Specifically, plaintiff Rosmarie Schirripa states in the complaint that recently done tests of JM Smucker Co’s subsidiary Big Heart Pet Brands Inc., dog food, shows that the food contains pentobarbital, a substance used to euthanize animals. Pentobarbital was found in samples Big Heart's Kibbles 'n Bits canned dog food.
"Pentobarbital is a Class II controlled substance and there is no safe or set level for pentobarbital in pet food. If it is present, the food is adulterated," the complaint states.
Schirripa alleges in her complaint that she heard about the tests while listening to Washington, D.C.-based television station WJLA, which aired a report on February 8, claiming that tests at two laboratories had found pentobarbital in multiple varieties of Kibbles 'n Bits canned dog food.
Pentobarbital is routinely used to euthanize animals, both domestic pets and livestock, and survives the rendering process, Schirripa states in the proposed class action.
The complaint asserts that the package labeling fails to mention the contamination and that Big Heart has put out statements claiming to have "strict" safety and quality control procedures, and that its food will be "pure, wholesome and safe for pets."
"Defendants' material omissions are false, misleading, and reasonably likely to deceive the public. This is true especially in light of the long-standing campaign by defendants to market all their products, including the contaminated dog food and 'providing safe, healthy and high-quality food' with the as healthy and safe with the 'purest ingredients,'" the lawsuit states.
In a voluntary recall of the products named in the complaint, Big Heart states the amount of drug found did not pose a danger to pets, Schirripa alleges. However, the defendant said the contamination had been traced back to cow, pig and chicken fat from a particular supplier, which it said it would not name due to potential litigation, and that it would now test its products for the drug and "enhance" its supplier oversight.
Schirripa is seeking to bring claims both federally and in New York on behalf of any New York residents who purchased the food at issue between February 2012 and the present.
Schirripa is represented by Paul B. Maslo and Salvatore C. Badala of Napoli Shkolnik PLLCand Anne Andrews of Andrews & Thornton.
The case is Rosemarie Schirripa v. Big Heart Pet Brands Inc. et al., case number 1:18-cv-02345, in the U.S. District Court for the Southern District of New York.