way” as long as consumers purchase the food through or under the direction of a veterinarian.
Writing for the court, Judge Diane Sykes noted that this practice of looking the other way on the part of the FDA does not equate to “authorization” for the manufacturers to do what they do. And because the agency doesn’t specifically authorize Hill’s prescription requirement, prescription label, and related marketing representations, the company and PetSmart cannot hide behind the FDA in denying their liability for deception and other claims.
The bottom line: “Safe harbor” protection under Illinois consumer fraud law does not apply to prescription diet pet food that has not been FDA-approved.
In my humble, admittedly non-professional opinion, if you have a sickly pet you’re probably better off feeding it high-quality nonprescription food sold under different brands in most pet stores. When I did, my cat did just as well; plus my vet told me it’s better for their health to feed them plain old supermarket food they will eat healthy amounts of than fancy diet food they won’t eat or eat very little of because it tastes nasty to them, depending of course on the particular health issue involved.
The case is: Vanzant and Land v. Hill’s Pet Nutrition Inc. and PetSmart Inc., No. 17-3633 (7th Cir. 2019).