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
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,
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