Smucker’s Believes Recall And Refund Is Sufficient Penalty
Gravy Train pet food believes a recall and a refund is sufficient to dismiss a pentobarbital poisoned pet food consumer lawsuit.
On February 9, 2018 pet owners learned that Smucker’s Big Heart Brand Gravy Train contained the deadly poison pentobarbital. Washington DC television station WJLA investigation into pet food found pentobarbital in 9 of 15 cans of Gravy Train dog food.
A few days later – February 14, 2018 – Smucker’s Big Heart pet foods issued a “withdrawal” for certain varieties of canned pet food. It’s significant to note, Smucker’s issued a withdrawal, not a recall. Withdrawals can be pretty quiet, minimal notice to pet owners. But a recall requires the manufacturer to issue a nationwide press release.
As Smucker’s Big Heart tried to alter their path to removing millions of cans of pet food from store shelves, FDA issued an “Alert” to pet owners warning the Smucker’s pet food could be contaminated with pentobarbital.
But, a couple of weeks later FDA insisted Smucker’s officially recall the pet foods because the pentobarbital contaminated pet foods officially fell into a category that required recall status.
It ended up, that more than 107 million cans of pet food were recalled because pentobarbital in pet food is a certain risk to pets.
And now…Smucker’s is trying to alter the path they take again.
A consumer class action lawsuit was filed against Smucker’s Big Heart Brands pet foods on February 9, 2018 stating: “Defendant wrongfully advertised and sold the Contaminated Dog Foods without any label or warning indicating to consumers that these products contained any level of Pentobarbital or that Defendant utilized animals that have been euthanized as a protein or meat by-product source.”
Smucker’s Big Heart is asking the court to dismiss the lawsuit – because they believe a recall and a refund is sufficient payback to consumers. Quoting the Smucker’s Big Heart Brands request to dismiss:
Plaintiffs’ claims are moot, because all of the relief they are seeking has been made available through a standing refund offer.
In early 2018, upon learning that some of its pet food had been found to contain a chemical called pentobarbital, Defendant took immediate action to address the problem: working with the FDA to recall affected products, offering full refunds to customers (including Plaintiffs and all members of the putative classes), and even offering to pay veterinary bills for concerned pet owners to confirm their pets’ well-being. Plaintiffs now seek to maintain 47 claims related to this contamination, on behalf of a putative nationwide class and 13 state subclasses. However, all of these claims are moot because Defendant has ceased selling and recalled the products and made a standing offer to fully compensate Plaintiffs for all of their pleaded damages. As Plaintiffs have no claims that qualify for punitive damages, there is no additional remedy available to them at law.
While Plaintiffs’ Amended Consolidated Complaint (“Complaint”) consists primarily of provocative material about the risks and harms of pentobarbital to animals, and mud-slinging about Defendant, the gravamen of the Complaint is rooted in alleged false advertising. In fact, not one of Plaintiffs’ claims is grounded in any actual or potential harm to pets.
In February of this year, Defendant learned of a report indicating that its Gravy Train brand of dog foods had tested positive for the drug pentobarbital. Defendant, and its parent company, Smucker, immediately launched an investigation to verify the report, determine where and how the drug had infiltrated its supply chain, and uncover which products might have been affected. It also began cooperating with the FDA to investigate possible sources and effects of the drug, and consulted veterinarians and animal nutrition specialists, who confirmed that the pentobarbital would not pose any risk to pets.
Once Defendant confirmed the presence of pentobarbital in certain of its products, it acted immediately. A press release was issued to inform the public of all potentially affected products and, despite the minimal risk to animals, Defendant took steps to mitigate concerns by withdrawing potentially affected shipments, and inviting consumers to call with questions.
Plaintiffs’ Fraud Claims Do Not Show Knowledge or Intent to Deceive. Defendant Did Not Make Any Express Warranties To sufficiently plead breach of express warranty, Plaintiffs must ‘identify a specific and unequivocal written statement’ about the product that constitutes an ‘explicit guarantee (FDA website stating pet food is safe to consume)
In other words, Smucker’s Big Heart Brands firmly believes they did enough…a recall and a refund was sufficient payback to the pet owners that trusted their pet foods.
To read the full Smucker’s request for dismissal of the lawsuit, Click Here.
The legal process allows for Smucker’s to request this lawsuit to be dismissed. But, the legal process also allows for the attorneys representing pet owners to ask the court to continue the lawsuit. Here are excerpts from the other side:
This case is about Big Heart improperly selling adulterated dog food (collectively “Contaminated Dog Foods”)3 that contained pentobarbital, a Class II controlled substance that should not be present in pet food at any level. Nowhere in Defendant’s Motion does Defendant deny that it improperly sold adulterated dog food, nor does Defendant deny that selling adulterated dog food is prohibited. Instead, Defendant admits that it sold products marketed as dog food that were wholly inappropriate for consumption by dogs due to their contamination with pentobarbital. Defendant attempts to minimize this gross wrongdoing by focusing on the action it took after a third-party reported that certain of the Contaminated Dog Foods contained pentobarbital and this action had been filed in this Court. But, as established below, these late actions taken by Defendant do not eliminate its liability for selling the Contaminated Dog Foods and misleading consumers as to the nature and quality of the Contaminated Dog Foods.
In the end, Defendant was forced to recall 90 million cans of pet food spanning multiple brands, and testing by the FDA confirmed the presence of pentobarbital in the tallow supply included in the Contaminated Dog Foods, with significant levels of over 800 parts per billion (“ppb”). Defendant claims that the source of the contaminated tallow is one supplier—JBS USA Holdings, Inc. (a subsidiary of JBS S.A.) and its rendering facility MOPAC located in eastern Pennsylvania (collectively, “JBS”)—who knowingly works with recycled meat by-product, including animal byproducts not suitable for human consumption, and accepts euthanized horses.
Defendant made numerous claims on its Contaminated Dog Foods’ labels and through advertising related to the safety and nutritional value of its pet foods, including the phrases: “100 percent complete and balanced nutrition”; “providing safe, healthy, and high-quality food” with “the purest ingredients”; and “nourishing meal.” AC ¶¶51-53; 113. It further promised to its consumers that all its products met U.S. Department of Agriculture (“USDA”), American Association of Feed Control Officials (“AAFCO”), and Food and Drug Administration (“FDA”) standards.
Defendant touted its quality assurances and supplier standards to further support its claims of healthy, safe, pure, and quality dog food. Specifically, Defendant maintains that it keeps rigorous quality and supplier standards from “start to finish” and performs three-tier auditing that includes third party auditors, to ensure pure ingredients and fair labor are used in its products, including the Contaminated Dog Foods.
To read the full response to Smucker’s request for dismissal, Click Here.
Question to pet owners:
Do you believe a recall and a refund is sufficient penalty for Smucker’s Big Heart?
Wishing you and your pet(s) the best,
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