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Kansas woman sues over prescription pet foods that her lawyer calls a ‘fake pharmacy’

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For five years, Stevie Kucharski-Berger fed her dog, Theo, a potato and duck pet food prescribed by her vet.

Now, the Olathe woman is suing Topeka-based Hill’s Pet Nutrition Inc. over what her attorney calls a “fake pharmacy” approach to overcharging consumers for ordinary goods.

Kucharski-Berger filed the suit Tuesday in Johnson County District Court and seeks class action status to represent all Kansas consumers in her situation. According to the complaint, none of the food has been reviewed by the U.S. Food and Drug Administration.

“It’s best described as a fake pharmacy, this notion of prescription pet foods, which they haven’t had certified as drugs by the FDA,” said Michael Kelly, a California-based attorney involved in Kucharski-Berger’s lawsuit and one in California’s federal court.

The suit says that prescription pet food contains no drug or ingredient that requires FDA approval or a prescription under federal or Kansas law.

In addition, the prescription food comes with a considerable but unjustified price increase, the suit said.

For example, the lawsuit said, Hill’s sells a prescription urinary care cat food for $5.62 a pound and a non-prescription urinary-hairball control cat food for $3.51 a pound. None of the differences in their ingredients involve drugs or justify the price, the suit said.

A spokesman for Colgate Palmolive Co., which owns Hill’s, declined to comment about the Kansas lawsuit or Hill’s prescription pet food products.

According to the Kansas lawsuit, manufacturers, retailers and veterinary services — through interconnected ownership — have created the need for a prescription as a marketing tactic. It also said the companies use the Rx prescription symbol and that this is “false, misleading and contrary to law.”

The Kansas court case targets Hill’s but identifies other pet food manufacturers, retailers and veterinary services that operate in Kansas.

Its list includes Mars Inc., which is better known as a candy company but also is a major player in pet products.

Mars is the current or former owner of Royal Canin and Iams prescription pet foods, the suit said. It also owns the Blue Pearl Pet Hospital group based in Florida, the VCA veterinary group based in Los Angeles, and the Banfield Pet Hospital chain based in Oregon that operates in PetSmart stores, according to the lawsuit.

PetSmart, its Chewy.com online retailer and St. Louis-based Purina round out the lawsuit’s list of “non-party co-conspirators” that combined with Hill’s account for 95 percent or more of the prescription pet food market, according to the lawsuit.

A search on Chewy.com shows an Rx symbol appears with Hill’s Prescription Diet pet foods. The symbol is accompanied by an explanation that the item “requires prescription approval” and advises consumers that Chewy.com will “collect your pet and vet information to verify this prescription before shipping.”

This isn’t the first suit against Hill’s Pet Nutrition. Many were sued along with Hill’s in a federal case brought in California in late 2016. Consumers filed an antitrust complaint and were represented in part by Kelley’s firm that is working with the Olathe consumer.

The judge dismissed the case in July 2017, but Kelly said the dismissal is being appealed.

Kucharski-Berger’s suit claims Hill’s violated the Kansas Restraint of Trade Act and the Kansas Consumer Protection Act. It seeks to recover Kucharski-Berger’s unspecified actual damages or civil penalties of up to $10,000 for each of her purchases of Hill’s Prescription Pet Food over the last three years. It seeks damages for the class of similar Kansas consumers as well.

It also seek orders to change the company’s practices and to require it disgorge its “ill-gotten profits” from sales in Kansas.

The suit says it’s all part of an effort by the companies to “prey on the known propensities of consumers to love their pets and trust their vets.”

Mark Davis writes about business for The Kansas City Star with attention to Sprint, investing, the economy and scams. He has been a winner and finalist in national competitions held by the Society for Advancing Business Editing and Writing.


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