The lawsuit – Stevie Kucharski-Berger v. Hill’s Pet Nutrition – was originally dismissed. But thankfully an appeals court decided the “district court erred in dismissing” the case. This VERY interesting lawsuit will continue.
This lawsuit challenges the validity of prescription pet food, even indicating that Hill’s and other prescription pet food manufacturers conspired to charge high prices for per federal law adulterated and misbranded products.
“After learning that Hill’s prescription pet food has no medicine or drug, that no prescription is legally required to purchase it, and that it is not tested and approved for medicinal purposes by the Food and Drug Administration (FDA), Kucharski-Berger sued Hill’s alleging that Hill’s and other pet food manufacturers conspired to monopolize the prescription pet food market and to artificially inflate prices by self-imposing the prescription requirement.”
Background: Prescription Pet Foods DO violate federal law.
Prescription pet foods are given a ‘Get Out Of Jail Free’ card by the FDA Center for Veterinary Medicine (CVM). Federal law defines any product that makes a claim to cure, treat or mitigate disease as a drug. And the FDA CVM admits: “By virtue of their intended use to treat or prevent disease, such products meet the statutory definition of a drug.”
Drugs are required by federal law to prove their effectiveness and safety. Drugs are also held to strict manufacturing standards. Federal law also clearly states that a product that claims to cure or treat disease that did not meet the legal requirements would be adulterated and misbranded.
But prescription pet food isn’t held to federal law. The FDA Center for Veterinary Medicine allows prescription pet food to make claims to treat disease without proving effectiveness and safety – and without meeting manufacturing standards. This ‘Get Out of Jail Free’ card is accomplished through an FDA Compliance Policy Guide titled “Labeling and Marketing of Dog and Cat Food Diets Intended to Diagnose, Cure, Mitigate, Treat, or Prevent Diseases.” A Compliance Policy Guide (CPG) is FDA Center for Veterinary Medicine’s method to do things their way, not the legal way.
The FDA Center for Veterinary Medicine’s way with prescription pet food is to allow manufacturers to use food grade or feed grade ingredients (including ingredients sourced from diseased animals or non-slaughtered animals) and allows inferior feed grade manufacturing standards to make a product that claims to cure or treat a disease. Further, the FDA plays perfectly into the scam by requiring these unproven products to be sold ONLY by veterinarians.
This lawsuit challenges the entire concept of prescription pet foods AND challenges the high cost of these products.
Quoting:
“The prescription requirement does not make a product safe that is otherwise unsafe, it simply mitigates the harm that the food may cause due to the failure to gain FDA approval.”
“For example, Hill’s produces a Prescription Pet Food product called ‘Prescription Diet Urinary Care c/d Multicare’ cat food that sells for $5.62 per pound, and another substantially similar non-prescription product called ‘Adult Urinary Hairball Control’ cat food that sells for $3.51 per pound. The two products make essentially the same health claims and have a 75 percent overlap in ingredients. The non-overlapping ingredients are not drugs and are not sufficient to justify one product being sold by prescription for a significantly higher price. Given the overlap in ingredients, and the absence of any drug or other ingredient required to be sold by prescription in the Prescription Pet Food product, the only meaningful distinction between the two products that is apparent to Plaintiffs and those similarly situated is the prescription requirement. The price differential is therefore based largely, if not entirely, on the prescription requirement imposed by Hill’s and the other manufacturing conspirators in the combination.”
The lawsuit claims that Hill’s Pet Food engaged in “deceptive acts and practices in connection with the sale and advertisement of Prescription Pet Food in trade or commerce in the State of Kansas by misrepresenting and marketing and selling Prescription Pet Food through a knowingly deceptive, misleading, and self-imposed prescription requirement having no legal basis or mandate.”
And the lawsuit alleges that Hill’s and other major prescription pet food manufacturers worked together to control the prescription pet food market and prices.
“Kucharski-Berger later proffers in her petition that she has been ‘informed and believes that agreements between and among Mars, Purina, Hill’s, PetSmart, and Banfield prohibit and restrict PetSmart and Banfield from stocking and selling Prescription Pet Food made by other competitors.’ In furtherance of this conspiracy, ‘Hill’s entered into a merchandising agreement with PetSmart and Banfield, which Mars and PetSmart owned, to sell Hill’s Prescription Pet Food in all PetSmart stores with an on-site Banfield pet hospital.’ She alleges that although Mars had the power to exclude Hill’s from PetSmart and Banfield, it entered into the merchandising agreement against its economic interests, but as part of the previously noted agreement to control the market. Purina later joined the conspiracy. She alleges that Hill’s and its coconspirators have intentionally blocked smaller prescription pet food manufacturers from selling in PetSmart and Banfield stores.”
And specific to the price fixing, this appeals court ruling drops a huge bomb. The court stated:
“Hill’s argues that Kucharski-Berger failed to allege direct evidence of a trust or conspiracy to fix prices.”
“But Kucharski-Berger did allege a specific meeting in March 2005 where the issue of the prescription requirement was discussed and agreements were made – the purpose and effect of which was ‘raising, fixing, stabilizing and pegging prices of Prescription Pet Food.’ The central theme was to agree that they would support the prescription requirement to keep prices inflated. This alone provided enough detail to put Hill’s on notice of what conduct it was alleged to have participated in. And if true, it is certainly the ‘smoking gun’ that Hill’s argues is necessary to support a conspiracy claim.”
We can be thankful to the appeals court for upholding this lawsuit. We will certainly be following this lawsuit as it proceeds, looking forward to evidence as it unfolds. As more court documents are posted, they will be shared.
To read the court document Click Here.
Personal Opinion: Thank heaven for the lawyers that are fighting the injustices of pet food. I hate to think of where we’d be without them.
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
Become a member of our pet food consumer Association. Association for Truth in Pet Food is a stakeholder organization representing the voice of pet food consumers at AAFCO and with FDA. Your membership helps representatives attend meetings and voice consumer concerns with regulatory authorities. Click Here to learn more.
What’s in Your Pet’s Food?
Is your dog or cat eating risk ingredients? Chinese imports? Petsumer Report tells the ‘rest of the story’ on over 5,000 cat foods, dog foods, and pet treats. 30 Day Satisfaction Guarantee. Click Here to preview Petsumer Report. www.PetsumerReport.com
Find Healthy Pet Foods in Your Area Click Here
The 2021 List
Susan’s List of pet foods trusted to give her own pets. Click Here to learn more.
Donna Muse
August 25, 2021 at 2:43 pm
I understand there are no drugs or medicines involved in these prescription foods but for my dog the Royal Canin and the Hills both work/worked to remove crystals from her bladder.( I got prescriptions to both to give her a variety and mix the dry with the wet) She could not urinate except a few drops and was in constant distress before this diet. I would love to see the price drop since 12 cans is about $50 and I have 4 others to feed besides her. I know that the ingredients are formulated differently or else she would not have had her crystals disappear and that was confirmed by another vet when she was x-rayed before surgery a few weeks ago. She will stay on this diet because I never want to see her in that distress again. She is 12 with a heart murmur so she does not need any extra stress. I do add a bit of cooked chicken that I make for all of them Her treats are the Royal Canin treats made for her condition. I was never a fan of these “prescription” foods but I will do whatever it takes to keep my dog safe and healthy. Also, all other suppliers are at the same price-I have searched the Internet-you only get great offers off the first time you order and if you agree to autoship.
T Allen
August 25, 2021 at 8:32 pm
It would be a whole lot healthier for your dog to feed meat, increase her water intake and add cranberries to her diet but I understand most people can’t take the time to make their beloved pets food or do a quick online search for natural diets to eliminate urinary crystals. It’s a whole lot cheaper too. That’s why these companies are still in business (for a little while longer making obscene profits off of this: s/d Wet Dog Food INGREDIENTS: Water, Corn Starch, Chicken Fat, Pork Liver, Sugar, Egg Product, Powdered Cellulose, Iodized Salt, Soybean Oil, Potassium Chloride, Calcium Carbonate, Choline Chloride, DL-Methionine, vitamins (Vitamin E Supplement, Thiamine Mononitrate, Niacin Supplement, Calcium Pantothenate, Vitamin B12 Supplement, Pyridoxine Hydrochloride, Biotin, Riboflavin Supplement, Vitamin D3 Supplement, Folic Acid), Taurine, minerals (Zinc Oxide, Ferrous Sulfate, Copper Sulfate, Manganese Sulfate, Manganous Oxide, Calcium Iodate, Sodium Selenite), Beta-Carotene. Sounds like a healthy balanced diet doesn’t it?
Will Falconer, DVM
August 28, 2021 at 6:11 am
Thanks for publishing this, T. The entire line Hills offers reads similarly, and it’s got to be sheer ignorance on the part of consumers that they trust the food’s purported “scientific” and “prescription” label without reading labels carefully.
Sugar? As the 5th ingredient? Sawdust as the 7th?
It’s appalling. And guess who donated all the food my vet school’s clinic provided its patients and sold to out patients?
And worse: guess who “educated” vet students on nutrition for 1-2 hour long sessions in a total of 4 years of training to become doctors?
You got it: Hills. None other.
Debbie D
August 29, 2021 at 4:00 am
EXACTLY…those so called prescription foods are nothing more than crap/junk ingredients. A homemade diet would eliminate any crystals stones etc. the DIET is crucial. avoid pet foods and do homemade. and anyone that wants to learn how to make a homemade diet…go to holisticandorganixpetshoppe.com…for more info. I will NEVER EVER buy pet foods or treats again. If you can fix a meal for your children, then you can for your pets too. To me..there are no excuses for feeding a better diet.
Chris O
October 14, 2023 at 12:14 am
Thank you for the link to that site. Very informative on the recipes and what ingredients are bad. My sisters vet just put her cat on a hills urinary diet. I find it difficult to believe that vets would even recommend these ingredients to cats. I’m left with the feeling that vets are in on the scam. This industry needs serious regulations.
Cloe
August 30, 2021 at 10:54 am
A friend of mine actually ate a piece of these prescription kibbles and they were salty as for usual kibbles are bland and almost tasteless, for a reason they make it salty its so they can drink more water making it seems like its “Working” but in reality you should try out raw diet which contains more moisture which would really help out for dogs and cats with urinary problems
Chris O
October 13, 2023 at 11:49 pm
DL-Methionine food grade can be purchased on amazon, and dosed to your pets weight. You can literally add this to any food you choose. I had a crystals problem, cat have surgery. We bought the Hill’s prescription-only diet, but after a few months he simply refused to eat it. He hates pork, and there’s surprising no chicken version. I have yet to have a occurrence for over 2 years and counting, he gets 1/8th of a teaspoon with each meal. He eats mostly a raw diet, but sometimes like to mix things up with different pate’s. I either make his food myself or buy high quality locally sourced food without fillers. We have 4 cats with 4 different diets in our household.
Dawn McL
August 25, 2021 at 3:08 pm
This is so interesting. As a long time pet owner I know Hill’s has ridiculous prices on their so-called prescription products. Looking over the ingredients one day I determined that I would never again feed that junk to my pets.
This reads like Erin Brockovich, looking for the smoking gun. I hope the plaintiffs have lots of grit and determination. I fervently hope Hill’s gets the very short end of this stick! I am sick and tired of the big corps getting away with murder while the pet owners just get screwed and lied too.
Hopefully the next judge they get is an informed pet owner/lover.
T Allen
August 25, 2021 at 8:36 pm
Stevie Kucharski-Berger is my #2 hero! I hope they make a movie of this with a happy ending someday! (My #1 hero is Susan Thixton!) 🙂
Susan Thixton
August 25, 2021 at 8:37 pm
Thank you ‘T’
Tina
August 25, 2021 at 11:24 pm
Thanks for an update to this lawsuit Susan! I first read about the beginnings of this lawsuit from your website too.
Cloe
August 30, 2021 at 11:19 am
So I posted some exposure on Prescription diet and some dude working for Hills said he would happily take me to his HQ in Malaysia and he’ll ask some of the local’s famous vets to join this meeting. I’m not sure if you’ll see this but I do hope I can get a reply because fighting kibbles companies aren’t easy to do it alone 🙂 IF this aint a bluff would anyone like to join this?
Valerie in CA
November 18, 2021 at 6:45 pm
By that standard Royal Canin Prescription Diets which are even more expensive than those of Hills Prescription Diets should be included in this litigation. And their prescription food contain some of the very cheapest low quality ingredients. As a rescue that has taken in numerous owner surrenders of older cats who have been surrendered to shelters because of their age and/or health maladies that came with age that their orignal owners didn’t want to have to deal with, I can’t tell you how much we have spent and continue to spend on Prescription Diets for these cats.
Alex
May 29, 2022 at 9:43 pm
We need court cases like this to highlight the nonsense that big companies such as Mars, Hill’s etc.perpetuate and continue to make huge profits out of us pet owners by adding nothing more than extra salt (‘urinary care’) sawdust (‘overweight/ obesity’) etc.to already awful ingredients such as meat ‘by products’ ‘bone meal’ and a whole load of cheap vegetables,rice and pasta that cats and dogs simply do not need. Save your vet fees by learning about how to feed your pet a natural and balanced diet to prevent obesity, diabetes kidney and urinary issues as well as cancers. My cats have never been healthier now they are fed balanced, humangrade raw meat/ organs/ bones. My cats thrive now, not just survive!
Pet ‘food’ companies make truly awful, highly processed ‘foods’ that push your cat and dog to the vets unnecessarily. Any vet that actively promotes processed food, especially dry, is deemed unsuitable to treat my cats.