ST. LOUIS, Missouri; WILTON, Connecticut; RANCHO SANTA FE, California––Poultry byproducts are typically rendered into dog food at about 140 degrees Celsius, 284 degrees Fahrenheit.
A year after Purina sued Blue Buffalo over alleged false advertising, Blue Buffalo and Blue Buffalo ingredients supplier Wilbur-Ellis appear to be feeling the heat, and the Helen Woodward Animal Center’s Home 4 the Holidays pet adoption program, now called the “Blue Buffalo Home 4 the Holidays” program, may be close enough to get singed.
Representing Blue Buffalo before Judge Rodney W. Sippel in the U.S. District Court for the Eastern District of Missouri, attorney Steven A. Zalesin on May 6, 2015 admitted the central allegation in the Purina case, that Blue Buffalo dog food has long contained poultry byproducts, contrary to advertised claims that it does not.
At the same time, Blue Buffalo charged that the fault lies entirely with Wilbur-Ellis.
Said Zalesin, according to the court record, “Blue Buffalo has determined that it is going to bring third-party claims in this proceeding against Wilbur-Ellis, which 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.
“The week before last, the end of the week of last week of April,” Zalesin testified, “we got a significant new production of material and information from Wilbur-Ellis in response to third-party subpoenas and discovery requests that both Blue Buffalo and Nestle had served on Wilbur-Ellis. [We] were able to determine for the first time that the [alleged] Wilbur-Ellis mislabeling scheme did, in fact, impact a significant proportion of Blue Buffalo’s dry pet food products that were manufactured from material that was shipped to our co-packers prior to May of 2014.
“This latest production from Wilbur-Ellis provides an important puzzle piece that had been missing until now,” Zalesin continued, “which is: what proportion of the shipments to our co-packers, in fact, were impacted by the mislabeling? And we now know from their most recent spreadsheets and documents that the answer appears to be a very substantial proportion. So we intend now to take prompt action against Wilbur-Ellis.”
Specifically, Zalesin said, “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.”
Purina, long the leading pet food industry sponsor of animal shelter aid programs, on May 6, 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.’ Testing conducted by an independent laboratory revealed that several of Blue Buffalo’s top-selling ‘Life Protection’ pet food products actually contain substantial amounts of poultry by-product meal.
“Independent testing also shows that Blue Buffalo “LifeSource Bits” contain poultry by-product meal and corn,” Purina charged. “In addition, several Blue Buffalo products promoted as ‘grain-free’ actually contain rice hulls.”
Blue Buffalo responds
Said Blue Buffalo in a web posting addressed to customers, three days after Zalesin’s testimony, “In October of last year, we informed you that a supplier of ingredients to us and many other well-known brands of pet foods had sent chicken meal to some of their customers that contained poultry by-product meal. We said at the time that, as a result, some of our food could include this mislabeled ingredient, that we had stopped buying ingredients from this facility and that we had reached out to the Food & Drug Administration.
“Just recently,” Blue Buffalo continued, “this former supplier made additional disclosures in legal proceedings that showed that a substantial proportion of its shipments to our contract manufacturing facilities prior to May 2014 were, in fact, mislabeled.
“In view of this new information,” Blue Buffalo said, “we informed the court of our conclusion that a material amount of our dry foods manufactured with mislabeled ingredients shipped prior to May 2014 had been impacted, and requested permission to bring a claim against this former supplier and others involved for intentionally mislabeling ingredients and unjustly enriching themselves. The Court immediately granted our request.”
Purina doesn’t buy it
Responded Nestlé Purina Petcare spokesperson Keith Schopp, “Despite this admission, Blue Buffalo still has not informed consumers of the presence of poultry by-product meal in Blue Buffalo pet food, refuses to accept responsibility for the product it sold, and is instead blaming its suppliers.
“Only when faced with undeniable evidence,” Schopp said, “has Blue Buffalo admitted the truth to the court: a ‘substantial’ and ‘material’ portion of Blue Buffalo pet food sold over the past several years contained poultry byproduct meal. It is unclear to us if or when this practice stopped, or whether any Blue Buffalo pet food containing byproduct meal is still on store shelves.”
This matters, Schopp explained, because “Through a $50 million annual advertising campaign that flooded airwaves and pet food aisles alike, Blue Buffalo told consumers over and over, emphatically and without qualification, that its products never contain poultry byproduct meal. Blue Buffalo also attacked ‘big name pet food companies,’ insinuating that they were somehow misleading consumers. Consumers paid a hefty premium for Blue Buffalo products based on these claims. Yet none of these claims were true.
“Blue Buffalo now claims it had no way of knowing the bags contained byproduct meal,” Schopp finished. “A manufacturer is responsible for knowing what’s in its product, and a simple audit of its supply chain would have revealed what we discovered after reviewing the documentation.”
Class action lawsuits
Observed www.poisonedpets.com blogger Mollie Morrissette, “Nestlé Purina PetCare Company aren’t the only people suing Blue Buffalo. Now consumers have jumped on the litigation bandwagon and Blue Buffalo is getting slammed by a multitude of lawsuits alleging deceptive advertising practices. Because of the number of class action lawsuits involved, the U.S. Judicial Panel on Multi-District Litigation has agreed to consolidate seven false advertising class action lawsuits filed against Blue Buffalo,” meaning that “several related lawsuits making the same allegations will be heard together.”
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.
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.
What’s in a word?
But, Watson concluded, “Pet food manufacturers realize that pet owners do not like the word ‘by-product’ on an ingredient list. Some manufacturers are currently lobbying AAFCO to remove the word ‘by’ from ‘poultry byproduct meal’…Proponents of the change point out that there is no such thing as lamb byproduct meal, fish byproduct meal, or meat by-product meal, and yet lamb meal, fish meal, and meat meal all contain byproducts of the human food industry.”
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,” Purina recalled in a May 2014 media release.
Before that, the Purina release summarized, the National Advertising Division of the Council of Better Business Bureaus “found Blue Buffalo’s advertising deceptive in a 2008 decision that recommended its superiority claims be modified and its ‘NO Animal By-Products’ claims be discontinued 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.
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, while the Banfield veterinary hospital chain put the possible toll 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 told MSNBC. Melamine, a coal by-product, is commonly used to manufacture hard plastics. Because it 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.
Tainted wheat gluten, also used in several brands of pet food, was earlier traced to a different supplier, Xuzhou Anying Biologic Technology Development Company, of Shanghai.
Home 4 the Holidays
Meanwhile, amid the legal actions, Helen Woodward Animal Center president Mike Arms announced that “Blue Buffalo will again partner with us for the 2015-2016 Home 4 the Holidays campaign.”
Home 4 the Holidays, an October-through-December shelter animal adoption program directed by the Helen Woodward Animal Center in Rancho Santa Fe, California, was for 13 years sponsored by Iams. Blue Buffalo took over for 2013. Total adoptions under the program slipped from a record 1.3 million worldwide to just under 1.1 million, but recovered to 1.3 million in 2014.
The Blue Buffalo name was prominently used in January 2015 with announcements that Home 4 the Holidays adoptions since the program started had cumulatively reached 10 million.
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.
(See also: http://www.animals24-7.org/2014/05/14/purina-vs-blue-buffalo-food-fight-catches-animal-shelters-in-the-middle/ and http://www.animals24-7.org/2014/11/07/losing-in-aurora-pit-bull-advocates-set-their-dogs-on-us-blue-buffalo-home-4-the-holidays/.)