Pet owners are among this blog’s readers (and writers) so every once in a while we check in on the law governing drugs used to treat animals. Yes, such drugs are governed by the FDA. And yes, there can be something approximating or adjacent to preemption applying to such animal drugs. But not always.

Van Zant v. Hill’s Pet Nutrition, Inc., 2019 WL 3928666 (7th Cir. Aug. 20, 2019), was a class action filed by aggrieved cat owners who had purchased higher-priced “prescription” diet cat food. (We are often accused of representing fat cats, but we are pikers compared to the plaintiff lawyers in Van Zant.) Veterinarians had, indeed, written prescriptions. Because the prescription cat food was intended to prevent disease and was marketed as such, it was considered a “drug” by the FDA. But the cat owners contended that the prescription food was no different from the regular stuff; it was a cheat. The plaintiffs alleged claims under the Illinois Consumer Fraud and Deceptive Business Practices Act and for unjust enrichment.

The defendants moved to dismiss the complaint because it set forth fraud claims without specificity and because it was barred by a statutory safe harbor for conduct specifically authorized by the FDA. (That safe harbor was what we meant by preemption adjacent). The district judge bought these arguments and dismissed the complaint.

The Seventh Circuit reversed. First, it held that the safe-harbor provision did not apply. The FDA had issued a guidance in 2016 recognizing that most pet-food products in this “prescription” category do not have the required FDA approval, but that the agency is less likely to initiate an enforcement action if consumers purchased the food through or under the direction of a veterinarian (among other factors guiding the agency’s enforcement discretion). But the Seventh Circuit emphasized that the guidance did not specifically authorize the conduct alleged here, so the safe harbor did not apply. Reasonable minds could (and did) disagree on this point. The safe harbor extends to informal regulatory activity, and the FDA pretty clearly signaled that manufacturers in the position of the defendant could rely on the fact that they would not face liability.

Reliance was also an issue with respect to the fraud claim. The plaintiffs failed to plead any reliance on any alleged deception or unfairness. But we are dealing with a state consumer fraud statute, and by now we are all accustomed to the absence of a reliance requirement. Talk about unfairness. The Seventh Circuit went on to hold that the plaintiffs pleaded the fraud claim with the particularity required by Rule 9(b) of the Federal Rules of Civil Procedure. According to the Seventh Circuit, the plaintiffs articulated the who, what, where, when, how (e.g., specific marketing materials). Consequently, the consumer fraud claim could proceed. In any event, the plaintiffs were complaining as much about unfairness as deception, so particularity was not quite as necessary. As for the unjust-enrichment claim, the court construed it more as a request for relief in the form of restitution based on the alleged fraud. That is because in Illinois unjust enrichment is not a separate cause of action but is a condition brought about by fraud or other unlawful conduct. The unjust enrichment rested entirely on the consumer-fraud claim, so it, too, could move forward.

If the Van Zant case is, at best, adjacent to preemption, it is also, at best, adjacent to our area of practice. Consequently, we do not, ahem, harbor strong feelings about whether the court got things right or whether it is littered with errors. Plus, in truth, we are firmly on the canine side of the dog vs. cat debate. We’ll leave it at this: the Van Zant decision is hardly purr-fect. More likely, it is a catastrophe worthy of a hissy-fit.