Yes, we are the Drug and Device Law Blog. Yes, we at times stray into other areas when we think a decision has application to our DDL world. Yes, today’s case is about a “drug” product. No, today’s case is not about a drug for humans. In fact, it really isn’t about a drug at all, but in the veterinary product world, “drug” actually carries different meanings. The upshot is Vanzant v. Hill’s Pet Nutrition, 2025 WL 296062 (N.D. Ill. Jan. 24, 20025), is a favorable FDCA preemption ruling that we thought was worth mentioning even if it presents in the unusual context of pet food.
Plaintiffs, in a previously certified class, allege that defendants unfairly marketed their “prescription diet” pet food as such in violation of the Illinois Consumer Fraud and Deceptive Practices Act (“ICFA”). The pet food is available to consumers through veterinarians and retail pet stores, but only with a veterinarian’s prescription. Id. at *1-2.
Plaintiffs’ unfair practices claim evolved over time. Originally, the complaint contained allegations that defendant used its “prescription” branding to charge above-market prices. Id. at *5. However, plaintiffs abandoned that theory at the class certification stage in favor of pursuing only a claim that the pet food was marketed for the treatment or prevention of disease bringing it within the definition of “drug” under the FDCA, and without FDA approval the “drug” was adulterated. Id. at *5-6. Not surprisingly, when faced with Buckman preemption at summary judgment, plaintiffs tried to resurrect their earlier theory, but the court rejected that dodge. Since plaintiffs did not advance those claims at the class certification stage, they did not undergo the “rigorous analysis” required to be certified for class treatment.
That left as the only active claim that the product was “statutorily unsafe, adulterated and misbranded” which plaintiffs premised exclusively on the product’s claimed status as an unapproved animal drug. Because that claim would not exist in the absence of the FDCA, it was preempted. Plaintiffs were attempting to bring a disguised FDCA enforcement claim.
Plaintiffs put forth no argument or evidence that the . . .products are unsafe, adulterated, or misbranded outside the confines of the FDCA—in other words, there is no allegation or evidence that a pet was physically injured, fell ill, or was otherwise harmed because of the . . . products, or that the . . . products did not provide the advertised therapeutic benefits.
. . . .
To be sure, Plaintiffs allege that Defendants’ conduct . . . is unfair under ICFA. But why is it alleged to be unfair? Not because any pet was harmed or because the product does not work as promised, but solely because it falls within the FDCA’s statutory definition of unsafe, adulterated, and misbranded products.
Id. at *6, *7.
Distinguishing products liability cases from economic loss cases, the court concluded “plantiffs’ claim was unmistakably one for direct enforcement of the FDCA, for which no private right of action exists.” Id. at *8.
Less on point for DDL Blog purposes, but notable, was plaintiffs’ second claim that consumers were misled to believe that the product legally required a prescription, when the prescription requirement was only imposed by the seller. To prevail on such a claim under the ICFA, plaintiffs need to establish that the misrepresentation was “material” to reasonable consumers and that it caused actual damages. Plaintiffs failed to proffer evidence on either materiality or injury. In fact, the evidence showed that it made no material difference to consumers whether the “prescription” requirement was imposed by law or by the seller. Most consumers bought the pet food because their veterinarians directed them to. Without evidence that consumers were deceived on this point, or injured, the court granted summary judgment. Id. at *12-13.
Finally, one of the named plaintiffs had her claims dismissed for lack of causation based on evidence that she continued to purchase defendants’ pet food after filing suit. Id. at *13-14. Hard to argue she was deceived.
All that is left of this class action lawsuit is one part of plaintiff’s individual claim – making it a paws-itively delightful defense win.