"Science Did That": An Introduction to the Hill's-DCM Class Action Litigation

As you'll have already noticed if you keep up with the pet food industry news, last week a big new lawsuit was filed on behalf of KetoNatural. The suit is actually "big" in more ways than one. The document that summarizes our allegations (it's called a "complaint") is 124 pages long and packed with documentary evidence. The subject matter of the suit is the canine dilated cardiomyopathy (DCM) controversy, which is likely the highest-profile pet food story of the past twenty years. And the amount in controversy is $2.6 billion, which would be the largest judgment in the history of the U.S. pet food industry.

One of the reasons the suit is so large is it's a class action case. In essence, KetoNatural is asking the court to resolve not just our claims but a bunch of similar claims that could be made by other pet food companies, all in a single lawsuit, with KetoNatural representing everyone else. And we believe the aggregate value of all these claims is (at least) $2.6 billion.

We brought the suit against Hill's Pet Nutrition -- the self-proclaimed "#1 Vet-Recommended" pet food company in the country -- along with two affiliated organizations and five affiliated veterinary researchers. And we allege that the defendants conspired to fabricate and spread the false idea that canine DCM is "associated" with what they call "boutique, exotic-ingredient, or grain-free" (or "BEG") dog foods, a group that includes our products.

The law firm representing KetoNatural in the case is Wolf Haldenstein Adler Freeman & Herz. They specialize in using class actions and other legal vehicles to protect consumers and small businesses against large-scale corporate fraud and unfair competition. The firm has been around since 1888 and has received countless awards and recognitions for its groundbreaking work holding powerful companies accountable for fraud and other wrongdoing.

In essence, we allege that Hill's and its co-conspirators manufactured the DCM controversy in order get large numbers of dog-owners to switch from "BEG" brands to products made by Hill's. And, as you'll see if you read the complaint, the scheme has been a breathtaking success. As just one example of how jaw-dropping the financial impact has been, in the four years immediately preceding the controversy (2013-2017), Hill's annual revenues grew by a total of only about 1%. But in the five years since the controversy began (2018-2023), the company's revenues have nearly doubled, growing from $2.39 billion to $4.2 billion.

The wide-ranging scheme that the defendants used to orchestrate this windfall is described in painstaking detail in the complaint. Unfortunately (at least for those of you who have better things to do with your time than read a 124-page legal brief about dog food), I can't really give you a CliffsNotes version here. Courts don't like it when litigants use the media to put their own spin on formal legal allegations. The best I can do is give you a roadmap, so that you can pick and choose the parts that are most interesting or important to you.

• High-level summary of the case: Pages 2-6.

• Background about Hill's and the two affiliated organizations that are also defendants in the case: Pages 9-14.

• Background information about the five veterinarian defendants: Pages 15-33.

• Part one of the scheme (veterinarian defendants send cherry-picked data to the FDA): Pages 34-44.

• Part two of the scheme (veterinarian defendants create the term "BEG" diets): Pages 44-48.

• Part three (a) of the scheme (defendants mischaracterize the science in statements made to the lay public): Pages 48-59.

• Part three (b) of the scheme (defendants mischaracterize the science in statements made to the veterinary community): Pages 60-84.

• Part four of the scheme (defendants use Facebook groups and other social media propaganda to spread misinformation): Pages 84-98.

• Financial damages and other ramifications of the scheme: Pages 98-111.

The rest is mostly "legalese" and probably only interesting to folks with a legal background.

If you want to understand what other people (including lawyers) think about the allegations and the case, a good place to start is with this story published in Pet Food Industry magazine. In addition, here are a few other articles worth taking a look at:

MarketWatch

Reuters

Pet Age

And, at least for now, that's about as much as we can say about the case and the allegations and evidence upon which it is built. We'll do our best to tell you more if and when we can. In the short run, that means that you should probably expect to see a new Feed Your Dog Facts podcast episode about this subject in the coming days. In addition, here are answers to a few of the many questions and comments we have received from pet-owners, reporters, and other stakeholders in the days since the suit was filed:

What is the current status of the FDA's DCM investigation?

In essence, it's over. Our lawsuit is about whether the investigation was induced by fraud. But at this point we can already say that the investigation itself did not actually find the "link" that the defendants in the lawsuit kept talking about.

More specifically, the FDA recently announced that after more than four years of investigation, it has found no good evidence that "BEG" pet foods cause DCM. The agency says it will continue to monitor individual case reports submitted by pet-owners as well as any new science that may be published. But for now, it has indefinitely suspended all further public updates. Why? Here's how Tim Wall, a reporter for Pet Food Industry, put it in his recent article:

"Despite the FDA investigation’s effect on the pet food market, scientists didn’t find evidence connecting certain diets to cases of DCM. More than 150 published studies didn’t reveal to researchers any firm connection among cases of canine dilated cardiomyopathy (DCM) and grain-free dog food."

Why did KetoNatural bring this lawsuit, as opposed to one of the many larger "BEG" brands?

I can say two things about this, one based on my personal knowledge and one that involves a good deal more speculation.

I can definitely say that my unique professional experience played a major role in bringing about the lawsuit. My 2016 book Dogs, Dog Food, and Dogma is largely an investigation of how large pet food companies use their money and power to influence the veterinary nutrition community. And my experience researching and writing the book primed me to recognize the people, organizations, tactics, and other dynamics at play in the DCM controversy. Plus I'm a lawyer with a great deal of experience litigating cases involving corporate misconduct. I doubt there are many (if any) other pet food executives in the United States that possess legitimate expertise in both of these two very different domains. But I do. And that helped me to put all the pieces together.

That said, I'm also willing to speculate that many of the other companies that could have spearheaded this effort but chose not to simply didn't have the courage to do it. As you'll see if you read the complaint, Hill's is both a huge and hugely influential company, particularly in the veterinary community. I can imagine that many other brands didn't want to risk "poking the bear," even when it was the right thing to do for their customers.

What is the expected timeline for the case?

The wheels of justice usually turn slowly and I expect that this case will be no exception. There will be important rulings from the court and other newsworthy developments in the case from time to time over the next year. But a final resolution will almost certainly take a good deal longer than that -- three to five years, maybe more. Rest assured that we're in it for the long haul.

What should pet-owners, retailers, and other pet food companies do if they believe they've also been damaged by the DCM fiasco?

They should contact Thomas Burt at Wolf Haldenstein. He's the lead counsel for our case and is actively investigating whether other claims may be brought against the defendants too. If you believe that you have evidence that's relevant to the existing case, you should let him know about it. And if you think you might have a case worth pursuing, you should let him know about that as well. No promises, but he may be able to help you.

What about veterinarians?

As we explain in our complaint, practicing veterinarians played a huge role in promoting the false idea that "BEG" pet foods cause DCM. This is because much of the scientific misinformation described in the suit was directed at vets, who then passed it along to pet-owners. This strategy not only helped to amplify the reach of the misinformation (because for each clinician there are dozens or hundreds of pet-owner clients), but also added trustworthiness and credibility to it.

But whether this means veterinarians deserve any blame for the part they played is a more nuanced issue. It isn't fair to talk in broad generalizations about the behavior of tens of thousands of different individuals. At the same time, it's inarguably true that thousands of clinicians were not just wrong about DCM but arrogantly and aggressively and dismissively so.

Even worse, whatever their intentions might have been, those individuals were wrong in ways that caused real, verifiable harm to individual animals. Take a look at some of the anonymized customer service tickets found in our complaint at pages 102 to 107. And note how many pet-owners reported being told by a clinician to prioritize DCM over much more real health problems their pets were experiencing, such as diabetes and obesity. 

We'd hope that by the time the dust settles the DCM fiasco will have provoked some earnest self-reflection among vets, both about their own scientific literacy and their confidence in the information they are taught during and after vet school. As we explain in the complaint, promoting false information about DCM is just one part of a broader strategy of veterinary manipulation that the defendants have been using for decades. Unless vets learn to recognize and fight back against these tactics, another DCM-like scandal seems inevitable.

For years, Hill's has been using the slogan "Science Did That" to promote its brand. The allegations set forth in our suit show that this slogan is both monumentally cynical and also deeply ironic.

That is because this Hill's slogan employs a deft sleight-of-hand. In reality, Hill's would like us to understand the term "science" to mean "the auspices of science": the platforms, tools, titles, organizations, and other signifiers of professional-grade scientific experimentation in the modern era. The company wants us to use this interpretation because, at least in the veterinary nutrition world, Hill's has co-opted those institutions so comprehensively that they will reliably produce information that is good for the company's bottom-line (regardless of the rigor, validity, and accuracy of the information --- or its impact on the health and welfare of companion animals).

Fortunately, however, that's not the only definition of the word "science." Better definitions of the word focus not on the professional hallmarks of the scientific process but on what makes that process legitimately special and valuable: its unparalleled capacity to reveal truth about the physical world. 

As such, what exactly "science did" in the case of the DCM scandal depends on which of those definitions you use. If you use Hill's definition, we think you'll agree that science can be said to have brought about a bogus health concern that scared billions of dollars into Hill's coffers. But when all is finally said and done, the better definition of science -- a process with the unique capacity to reveal the truth about the world -- might eventually be said to have brought about real, positive change for pet-owners and their beloved companions.

For now we'll all just have to wait and see. Stay tuned, we'll keep you updated.