Court Refuses to Dismiss Contaminated Dog Food Complaint

A federal court in Washington will allow plaintiffs to amend a false advertising complaint alleging that their dogs became sick after eating pet food contaminated with pentobarbital, a drug used to euthanize animals. Mael v. Evanger’s Dog & Cat Food Co. Inc., No. 17-5469 (W.D. Wash., entered February 20, 2018). The complaint alleged that the plaintiffs’ dogs became ill after eating Evanger’s beef products and that a U.S. Food and Drug Administration (FDA) investigation found traces of pentobarbital in several of the company’s products. The plaintiffs allege that Evanger’s falsely advertised the products as “human grade, USDA inspected meats,” although FDA reportedly found that none of the company’s products were USDA-inspected or human grade. After the FDA investigation, Evanger’s recalled all of the products.

Evanger’s moved to dismiss the complaint, arguing that plaintiffs referred to both recalled and non-recalled products. The court found that the plaintiff had failed to allege “beyond mere speculation causation between the food and the symptoms” and that the complaint lumps together dogs that became sick from the recalled beef products with a dog that became sick after eating a non-beef, non-recalled product. Finding that the deficiencies could be cured by additional facts, the court granted leave to amend.