New Argument Over Evangers Pet Food Lawsuit Settlement Agreement

The Evanger’s Pet Food lawsuit settled in late 2019, but there is a new issue both sides are disagreeing on. Here’s both sides of the argument – who do you agree with?

In June 2017 a class action lawsuit was filed against Evanger’s Pet Food claiming:

“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. Many of the Pet Foods were unsafe, adulterated meats, not from animals that were identified on the labels, and contained pentobarbital, a barbiturate used in the euthanizing of animals, the execution of humans and in physician-assisted deaths Plaintiffs’ use of these products led to the sickness of several of Plaintiffs’ pets, and the death of one.”

The lawsuit settled in 2019, however new court documents have been posted – filed on 4/21/21 – regarding the settlement agreement.

The Plaintiffs (pet owners in the lawsuit) side of the story:

The document “DECLARATION OF JESSICA SLEATER IN SUPPORT OF CLASS COUNSEL’S MOTION TO ENFORCE THE SETTLEMENT AGREEMENT” states the following (“Jessica Sleater” is one of the attorneys that represented pet owners in the lawsuit):

“On October 18, 2019, after hard fought litigation over several years, the parties in this litigation entered a heavily negotiated Settlement Agreement. Section 2.1 (e) of the Settlement Agreement provides that:“

“Evanger’s agree to submit to random testing of their finished Hand Packed Products, or to the extent any of the Hand Packed Products are renamed, the renamed products. Evanger’s agree the testing will be conducted at Evanger’s expense by independent, third party every quarter for two (2) years commencing on the Final Settlement Date with results to be published on their websites. The independent third party will test each Hand Packed Product that the independent third party has randomly selected from the stream of commerce at a cost not to exceed $5,000 per year.”

The lawyer representing pet owners stated:

“On March 9, 2021, Defendants’ Counsel stated, “I have been authorized to agree to a testing LOD of 100 ppb, which is the sensitivity level used by TVMDL (Texas A&M Veterinary Medical Diagnostic Laboratory) in the various litigation related tests of Evanger’s hand packed products.”

The court documents stated Defendants (Evanger’s Pet Food) agreed to a testing LOD (limit of detection) of 100 parts per billion. The court documents continue with this from the pet owners lawyer:

“On March 10, 2021, in order to investigate whether this different testing level would be appropriate, I contacted TVMDL to find out what sensitivity it uses to detect pentobarbital in pet food. The TVMDL technician that I spoke with indicated, like the first laboratory, that it uses 2 ppb detection level consistent with the FDA testing for pentobarbital.”

And the court documents continue with this, Evanger’s agreeing to a level of pentobarbital detection of 50 parts per billion:

“On March 26, 2021, Defendants’ Counsel indicated Defendants had reached an agreement with TVMDL and testing was already in process. He also stated “[a]fter consultation with TVMDL’s scientists, we settled on as level of detection of 50 ppb, which ensures that any product at a level the FDA has determined could present harm to animals will be detected. Conversely, Evanger’s is protected against minuscule amounts attributable to environmental factors beyond Evanger’s reasonable control that could not present any harm to animals.”

Again, from the court documents – the position of the pet owners attorney:

“I immediately replied that this was not acceptable given Class Counsel was excluded from communications with TVMDL and that the unilateral decision to test at 50 ppb was not standard in the industry or the FDA.”

The Defendants (Evanger’s Pet Food) side of the story:

Evanger’s filed a response to the class request Motion to Enforce Settlement Agreement on 4/26/21, “DECLARATION OF GREGORY A. BEDELL IN SUPPORT OF DEFENDANTS’ RESPONSE TO PLAINTIFFS’ MOTION TO ENFORCE SETTLEMENT AGREEMENT“.

“The Settlement Agreement in this case, Dkt 116-1, included a term under which Evanger’s and co-defendant Nutripack, LLC (“Nutripack” and collectively the“Respondents”) would submit the Hand Packed Product to pentobarbital testing for two years on a quarterly basis; the term required the testing done by “an independent third party”and that the Hand Packed Products to be tested would be randomly selected from the stream of commerce by the independent third party.”

“In my initial discussions with Dr. Travis Mays, a supervisor at TVDML, I explained the testing program was part of a class action settlement arising from pentobarbital tainted dog food; I conveyed that Respondents wanted to assure that the Hand Packed Products would not present a risk of harm to the consuming public. In this context, I advised him of the findings of the Report on the Risk from Pentobarbital in Dog Food, dated February 22, 2002 (hereinafter the “FDA Risk Report”), that indicated CVM scientists were able to determine that the no-observable-effect level for pentobarbital was 50 micrograms of pentobarbital per day.”

“I then inquired of Dr. Mays as to what testing level of detection (“LOD”) would be needed to identify products at this threshold; Dr. Mays responded that an LOD of 50 parts per billion (“ppb”) was the corresponding testing threshold to catch harmful products based on the FDA Risk Report.”

The Evanger’s attorney also submitted multiple studies to the court regarding pentobarbital in the environment:

• “a 2002 study by the U.S. Geological Survey of the United States Department of the Interior, USGS “Pharmaceuticals, Hormones, and Other Organic Wastewater Contaminants in U.S. Streams.”
• “Drugs in the Water,” Harvard Health Letter, Harvard Medical School, Published June, 2011.“
• “a study published in the journal “Ground Water,” Vol. 31, No. 5 September-October, 1993.”
• “Stability of Pentobarbital in Soil,” Journal of Environmental Science and Health, Part B, Vo.53, No. 3, 207-213 (2018).”

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Both sides of the argument presented true facts.

The Plaintiffs (pet owners) side of the argument stated: “the unilateral decision to test at 50 ppb was not standard in the industry or the FDA.”

True – relating to FDA. From the FDA webpage “Questions and Answers: Contaminants in Pet Food“: “Can pet food contain residues of pentobarbital? No. FDA considers pet food containing pentobarbital residues to be adulterated under the Federal Food, Drug, and Cosmetic Act (FD&C Act) and will act to remove it from the market.”

And the Defendants side of the argument stated “CVM scientists were able to determine that the no-observable-effect level for pentobarbital was 50 micrograms of pentobarbital per day.”

True. From the FDA report “Risk of Pentobarbital in Pet Food“: “Based on the data from this study, CVM scientists were able to determine that the no-observable-effect level – which is the highest dose at which no effects of treatment were found – for pentobarbital was 50 micrograms of pentobarbital per day.“

So…where do you stand in this argument? Who do you agree with – the Plaintiffs or the Defendants?

When the court decides on the issue, it will be shared with pet owners.

Wishing you and your pet(s) the best,

Susan Thixton
Pet Food Safety Advocate
Author Buyer Beware, Co-Author Dinner PAWsible
TruthaboutPetFood.com
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