July 13, 2012 at 2:22 PM ET
Dog owners in eight states who believe contaminated chicken jerky treats from China sickened or killed their pets are banding together in a class-action lawsuit against Nestle Purina, the maker of two popular brands of the canine snacks, and several mega-stores that sell them.
They are suing just as Food and Drug Administration officials have refused to release results of inspections of Chinese plants that make the jerky treats blamed for at least 1,000 illnesses and deaths in U.S. pets.
“I don’t have any new information,” FDA spokeswoman Tamara Ward said in an email to msnbc.com.
The inspections were expected to shed some light into what toxins may have caused pet problems ranging from nausea and vomiting to kidney failure. Despite repeated tests, the FDA has identified no problems with Chinese-made chicken jerky treats.
In a letter dated July 5, FDA officials denied entirely an msnbc.com public records request for results of the February inspections of treat plants, saying release would violate rules protecting trade secrets and confidential commercial information and that it could also interfere with enforcement proceedings. Msnbc.com is now NBCNews.com.
The lawsuit filed in federal court expands an April complaint by Dennis Adkins, 57, of Orland Park, Ill., who said his 9-year-old Pomeranian, Cleo, died in March after eating Waggin’ Train “Yam Good” dog treats produced by Nestle Purina Pet Care Co.
It adds six pet owners in states from coast to coast who are suing not only the treat maker, but also Wal-Mart, Target and Costco, three big retailers that sell the products.
And it seeks to join with a lawsuit filed in federal court last month by a Connecticut family who believe their two Boston terriers, Max and Toby, died after eating chicken jerky treats they didn’t realize were suspect.
“Toby was falling over and crying out in pain and we would give him another treat because we thought we were doing something nice for him because he was hurting,” said Philip Mawaka, 69, a Hartford, Conn., pastor whose wife, Elizabeth, is named as the plaintiff.
Lawyers for Nestle Purina and the three store chains said they couldn’t comment on the specifics of the suits because the litigation is pending.
“We believe the claims made in the suit to be without merit and we intend to vigorously defend ourselves,” said Keith Schopp, a spokesman for Nestle Purina and Waggin’ Train. “We can say that Waggin’ Train products continue to be safe to feed as directed.”
Three top brands of chicken jerky treats were among those most recently cited by pet owners and veterinarians in complaints of harm, FDA records obtained by msnbc.com showed. They included Waggin’ Train and Canyon Creek Ranch, brands produced by Nestle Purina, and Milo’s Kitchen Home-style Dog Treats, produced by the Del Monte Corp.
Import data compiled by the firm ImportGenius showed that Waggin' Train and Canyon Creek Ranch treats are produced and supplied by JOC Great Wall Corp. Ltd. of Nanjing, China.
The expanded lawsuit claims to represent nearly all pet owners in the U.S. who bought any dog treat product made or sold by Nestle Purina containing chicken imported from China in the past four years, court records show.
The dog owners say they’re frustrated that the makers and distributors of the treats have failed to recall the products voluntarily, despite three federal warnings since 2007 about possible safety issues and nearly 1,000 reports to the FDA of dogs sickened or killed by the products.
They also say the companies have violated implied warranties of safety and healthfulness of their products and commerce rules governing sale of sound merchandise.
"Just because they haven't found something doesn't mean it isn't there," said Barbara Pierpont, 47, of Stewartstown, Pa. Her 7-year-old rescue dog, Honey, died of kidney failure in April, three weeks after Pierpont started giving her Waggin' Train jerky tenders bought at Sam's Club, a subsidiary of Wal-Mart. The treats were the only change in Honey's diet, she said.
In addition to Pierpont, the suit includes other pet owners from California to New Jersey:
Those owners are among thousands calling for the recall of the chicken jerky treats and for more vigorous FDA efforts to identify the source of the problem.
“It has been way too quiet,” said Robin Pierre, 50, of Pine Bush, N.Y., who contends that Waggin’ Train jerky treats killed her previously healthy 2-year-old pub, Bella, last fall. “They [FDA officials] are not responding to anything at this point. No emails, no phone calls. Everyday there are more and more victims added to our list.”
More than 15,000 people have signed Pierre’s petition calling for the treats to be removed from the market.
Many pet owners say they're reminded of the 2007 scare in which melamine-tainted pet food from China sickened and killed thousands of dogs in the U.S., leading to mass recalls and criminal indictments of Chinese and American pet food executives. The problem was not detected immediately then, either, said Bruce Newman, the Connecticut lawyer representing Mawaka. He represented dozens of pet owners whose animals were sickened then.
The FDA has tested for melamine and melamine analogs, along with other chemical and microbiological toxins, but found no evidence of harmful levels, said Ward, the FDA spokeswoman. The treat makers could recall the products voluntarily, but in the absence of an identified toxin, FDA officials say the agency can't force a recall.
The FDA remains aware of and concerned about the problem, Ward said. Officials are developing new methods for testing for compounds in the jerky treats that could cause illness. It could take months to develop and validate the tests, she said.
The agency also has formed an internal task force to study jerky treats that includes players such as Costco’s Craig Wilson, vice president of quality assurance and safety.
“FDA is working and discussing with industry and retailers how we can mutually collaborate and share data, scientific exchanges, etc,” Ward wrote in an email. “We are committed to solving the problem and Costco is one of several parties interested in determining the root cause of the illnesses.”
Costco tests the jerky treats regularly at every step of production and distribution, Wilson told msnbc.com. So far, the retailer has detected nothing that could explain the reports of illness in dogs. He said FDA officials and Costco representatives will travel later this fall to the Chinese plants that make the Costco treats.
“Our testing program is very solid,” he told msnbc.com. “We actually test these at a higher level than some human food.”
Wilson declined to comment on the lawsuit, but he said he believes government animal health experts are working hard to find the source of the problem.
“The FDA is really on this,” he said. “I applaud their efforts.”
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