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Cat Owner Files Legal Action Against FDA in Pet Food Deaths

Writ asks that the agency be ordered to broaden its pet death probe

By Lisa Wade McCormick
ConsumerAffairs.com

August 16, 2007

• RECALL LIST • Consumer Complaints --- News • Illness, Death Dog Nutro Pet Food • Feds Raid PETCO Warehouse in Illinois • Pet Owners Not Thrilled with Poison Food Settlement • CDC Links 2006 Salmonella Outbreak to Dog Food • FDA Orders Illinois Pet Food Maker to Clean Up Its Act • String of Illnesses Afflicts NUTRO-Fed Pets • Pet Owners Not Thrilled with Poisoning Settlement • Menu Foods Settles Pet Food Class Action • Many Pet Foods Still Missing From Store Shelves • Pet Owners Cheer Indictments in Toxic Pet Food Case • Indictments in Toxic Pet Food Case • Diamond Pet Foods Agrees To $3.1 Million Settlement • Tests Find More Toxic Pet Toys • Finding Safe Toys to Give Your Pet • China Agrees to Stepped-Up Food, Drug Inspections • Menu Foods Denies Acetaminophen Found in its Cat Food • Veterinarians Solve Pet Food Death Puzzle • Menu Foods Agrees to Test for Pain Killer in its Cat Food • Lab Tests Again Find Acetaminophen in Pet Food • Toxic Pet Toys: A Doctor's Advice • Consumers Respond to Toxic Wal-Mart Pet Toy Stories • Federal Import Safety Panel Outlines Proposals • Pet Industry Agrees on Need for Toxicity Standards • Industry Responds to Reports of Lead in Wal-Mart Pet Toys • Wal-Mart Attacks Lab Tests that Found Lead, Chromium in Pet Toys • Wal-Mart Reviewing Results of Tests on China-Made Pet Toys • Lab Tests Find Lead, Other Toxins in Pet Toys Sold at Wal-Mart • CANIDAE Denies Reports of Painkiller in its Pet Food • Lab Tests Find Painkiller in Samples of Pet Food • Purina Denies Claim on Bichon Frise Deaths • FDA Blocks Nutro Pet Food Shipment from Entering U.S. • FDA Testing Dog Treats Pulled from Wal-Mart Shelves • Wal-Mart Finds Melamine in Chinese-Made Dog Treats --- • More about Pet Food Recalls ...

A grieving cat owner has filed action in federal court to force the Food and Drug Administration (FDA) to “perform its duty” and investigate other toxins -- besides melamine -- as the culprit in this year’s massive pet food recall.

Don Earl of Port Townsend, Washington, also wants the court to order the FDA to stop what he considers “all activities (by the agency) involving the destruction of critical pet food evidence.”

Earl filed his petition for a Writ of Mandamus on August 9 in Washington’s Western District U.S. Court in Tacoma.

Barron’s Law Dictionary defines this action as “an extraordinary writ issued from a court to an official compelling performance of an act which the law recognizes as a duty.”

The dictionary adds: “It is extraordinary in the sense that it is used only when all other judicial remedies have failed or are inadequate.”

Earl says he’s exhausted all other avenues to make the FDA investigate contaminates besides melamine for the kidney problems and deaths of thousands of pets nationwide that ate the tainted food.

In March, Menu Foods recalled 60 million containers of pet food. The FDA said the imported ingredients used to make the food -- wheat gluten and rice protein -- were tainted with the chemical melamine.

FDA officials said they traced the source of that melamine-contamination to two now-defunct companies in China.

But Earl, whose cat died in January after eating some of Menu’s pet food, says the FDA has ignored other likely causes for the pet food contamination.

“The five-month investigation by the FDA into circumstances surrounding the March 16, 2007 pet food recall, to date, may only be described as whimsical,” Earl writes in his petition. He is representing himself in this action.

“From the beginning, the FDA appears to be following a predetermined script, which is based exclusively on unsupportable theories related to melamine from China. Not only does the ‘melamine from China’ theory fail in the face of all available evidence, the FDA has moved aggressively to discount credible evidence which not only refutes the ‘melamine from China’ theories, but which have every indication, if properly investigated, of uncovering the true source of toxins responsible for the deaths of thousands of companion animals across the entire United States,” he argued.

One of those toxins is acetaminophen, Earl says.

And he has lab reports that support his conviction.

In May, Earl hired a private laboratory in Texas, ExperTox, to analyze samples of Menu’s Pet Pride “Turkey and Giblets” and “Mixed Grill” cat food. That’s the brand of food his beloved cat, Chuckles, ate before she suffered kidney problems and died.

Earl says he took this action because the FDA refused to accept samples of Chuckles pet food.

“Based upon the FDA’s refusal to investigate and apparent dereliction of its investigative duties…the Petitioner began an effort to independently investigate the matter,” he states in his petition.

Earl said ExperTox tested the same styles and lot numbers of Pet Pride cat food that he fed Chuckles.

And those tests detected the popular pain killer, acetaminophen, in the food, ConsumerAffairs.com confirmed.

The tests also uncovered another chemical in the food: cyanuric acid, which is commonly used in pool chlorination.

No Melamine

But they did not detect the chemical that triggered the largest pet food recall in U.S. history – melamine.

That didn’t surprise Earl.

“Melamine has impressed me as being a red herring since day one,” he said. “The substance has been the subject of credible scientific tests and studies for decades. Nothing supports the theory it could be lethal even in amounts 10 times the highest reported to be present in the food.”

Earl says the FDA has turned a blind eye to those scientific facts -- even ones reported by the agency’s experts -- and made contradictory statements about the source of the contamination.

The agency, he says, also disregarded scientific reports that revealed other toxins contaminated the pet food.

Earl cites several examples in his petition, including:

• This comment made by the FDA’s expert, Dr. Donald Smith, during a March 30 press conference: “We have not been able to match melamine or the crystals of melamine in terms of the morphology with the identification we’re seeing visually in the clinically affected cat. I want to state once again that there’s no evidence yet to tie in the melamine;”

• This statement made by the FDA’s Dr. Steven Sundlof during the March 30 press conference that contradicts Dr. Smith: “. . . at this time, none of the independent laboratories, whether it’s the Cornell laboratory or the FDA laboratory -- have been able to confirm the presence of aminopterin (a rat poison and cancer drug) in those samples. And therefore, we are focusing now on melamine;”

• The FDA’s repeated denials of the presence of acetaminophen in samples of Pet Pride’s food, which refute ExperTox’s findings. Earl quotes FDA spokespersons who said: “We cannot validate their (ExperTox’s) findings,” and “At this point, the FDA sees no compelling need to analyze anymore samples of acetaminophen.” Earl’s petitions also points out that ConsumerAffairs.com learned the FDA only tested a handful of samples for acetaminophen and could not confirm it analyzed the same samples in which ExperTox detected the pain killer.

Evidence Destroyed

Earl’s petition also alleges the FDA “systematically destroyed” crucial evidence during the pet food investigation.

“In this case destruction would be the appropriate disposition,” he quotes the FDA’s Dr. David Elder as saying when asked about the destruction of the recalled food.

The FDA’s Web site also stated “all tainted pet food…continues to be recalled and destroyed,” Earl writes in his petition.

He adds: “That critical evidence is being systematically destroyed in an investigation of this nature and scope is unheard of.”

It’s also illegal, Earl alleges.

“…with pending civil litigation and an ongoing federal investigation in progress, this spoliation of critical evidence is a criminal offense,” his petition states. “A court order is required before such destruction may be commenced.”

Earl’s petition further alleges that the FDA’s derelict actions have failed to ensure “foods are safe, wholesome and sanitary” and protect pets and their grieving owners.

“In addition to public safety issues, the deceptive manner in which the FDA has controlled, withheld, and otherwise manipulated critical information, and destroyed essential evidence, is to the detriment of a large class of pet owners who suffered damages caused by the poisoned pet food epidemic,” his petition states.

No Comment

ConsumerAffairs.com contacted the FDA about Earl’s petition. The agency, however, did not respond.

This is the second legal action Earl has taken in the wake of the pet food recall.

In July, he filed a $72,000 lawsuit against Menu Foods and Kroger for emotional and financial damages.

The lawsuit, filed in Washington Superior Court, alleges his cat died because her food contained acetaminophen.

“According to documents and studies published by the (American Society for the Prevention of Cruelty to Animals) ASPCA, due to their body chemistries, cats are unable to tolerate acetaminophen and no amount of acetaminophen is safe for cats,” the lawsuit states.

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