Settlement in alleged consumer fraud case

          ST. LOUIS, Missouri––Applications to the IRS for income tax return are due on Monday,  April 18,  2016,  but another deadline,  four days earlier,  may mean more money––up to $200––for people who bought Blue Buffalo pet food products between May 7,  2008 and December 18,  2015.

Reimbursements of up to $200

Class Members in seven consolidated class action lawsuits alleging consumer fraud by Blue Buffalo “must mail or submit a completed claim form online by April 14,  2016,”  explains https://www.petfoodsettlement.com/,  to be eligible for cash repayment of $5.00 per $50 spent on Blue Buffalo products,  up to a limit of $200 per claimant.

Claimants need not have proof of purchase documentation,  but claimants submitting only an affidavit of having bought Blue Buffalo products,  without proof of purchase,  will be eligible for total reimbursements of only up to $10 each.

Pile of blue buffalo chips, Ellsworth County, Kansas, 19th century.

“False & deceptive”

The reimbursements will be for a proposed settlement of cases alleging that Blue Buffalo product labeling “was false and deceptive,” and that it falsely claimed that the products did not “include chicken/poultry by-product meals,  corn,  wheat or soy,  or artificial preservatives,”  the petfoodsettlement.com web site continues.

“Blue Buffalo stands by its labeling and denies it did anything wrong,”  the petfoodsettlement.com web site adds,  “However,  Blue Buffalo has settled to avoid the cost and distraction of litigation.”

May 19,  2016 hearing

The U.S. District Court for the Eastern District of Missouri is to hold a fairness hearing on May 19,  2016 “to determine the fairness,  adequacy, and reasonableness of the settlement,”  says petfoodsettlement.com,  “to consider whether to approve the settlement,  and to consider a request by Class Counsel for payment of attorneys’ fees and costs and class representative incentive awards.”

The reimbursements,  legal fees,  and administrative costs associated with making the reimbursements are to come from a pool of up to $41 million that Blue Buffalo agreed to provide in December 2015.

Wilbur-Ellis plant near Bayview, Washington.  (Beth Clifton photo)

Wilbur-Ellis

The proposed settlement came almost eight months after attorney Steven A. Zalesin,  representing Blue Buffalo,  on May 6,  2015 admitted to U.S. District Judge Rodney W. Sippel,  in a case brought by pet food manufacturing giant Nestlé Purina Petcare,  that Blue Buffalo dog food has long contained poultry byproducts, contrary to advertised claims that it does not.

Zalesin blamed the discrepancy on ingredient supplier Wilbur-Ellis.  Testified Zalesin, according to the court record, “Wilbur-Ellis delivered product to Blue Buffalo’s co-packers,  which was not what Blue Buffalo ordered and purchased and paid for,  not what it was labeled to be…We ordered high-priced, high-quality chicken meal. We paid for high-priced, high-quality chicken meal, but that’s not what we got in many instances.”

Definitions of terms

Nestlé Purina Petcare, long the leading pet food industry sponsor of animal shelter aid programs,  had in May 2014 filed suit against Blue Buffalo,  alleging that “Blue Buffalo’s promotion, advertising and packaging repeatedly and unequivocally state that its pet food products contain ‘NO Chicken/Poultry By-Product Meals.’”

Some customers may have believed that the Blue Buffalo ad claims meant that Blue Buffalo dry foods did not contain renderings from poultry slaughter at all.  The crux of the legal issue,  however,  appears to be the somewhat obscure technical difference between “poultry product meal” and “poultry by-product meal,” and how Blue Buffalo used the terms.

(Kenny Robbins photo)

Heads,  feet,  & entrails

Explained Hillary Watson in the January 2006 edition of Dogs In Canada magazine, “The two most common chicken ingredients in dry pet foods are poultry meal and poultry by-product meal.”

According to the definitions used by the Association of American Feed Control Officials, Watson wrote, “the difference between poultry meal and poultry by-product meal is the inclusion of heads,  feet, and entrails in the latter.”

Any nutritional difference between poultry meal and poultry by-product meal are difficult to discern, Watson illustrated in a table showing the findings from papers published in the Journal of Animal Science in 1998.

Council of Better Business Bureaus

Even before Purina sued Blue Buffalo,  the National Advertising Division of the Council of Better Business Bureaus on March 25, 2014 “found Blue Buffalo’s advertisements to be misleading and disparaging against competitors’ products,” Nestlé Purina Petcare recalled in a May 2014 media release.

The National Advertising Division of the Council of Better Business Bureaus also  “found Blue Buffalo’s advertising deceptive in a 2008 decision,”  Purina added.

At that time the National Advertising Division of the Council of Better Business Bureaus recommended that Blue Buffalo should stop claiming that it does not use animal by-products “when referencing pet food products that actually do contain animal by-products,  such as fish meal,  lamb meal,  and/or liver.”

The two National Advertising Division verdicts came in response to complaints brought against Blue Buffalo by Hill’s Science Diet,  the Colgate-Palmolive subsidiary that is the world’s third largest pet food producer,  after Purina and Mars Inc.

Melamine

Blue Buffalo and Wilbur-Ellis were also central to the melamine pet food contamination episode that hit the U.S. in December 2006,  killing at least 1,950 cats and 2,200 dogs in the U.S. alone,  according to Food & Drug Administration estimates.  The Banfield veterinary hospital chain put the possible toll far higher,  at as many as 7,000 animals.

Wilbur-Ellis in July 2006 began importing melamine-tainted rice protein concentrate from the Chinese supplier Futian Biology Technology Co. Ltd.,   Wilbur-Ellis president and chief executive John Thacher later told MSNBC.

Melamine,  a coal by-product, is commonly used to manufacture hard plastics.  Because melamine has a chemical signature similar to that of protein, it was illicitly added to grain glutens by several Chinese manufacturers so that pet food ingredient buyers would believe the grain glutens contained much more protein than they actually did.

Wilbur-Ellis resold the melamine-tainted material to five pet food manufacturers, including those supplying Blue Buffalo, Natural Balance, and Royal Canin.

Home 4 the Holidays

Blue Buffalo has since 2013 sponsored Home 4 the Holidays, an October-through-December shelter animal adoption program directed by the Helen Woodward Animal Center in Rancho Santa Fe, California.  Begun in 1999,  Home 4 the Holidays was previously sponsored by Iams.

The Helen Woodward Animal Center advertised the 2014-2015 Home 4 the Holidays program in ANIMALS 24-7 from June 2014 until November 6, 2014, including the Blue Buffalo logo in the ads, but cancelled the ads less than 24 hours after pit bull advocacy web sites announced a boycott of Blue Buffalo for allegedly funding ANIMALS 24-7.

The boycott was called barely three hours after ANIMALS 24-7 on November 5, 2014 reported that 65% of the electorate in Aurora, Colorado, had voted to upheld a local pit bull ban.

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