Moore v. Mars Petcare US, Inc.

Background

Six California pet owners—Tamara Moore, Greta L. Ervin, Raff Arando, Nichols Smith, Renee Edgren, and Cynthia Welton—sued Mars Petcare U.S., Inc., Royal Canin U.S.A., Inc., and Hill’s Pet Nutrition, Inc. They alleged that the defendants’ requirement for a veterinarian’s signed prescription before purchasing prescription pet food misled consumers by suggesting that the food was approved, inspected, and tested by the Food and Drug Administration and had medicinal or disease-preventive qualities. They claimed that consumers overpaid and made purchases they otherwise would not have made.

The operative complaint asserted three California-law claims: violation of California’s Unfair Competition Law, False Advertising Law, and Consumer Legal Remedies Act. The defendants asserted affirmative defenses based on federal preemption and California’s safe-harbor doctrine. The plaintiffs sought partial summary judgment—a ruling resolving specific legal issues without resolving the entire case—on defenses based on the FDA’s Consumer Policy Guide (CPG).

One-Way Intervention Argument

The defendants argued that the motion was premature under the one-way intervention rule. That rule generally prevents a court from deciding the merits of a class action before the class is certified and notified, because potential class members could benefit from a favorable ruling without being bound by an unfavorable one.

The court held that the rule did not apply because the motion sought to clarify legal questions about the CPG and would not resolve the merits of the plaintiffs’ claims.

Federal Preemption

Federal preemption can prevent state-law requirements that conflict with federal law when the federal requirement has the force of law. The court held that the CPG was not a regulation and did not qualify as informal regulatory activity with preemptive effect. It therefore did not preempt the plaintiffs’ California claims.

Safe Harbor

A safe harbor can protect conduct that is specifically authorized by law or an applicable government rule. The court relied on a prior Ninth Circuit decision involving this case, which held that the CPG did not specifically authorize the defendants’ prescription requirement, prescription labeling, or related marketing representations. The CPG stated that the FDA was less likely to take enforcement action when listed factors were present, but it did not impose legally enforceable responsibilities and was not binding on the FDA or the public. The court therefore held that the CPG did not provide a safe-harbor defense.

Disposition

The court vacated the January 7, 2022 hearing and granted plaintiffs’ motion for partial summary judgment in both specified respects:

1. The motion was granted to the extent the Mars Defendants’ Eighth Defense and Hill’s Pet Nutrition’s Eighth Affirmative Defense asserted that the plaintiffs’ claims were preempted by the CPG. 2. The motion was granted to the extent Hill’s Pet Nutrition’s Ninth Affirmative Defense asserted that the plaintiffs’ claims were barred by a safe harbor provided by the CPG.

The court expressly made no determination about the need for further discovery or litigation concerning whether the defendants complied with various CPG provisions.