Facts

Toxins like arsenic and lead can cause serious illness to humans and animals. WellPet, LLC, makes premium-priced dog food that it holds out to be healthy, nutritious, natural, and high quality. Daniel Zeiger, Danz Doggie Daytrips, and Amy Freeborn, individually and on behalf of all others similarly situated, brought a class action against WellPet and Berwind Corporation.

PLAINTIFFS' CONTENTIONS: Plaintiffs asserted claims for negligent misrepresentation; violation of the California Consumer Legal Remedies Act; violations of the California False Advertising Law; violations of the California Unfair Competition Law; Breach of express warranty; Breach of implied warranty; and negligence per se. Plaintiffs contended that defendants manufactured, marketed, advertised, labeled, distributed, and sold Wellness CORE Adult Dry Ocean Whitefish, Herring Meal and Salmon Meal and Wellness Complete Health Adult Whitefish and Sweet Potato. Plaintiffs alleged that these products contained material and significant levels of arsenic and lead. Plaintiffs contended that, despite the known risks of arsenic and lead exposure, defendants negligently, recklessly, and/or knowingly sold the contaminated dog foods despite containing alarming levels of arsenic and lead. Plaintiffs argued that the independent lab testing of the contaminated dog foods found that Wellness CORE Adult Dry Ocean Whitefish, Herring Meal and Salmon Meal contained 1,500 ppb of arsenic and 221 ppb of lead and Wellness Complete Health Adult Dry Whitefish and Sweet Potato contained 1,200 ppb of arsenic and 220 ppb of lead. Plaintiffs also claimed that defendants knew or should have been aware that a consumer would be feeding the contaminated dog food multiple times each day to his or her dog being the main, if not only, source of food for the dog, which leads to repeated exposure of the toxins to the dog. Plaintiffs alleged that defendants wrongly advertised and sold the contaminated dog foods without any label or warning indicating to consumers that these products contained arsenic or lead, or that these toxins could over time accumulate in the dog's body to the point where poisoning, injury, and/or disease could occur. Plaintiffs further asserted that defendants' omissions were not only material but also false, misleading, and reasonably likely to deceive the public.

DEFENDANTS' CONTENTIONS: Defendants denied all contentions. Defendant WellPet pointed out that arsenic and lead can occur naturally in fish-based ingredients, so it conducted 35 tests of those ingredients over two years, and represented that all of those tests yielded non-detectable levels of arsenic and lead. Defendant WellPet contended that plaintiffs could not show that the amounts of arsenic and lead in the Wellness products were a health risk to dogs. Defendant WellPet claimed that there was not, as a matter of law, anything misleading about its packaging. Defendant WellPet asserted that its products did not claim to be free from any heavy metals. Defendant WellPet argued that there was no evidence that plaintiffs relied on the Wellness statements or omissions.

Result

The case settled. The agreement includes the implementation of a robust product testing protocol for at least four years; a commitment to provide information about heavy metal in pet food; and a guarantee that no products with certain heavy metal levels will enter the pet food supply. The settlement also included $2 million in attorneys' fees as well as $545,000 in costs.