Friday, February 27, 2015

Giving a Bad Name to Class Action Lawsuits

Purina is more than fine, but that tennis ball might end up being a problem.

Because my day job deals with the law, I am more than aware that anyone can sue anyone about anything.

This makes for a lot of tempest-in-a-teapot lawsuits:  half-crazed tenants, malevolent landlords, psychotic mental patients, and a train of Pyrrhic divorce cases.

And then there are class action lawsuits.

Class action lawsuits have their place. Sometimes a large corporation needs to "feel the heat to see the light," and there is no other way to get their attention and force change.

But too many class action lawsuits are, in fact, invented whole cloth by lawyers who manufacture claims in order to force settlements in order to gin up legal fees.

These cases -- and good people can and will disagree about how many of them there are -- are the kind of thing that gives class action lawsuits a bad name.

A classic example of a manufactured class action lawsuit is going on right now.  It seems that someone whose dogs were no doubt killed by rat poison, has decided that Purina's Beneful dog food is to blame.

Their proof?  They seem to have none. It seems that if a dog died it must be the dog food. The trolling lawyers point to "mycotoxins" and propylene glycol in the dog food.

Right. These folks seem to have NO IDEA what mycotoxins are, or what propylene glycol is.

To start with, "mycotoxins" are not part of any dry dog food manufacturing process. They are, in fact, a fungus contamination caused by poor storage of dog food.

To make it simple, kibbled dog food is treated with FIRE -- one reason I endorse it.

Kibbled dog food is cooked hot and hard and has a low water content and generally contains preservatives to reduce contamination.

That said, ANY food, from fruit to bread, and from crackers to fruit cake, can develop mycotoxins if stored long enough in the wrong circumstances -- one reason I advise folks to buy their dog good at the grocery store where turnover is FAST.

So, even if "mycotoxins" were a problem, it's not a dog food manufacturing problem -- it's the fault of the store you bought it from. Or your own. How long was this food lying around in your garage?

Now, what about "propylene glycol"?  That sure sure sounds bad. Isn't that antifreeze - the green stuff that leaks out of cars and can kill a dog dead?

Nope. You are almost certainly thinking of methanol (wood alcohol) or (even more likely) ethylene glycol, both of which are quite poisonous.

Propylene glycol, on the other hand, is quite safe.

In fact, Propylene glycol is so safe it is approved for human food consumption and is found in foods found in your kitchen and bathroom right now: Kraft salad dressings, Entenmann cakes, ice cream, and flavored iced tea, to say nothing of hand and face moisturizers, injectable medicines, and even your daily vitamin capsules.

As the folks at and the U.S. Food and Drug Administration (FDA) note:

As a food additive, propylene glycol is on the U.S. Food and Drug Administration (FDA) generally regarded as safe list (not to be confused with ethylene glycol, which is extremely toxic if ingested). According the FDA, as a food additive, propylene glycol is metabolized in the body and is used as a normal carbohydrate source. Long-term use and substantial quantities of propylene glycol (up to five percent of the total food intake) can be consumed without causing toxicity. There is no evidence in the available information on propylene glycol that demonstrates, or suggests a hazard to the public when they are used at levels that are now current or might reasonably be expected in the future.

So, to recap, propylene glycol is FDA-approved and entirely safe as normally used in foods and medicines for both humans and dogs, while mycotoxins are common to ALL foods that are improperly stored.

Now, will a lawyer trolling for a legal case advertise this? Hell no! He might not even know this.

New accounts leave off another big part of the story: class action lawsuits have to get certified. To get certified, this case will have to provide some minimal level of proof that there is some evidence or science behind it and, as of right now. the lawyers in question admit they have NOT yet done the "dog work" (pun intended) to make their case.

Even if a case were certified, however (and I will bet $200 that will never happen), the only people who will ever make out like bandits are the lawyers who will try to bill their legal time at $500 an hour.

The people in the "class," who are the putative "victims" here will get nothing more than coupons or some other token award of little or no real value. Not that there are actual "victims" in this particular case.

So, to come back to it, these are the "chief beefs" with class action lawsuits:  1) they are too often manufactured by lawyers based on little evidence; 2) these lawsuits make millions of dollars for a handful of lawyers but provide no real relief to the victim (even if there is one).

In this Purina case, the lawyers have come out swinging without completing even the most cursory laboratory testing. If they think they can simply fling dirt in the air and have Purina roll over, I suspect they will find they are mistaken. Based on what the class action lawyers in this case have themselves said to the press, I think they have already violated Rule 11 of the Federal Rules of Civil Procedure which requires a lawyer to do due diligence and conduct a serious investigation before filing. I would not be surprised if Purina came back looking for far more than legal fees when this all goes south. A claim for defamation is more than credible, and in this matter, based on what has been said so far, I think it could end up being big bucks.

Bottom line: If you are looking for a good example of why some lawyers give class action law a bad name, you can do no better than look at current attempts to manufacture a case against Purina.

As always, feed your dog whatever you want, but remember that no dog food has EVER been shown to be better than any other. Unlike most dog food companies, however, Purina has been making bagged kibbled dog food for more than 100 years, has its own manufacturing plants and long-term suppliers, has a brand name worth defending, has its own laboratories and kennels, and funds working dog events as well as rescue. I feed my dog Purina bagged kibble, and it was not a decision taken lightly. That said, as I noted more than five years ago,

Does that mean you should feed your dog Purina? Of course not. Feed your dog any damn thing you want. I do not care.

Just be advised of the most important thing about dog food: the single greatest toxin in dog food is not salmonella. It's not aflatoxin. It's not melamine or botulism. It's not ecoli or ethoxyquin or BHA or BHT.

The single greatest toxin in dog food is YOU.

About 40 percent of all dogs are obese, and that's not the dog's fault or the dog food manufacturer's fault. That the owner's fault.

Now I know it's become somewhat politically chic these days for overweight people to say there's nothing wrong with being fat.

I get it -- let's not be rude. That said, from a health point of view, it's complete nonsense. Obesity kills, and it kills every damn day.

Fat people have wrecked knees and wrecked hips and chronic back problems. They have liver damage and they have high blood pressure and diabetes, and all of that costs this nation scores of billions of dollars a year.

And what is true for humans is also true for dogs. A fat dog will have a shorter life, more joint and back problems, more liver and other organ failure, and far more expensive veterinary bills.

And as for that ball in the picture at top -- that actually is a serious threat to the health of that dog.

And yes, I have written about that too, here and here and here.

If someone wants to gin up a class action lawsuit against Petco and PetSmart for selling dog toys that they know, or should know, will end up killing scores of thousands of dogs, I think that's a case that might have legs. But this case against Purina for Beneful dog food? Not so much.

The bagged kibble is fine; it's the squeaky toys that can kill.


John Watts said...

Hi Patrick, I don't know if you allow this, but I have a paperback copy of "Tales of a Rat Hunting Man" for sale on eBay if any of your readers might want a copy.

bamboobear21 said...

That was an interesting read. We were actually told by a rescue group (for Shelties) that we could adopt any of their dogs because we fed our dogs Purina dog chow. We met all other criteria but were unwilling to switch to blue buffalo food. We have been feeding our dogs Purina for as long as I can remember. Never been a problem for us. So tired of all the fear mongering and pressure to feed your dog like a wolf because he descended from one. We are related to chimpanzees but I dont plan to feed my children chimpanzee food. Dogs evolved differently from wolves, and I dare say their nutritional needs are NOT the same as a wolf. It's just silly to me.

Alex R said...
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