THE BLOG

Class Action Suit vs. Beneful Will Be Hard to Prove

03/10/2015 04:16 pm ET | Updated May 10, 2015

Nestle-Purina Petcare is the second largest pet food company in the world and the largest in the United States. As such, they are a big, tempting target for a lawsuit for any dog owner who feeds one of their foods and has a pet that gets sick. In fact, because they are so big and because they use some by-products from human food production, Purina is often a target of pet owners who suddenly have their eyes opened and want "healthy" food for pets. By "healthy" I mean grass-fed beef, free range chicken, organic ingredients, or other very high quality ingredients. These are great ingredients in a pet food, but it's debatable whether a pet food should be attacked because it does not include these ingredients. Not everyone can afford to feed a dog food that has these pricey ingredients; and there are good dog foods that don't use gourmet ingredients.

Many people are under the impression that dog foods made by small companies with the most expensive ingredients are automatically better for dogs. That's not true. They often believe that dog foods made by large companies like Purina, which can use some modest ingredients, are inferior. Again, that's not true. Dog foods are more than the sum of their parts. Think of it this way: if someone is a bad cook, it doesn't really matter if they use the finest ingredients. The meal they make can be inedible. On the other hand, a good cook can take humble ingredients and make a delicious meal.

In the current class action suit being brought against Purina over its Beneful dog food, filed February 4 in federal court in northern California, there are already some misconceptions. If you missed the first flurry of reporting about the case, the Lucido family began feeding Beneful to their three dogs in late December or early January. The dogs -- a 4-year-old German Shepherd, an 8-year-old Bulldog, and an 11-year-old Labrador -- were living in different places because of renovations on the Lucido home. All three dogs became sick by the end of January and the Bulldog died. A necropsy revealed that there was internal bleeding in the dog's stomach and lesions on his liver. A veterinary exam showed similar symptoms for the German Shepherd -- signs of internal bleeding and malfunction of the liver "consistent with poisoning." Both the German Shepherd and the Labrador continue to receive vet care. Mr. Frank Lucido, the plaintiff, blames the dog food for his dogs' illnesses.

Mr. Lucido is seeking more than $5 million in damages, plus costs and fees.

Jeffrey B. Cereghino, attorney for Mr. Lucido, found reports of dissatisfied dog owners and sick dogs on the ConsumerAffairs.com site. According to articles, there were 708 one-star ratings and more than 3,000 owners who reported dogs were sickened after eating Beneful. (More one-star ratings have been added to the site since the class action suit was announced.) Symptoms included vomiting, diarrhea, internal bleeding (stomach), liver problems, dehydration and weight loss.

Mr. Cereghino said that he suspected the cause of the problem might be the ingredient propylene glycol. There is some obvious confusion about propylene glycol in the reporting on the case. It's been reported that propylene glycol is used in anti-freeze. Not exactly. It is not the same anti-freeze that most people put in their vehicles. That's ethylene glycol which is highly toxic. Just a tiny amount can kill your dog. Propylene glycol is a chemical cousin of ethylene glycol and it is used in "safe" anti-freeze. It's much less toxic than ethylene glycol. In fact, it is generally recognized as safe ("GRAS"), which is FDA slang for "go ahead and use it." Propylene glycol is in lots of human foods such as ice cream, salad dressings, and cake mixes, coffee, beer and soda. Your doctor and veterinarian also use it to dilute oral medications. It's also used in lots of pet foods. It's a very common ingredient. It's used as a preservative, among other things. You probably ingest propylene glycol in your food and drinks every day. Unless there is a toxic level overage of propylene glycol in a pet food, it shouldn't harm your dog when he eats the food. Is it a desirable ingredient? Not if you are looking for the most natural ingredients. But it shouldn't make your dog sick either, especially in the small amounts usually found in dog foods. Likewise, some of the dogs that have become sick did so after eating the food for only a short time. The ordinary amount of propylene glycol added to dog foods shouldn't affect a dog in that way.

Mr. Cereghino also speculated that the food might contain mycotoxins, which can come from moldy grains. It's produced by mold fungus. Beneful, like lots of pet foods, contains grains. However, mycotoxins can also be found in animals that eat contaminated crops, so they can be found in meat, eggs, and milk products, too. There are over 400 different kinds of mycotoxins (and more being discovered) and some of them can be found in pet food. If they are present in high enough concentrations, it is possible that they could make a dog sick or lead to death.

According to an article in Dogs Naturally Magazine:

Testing in the US shows that apart from the recalls from high levels of aflatoxins, nearly every pet food on the market contains aflatoxins or other mold-related mycotoxins. In 2012, animal health and nutrition company Alltech analyzed 965 animal feed samples and found 98 percent of them were contaminated with one or more mycotoxins, while 93 percent contained two or more mycotoxins.
On top of the existing risk, there is further potential for mold spores to contaminate kibble during storage, especially if it is exposed to a moist environment. This can also happen in your home if your kibble is stored in a moist basement or an open container.

Both the FDA and the European Union allow minimal levels of mycotoxins in pet foods.

Pet food tests undertaken by the Association for Truth in Pet Food in 2014, with funding by pet owners, found that eight out of eight pet foods tested contained mycotoxins. Beneful dry dog food was included in the tests and scored a "high risk" for mycotoxins, though it scored much lower than one of the cat foods tested.

Oddly, Mr. Lucido did not have the food that was fed to his dogs tested before launching the lawsuit, which might lead someone to wonder if the plaintiff was hoping Nestle-Purina would offer a settlement to make the case go away without actually having to do any investigation or pursue the case in court. If that was the intent, hopes must have been dashed when Nestle-Purina responded publicly by saying they would vigorously defend their product. Keith Schopp, vice president of corporate public relations, said, "We believe the lawsuit is without merit and we intend to vigorously defend ourselves. Beneful is a high quality nutritious food enjoyed by millions of dogs each year and there are no product quality issues with Beneful."

There have previously been two class action suits involving Beneful and both have been dismissed.

The idea of using complaints on a consumer affairs site may not be as sound as it seems at first sight. Everyone on the Internet complains. Complaints about dog food are rampant, whether the food is at fault or not. Some complaints on consumer affairs sites are no doubt justified but there are also complaints that are less believable. Just as some companies try to slip in phony positive reviews, there are also competitors that submit fake negative reviews. You, too, can be hired as a freelance writer to write negative dog food reviews about a company's competitor for these sites. You think it doesn't happen? Ask some freelance writers who write about dog food or check ads on freelance writing sites. I write about dog food full-time. It happens. Writers are hired to post x number of comments or reviews using fictitious names. You can't believe everything you read online. Imagine that. So, how many of those one-star reviews for Beneful are real? You can check any dog food on ConsumerAffairs.com and you will find some terrible complaints, even about foods with the best reputations.

This is one reason why dog lovers are often stunned when the PR for a dog food is bad but government entities express approval of the food. You can tar and feather a dog food online but it's more difficult to change a chemical analysis. This is not to say that Beneful is a great food, but it's not going to be easy to prove the class action case against it based on consumer complaints online.

Likewise, the speculation regarding mycotoxins in the food will be hard to prove. Beneful has never had a recall and recalls of any Purina dog foods have been few and far between. Most of their foods do not rank with foods like Orijen, Wellness, I and Love and You, or ZiwiPeak in terms of ingredients but they have some very good foods. Some of the great advantages that large pet food corporations have over their smaller competitors are research and development, product testing, and quality control. Purina is very good at product testing and quality control. If there is a problem with one of their foods, they usually spot it before the product leaves the plant.

The FDA has not identified any problems with Beneful or issued any warnings about the food.

You can read Purina's entire response on their Beneful website.

Don't be surprised if this lawsuit is dismissed the same way previous class action suits against Beneful have been dismissed.

CORRECTION: This post previously stated that results of the Association for Truth in Pet Food's mycotoxin test results were no longer available online. They are available here.