A consumer class action lawsuit has been filed against Evanger’s Pet Food; the lead Plaintiff being the pet owner whose dog Talula died from consuming the adulterated pet food. The complaint lists a detailed history of illegal pet food and misleading marketing. The lawsuit is open to any consumer that purchased or retailer that sold Evanger’s Pet Food from June 16, 2013 to the present.
In one of the most detailed pet food lawsuits ever filed, consumers are challenging Evanger’s Pet Food in a nationwide class action lawsuit. The lawsuit leaves no stone unturned, including marketing claims of ‘Human Grade’, FDA inspection reports, even quoting the federal laws that govern pet food (in such detail never before seen in a pet food lawsuit).
Below are excerpts from the 86 page complaint:
Plaintiffs bring this class action to obtain damages and equitable relief for themselves and all others similarly situated, both in Washington and nationwide, who purchased Defendants’ Pet Foods, which were advertised as premium, “100% beef,” and “human grade, USDA inspected meat,” but instead were composed of low quality, non-human grade ingredients and were produced at an unsanitary, non-USDA facility.
Evanger’s Pet Foods are aimed specifically at customers, like Plaintiffs, who want premium, safe and healthy meals for their pets, and are willing to pay a hefty price for them compared to other brands.
On December 31, 2016, relying on Defendants’ representations about the Pet Foods, Plaintiffs purchased Evanger’s Hunk of Beef Au Jus (“Hunk of Beef”) and Against the Grain’s Grain Free Pulled Beef with Gravy canned dog food (“Pulled Beef”) for their five dogs. Immediately, after consuming the Hunk of Beef all of the dogs became ill – acting listless and non-responsive. Plaintiffs rushed them to an emergency veterinarian. The next day, one of Plaintiffs’ dogs, Talula, died after being poisoned by the Hunk of Beef. As a result of consuming the Pet Foods, Plaintiffs’ four other dogs have had to undergo ongoing veterinarian treatments and monitoring, including Tito, who is now being treated for seizures.
After Talula’s death, the Federal Food and Drug Administration (the “FDA”), began working with Plaintiffs and the retailer who had sold the Pet Foods to Plaintiffs, and arranged for a necropsy and toxicology testing to be performed on Talula’s body and the Pet Foods. The FDA conducted the testing and found a large amount of pentobarbital in the animal’s stomach and in the undigested Pet Food. The FDA then directed testing of the remaining Hunk of Beef product and the unopened Hunk of Beef and Pulled Beef products purchased by Plaintiffs. The testing further confirmed the contamination of pentobarbital in the Pet Foods.
Defendants has misrepresented the quality of its Pet Foods’ ingredients and manufacturing. It falsely stated that the Pet Foods are safe and sourced from human-grade, USDA inspected meats when in fact they are not.
Plaintiffs and the other members of the proposed classes have purchased Defendants’ Pet Foods, and relied on Defendants’ misrepresentations about their products’ high quality, human-grade ingredients and sources of USDA inspected meat. Defendants also omitted material facts about the quality of the meat in the Pet Foods and the health risks they carried, including but not limited to the fact that they may be contain poisonous pentobarbital, were contaminated from the unsanitary manufacturing facilities and were from animals that did not die from slaughter.
Had Defendants disclosed the true facts concerning these products, Plaintiffs would have been aware of them, the potential harm and would not have purchased Defendants’ Pet Foods or not paid as much money for them. Defendants’ false and misleading labels touting the purity and quality of their products allowed Defendants to charge a higher price than it could have without these representations.
In a first for a pet food lawsuit (that I have seen), the consumer suit against Evanger’s addresses FDA’s lack of enforcement of law:
Many manufacturers, including Evanger’s, use meat from animals that are not USDA-inspected, human-grade and have died by means other than slaughter in their pet foods, including animals that were euthanized using pentobarbital. This practice has killed and sickened companion animals and put other animals and humans’ health and safety at risk.
Despite its findings, the FDA has not aggressively taken action under FDCA, § 342 (a)(1) or (5), against the pet food companies that it found to have used non-slaughtered animals and contain pentobarbital in their pet foods. Therefore, manufacturers in the pet food industry, including Defendants, have continued their illegal practice of using non-slaughtered animals that may contain poisonous substances, like pentobarbital, in their pet foods.
And the suit mentions previous illegal activity in pet food…
Blue Buffalo’s supplier, Wilbur-Ellis and its employee, now face criminal charges in federal court and accusations of introducing adulterated food into interstate commerce, and misbranding its products.
The suit addresses multiple incorrect or misleading claims made by Evanger’s about the pet food later recalled…
On January 30, 2017, despite the FDA’s ongoing testing that confirmed pentobarbital in its Pet Foods and investigation of Evanger’s facilities at this time, Evanger’s stated that it will not “respond to any unverifiable reports or unsubstantiated rumors that are intended to deceive the public” relating to the FDA and Evanger’s Pet Foods. It falsely stated that the FDA has not completed any additional tests and “as far as Evanger’s is aware and, we believe, the FDA is aware, none of our foods have been reported to contain pentobarbital or any other contaminant.”
Addressing the claimed violations of law, the suit states…
Evanger’s further breached its implied warranty of merchantability to Plaintiffs and members of the Nationwide Class because the Pet Foods were adulterated in violation of federal and state law, because they contained poisonous pentobarbital, were made in unsanitary conditions that contaminated them, and contained animals that did not die by slaughter.
The Pet Foods were sold in sealed packaging, and the identified issues existed when they left Evanger’s control, including Evanger’s knowledge that the Pet Foods were not fit for human consumption, were not USDA-FSIS inspected and were made in an unsanitary facility that contaminated them.
Evanger’s concealed and misrepresented this information about its Pet Foods to Plaintiffs and the Washington Subclass members, which is material in that a reasonable consumer would not have purchased the Pet Foods and subjected himself, herself or their pets to injury had he or she known these facts.
The Pet Foods contained substitute ingredients – ingredients other than those that Evanger’s advertised as in its Pet Foods – and failed to include ingredients that could have been used to meet the same needs and not be unsafe or unreasonably expensive.
The lawsuit requests “equitable relief” to consumers who purchased the pet food from “June 16, 2013 to the present” asking the court for “all or part of the ill-gotten profits Evanger’s received from the sale of its Pet Food.” To my understanding, any pet food consumer that purchased Evanger’s Pet Food within the specified time frame (June 16, 2013 to present) or any pet food retailer that sold the pet food (based on false ‘Human Grade’ marketing), can join the suit.
To read the full lawsuit, Click Here.
To join this lawsuit, contact information for the attorney is:
Jessica J. Sleater
Email: jessica@andersensleater.com
ANDERSEN SLEATER SIANNI LLC
1250 Broadway. 27th Floor
New York, New York 10001
Telephone: (646) 599-9848
Wishing you and your pet(s) the best,
Susan Thixton
Pet Food Safety Advocate
Author Buyer Beware, Co-Author Dinner PAWsible
TruthaboutPetFood.com
Association for Truth in Pet Food
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Ms. B Dawson
June 18, 2017 at 9:41 am
Let’s hope this is the legal action against the Shers that finally gets them their due. This family seems be the Al Capone of the pet food industry, repeatedly slipping through the legal system and continuing to do business.
Retailers and distributors should join in on this class action. The damage done to the industry as a whole is substantial. How many people will never trust commercial pet food again, including organic brands? I only hope that memories of this aren’t as short as with the Great Pet Food Recall.
I’m also glad to see FDA called out. It will be interesting to see what repercussions that will create.
geordie04
June 18, 2017 at 10:59 am
I hope that blame is accorded exactly where it is due — this includes the FDA — and that this sets a ball rolling that comes to rest only when pet food is finally subject to effective safety regulation.
Good luck to all the plaintiffs!
Hannie
June 18, 2017 at 10:59 am
I always thought Evangers was a healthy food & I fed it to my Lab for a while. Then I heard about some of the activities at their plant (like the gas line fiasco & how unsanitary it was) & that was it for me. I’m not sure how long ago that was but it’s been a few yrs. Now I’m thankful that I try to keep up to date on what pet food manufacturers are doing so I know whether or not I want to buy their food for my dog. As it is, I only use a tiny bit of kibble & the rest is human food that I cook for her. That’s the only way to be sure she’s getting real food & not friggin garbage. They make such a huge profit & it infuriates me.
Reader
June 18, 2017 at 11:01 am
Every legal initiative taken should be appreciated by the consumer. And this comment doesn’t mean, appreciation is not warranted. But I believe a company as desperate and underhanded as is Evanger’s will never let the light of testimony and deeper investigation, become a media spectacle. As with other suits, whatever the payout comes to be, Evanger’s will put it down on their annual loss sheet. And carry on. Maybe under a new name. What can’t seem to be corrected however (by consumers and legal counsel) is changing the course of non ethical behavior and mindset. Believing that somehow, animals aren’t entitled to the same treatment as human food demands! Animals (in their eyes) will always be an extension of property, and of insignificant monetary value.
Sad but true.
People should keep their expectations (of this suit) in check. Just as with Beneful, Purina, and a bunch of others over the long term.
Batzion
June 18, 2017 at 1:58 pm
“Maybe under a new name.” I was thinking exactly the same thing. And yes, lawsuit payouts are considered part of the cost of doing business.
Nevertheless, it is good to know that there may be retribution for little Talula’s death.
Thank you, Susan for telling us about this.
Peter
June 18, 2017 at 8:48 pm
For practical purpose… plaintiff’s counsel are the primary beneficiaries of class-action suits. The “lead party” who serves as the primary plaintiff (the consumer who brings the case to the court) is ordinarily named (“Mr. X Consumer vs. the defendant X X Company) and awarded a set-aside amount. The case is presented as representational of others, who are/may be “similarly situated” as the plaintiff. In order to reduce stress on the court system, the case is submitted for “certification” with multiple plaintiffs thus consolidated as a “class” to be considered at one time. Other consumers may then be invited to “join” the “class” if they meet certain criteria. That strengthens the class and the case itself. Cases/classes also get merged into district court systems along the way if claims overlap substantially for administrative convenience. Once a case is certified on behalf of thousands of consumers, the stakes are high. Many of the individual cases may be voluntarily withdrawn or dismissed for weaknesses by a judge, and as part of the process to narrow the issues. Its fair to expect about a third of the complaints are voluntarily dismissed or paid. But the filing attorneys would be paid, in every case. Still, even when a negotiated settlement on behalf of the class is reached—even if they are multi-million $ negotiations— there may be nearly nothing distributed to the consumers who were the basis for the suit in the first place. Often this may represent a “coupon” on future purchase of the product that none of them would consider buying again, anyway. Most affected consumers don’t respond to the requirement for paperwork involved considering these paltry “awards.” Almost none of the cases go to trial. In the end, while perhaps a moral victory for plaintiffs, settlements often are considered part of an overall manufacturing/marketing strategy and just a “cost of doing business.”
I agree, sadly, as you suggest, that the Shers will likely pursue a course to avoid full litigation of the issues against them. The benefit, however, of this action, as all class-action suits, is raising consumer awareness. That is a good thing, and it may bring some meaning to the death of the Mael’s dog, which is important. If the allegations of the suit are accurate, I, for one, hope that damage to their company’s commercial reputation, which “has led to a significant loss of retail stores that will sell any of Evanger’s products” is amplified.
In the meantime, the Sher’s have taken a page from the Blue Buffalo playbook, the one titled “Blame the Supplier!,” which (like BB) they are intending to re-direct (mis-direct, really) public attention with their suit against Bailey Farms LLC. In that, they continue to rely on the public’s lack of understanding of lax/non regulation in pet food manufacture, and, specifically, the issues revolving around the USDA-AFSIS non-certification. It is appalling and as Susan has discussed, the complaint revealed that the company was aware of and actively pursued its fraudulent claims of “human grade” ingredients.
The Sher’s are pathological in their relationship with consumers and retailers.
Chris Javier
June 18, 2017 at 12:42 pm
Thank you for sharing this.
Carol
July 24, 2017 at 8:51 pm
My 96 lb shepherd mix almost died after consuming only 1/2 a can of this abomination Evangers calls dog food. I incurred $1500.00 in vet bills, not to mention the horrifying 2 days seeing my dog suffer and not knowing what was wrong with her! Finding out about 1 month after she was so sick, about the recall.
I am joining in the class action lawsuit and will not stop spreading the word, sharing, shouting from the rooftops that NO ONE should EVER purchase this POISON!!!!!!