Party Animal Inc. sues Evanger’s because of drug in dog food

Party Animal Inc. has filed suit in federal court against Evanger’s Dog and Cat Food Co. Inc. because dog food Evanger’s produced for Party Animal was found to be contaminated with the animal euthanasia drug pentobarbital.

The Food and Drug Administration confirmed the presence of the drug during testing after a consumer complaint. Two varieties of Party Animal’s Cocolicious dog food tested positive for the drug, which was found earlier this year in Evanger’s branded dog food after several dogs became ill. One of those dogs died despite emergency medical care.

On April 24, Party Animal recalled 13-ounce cans of “Cocolicious Beef & Turkey” dog food, lot 0136E15204 04 with a best-by date of July 2019, and “Cocolicious Chicken & Beef” dog food, lot 0134E15 237 13 with a best-by date of August 2019, after learning about the potential contamination from a customer.

The 13-page suit, filed May 5 in U.S. District Court for the Central District of California, lists eight complaints and claims damages in excess of $20 million. Also named as a defendant in the case is Evanger’s sister company, and Nutripack LLC.

The complaint outlines several counts, including:

  • Breach of written contract;
  • Breach of oral contract;
  • Breach of implied covenant of good faith and fair dealing;
  • Fraud;
  • Negligent misrepresentation;
  • Breach of implied warranty;
  • Breach of express warranties; and
  • Implied indemnity.

In February, Evanger’s recalled certain production lots of Evanger’s brand “Hunk of Beef” and Against the Grain brand “Pulled Beef” canned dog foods after pentobarbital was found in samples of both products. Evanger’s expanded the recall in March 2017 to include all products manufactured using meat from a single supplier during a specific time period.

In its own $20 million lawsuit, filed in Cook County, IL, on April 25, Evanger’s named Bailey Farms LLC as the supplier of meat used in the recalled dog foods, accusing the meat company of breach of contract, breach of implied warranties and fraud.

Party Animal’s fraud complaint against Evanger’s is based on the manufacturer’s claim of USDA organic certification for the two recalled products.

Bailey Farms LLC is not listed as a certified organic operation in the USDA Organic Integrity Database. Therefore, meat supplied by Bailey Farms would not qualify for the USDA’s organic certification.

According to the database maintained by the U.S. Department of Agriculture, Evanger’s received certified organic status for certain of its products in 2010. “Cocolicious Beef & Turkey,” and “Cocolicious Chicken & Beef” canned dog foods were added to the USDA organic database effective Aug. 14, 2015.

This article first appeared on Food Safety News and is reposted here with permission

Evanger’s sues supplier; says beef included tainted horse meat

Evanger’s Dog & Cat Food Company Inc. is suing Bailey Farms LLC, claiming that the meat supplier was at fault for a euthanasia drug found in Hunk of Beef and Against the Grain dog foods made by Evanger’s.

The suit, filed in the Circuit Court of Cook County in Illinois on April 25, names Bailey Farms LLC as the sole supplier of meat for Evanger’s Hunk of Beef canned dog food. Holly and Joel Sher, owners of the Wheeling, IL, Evanger’s want $20 million in punitive damages from Bailey Farms, which is based in Marshall, WI.

Beef supplied by Bailey Farms contained horse meat, according to Evanger’s lawsuit. The company further claims the horse meat was the source of the pentobarbital contamination that sickened several dogs earlier this year, killing at least one.

Evanger’s is seeking unspecified damages, to be proven at trial, recovery of attorney’s fees and costs, and punitive damages of $20 million.

The lawsuit alleges that Evanger’s ordered more than 21 tons of “Hand Deboned Beef” from Bailey Farms in November 2015, and an additional 21 tons of “Inedible Hand Deboned Beef” in late May 2016.

“Inedible” beef is unfit for human consumption according to federal law; however, if not contaminated or adulterated, it may be used in the manufacture of pet food.

As recently as Feb. 9, Evanger’s claimed to use “human-grade USDA inspected meats” in its products. The company updated its website shortly thereafter, dropping the reference to “human-grade” from the description.

The November shipment was used to manufacture Against the Grain Hand Pulled Beef, and the May 2016 order was used in the production of approximately 50,000 cans of Hunk of Beef.

On Feb. 3, Evanger’s recalled five production lots of Hunk of Beef canned dog food after the Food and Drug Administration found pentobarbital, a euthanasia agent, in a sample of the food. Pentobarbital is a barbiturate that is used by veterinarians and animal shelters to euthanize animals.

On Feb. 14, Evanger’s recalled a single production lot of Against the Grain Hand Pulled Beef canned dog food after FDA detected pentobarbital in a sample of the product.

On March 3, 2017, Evanger’s recalled all “chunk beef” products manufactured between December 2015 and January 2017, due to the possible presence of pentobarbital in these products. All of the recalled products contained meat from a single supplier, according to the company.

This story first appeared in Food Safety News and is reposted here with permission.

Editorial comment: This is a fine example of the pot calling the kettle black. As recently as February 9, 2017, Evanger’s was proclaiming its use of “human-grade USDA inspected meats.” The suit filed last week reveals that the company placed an order with Bailey Farms for ‘inedible’ beef.

Evanger’s Blames Supplier, FDA, for Pentobarbital in Dog Food

FDA says beef suppliers are not registered; Evanger’s hints at expanded recall

lh-600dpi-with-ice-no-color-restBreaking news: Evanger’s reveals presence of horse DNA in its Hunk of Beef dog food in a Wednesday letter to its customers. The company will recall all of its Hunk of Beef, Braised Beef Chunks with Gravy and Against the Grain Pulled Beef. The formal recall announcement will be issued this week.

Consumer complaints continue as the FDA digs deeper into operations at Evanger’s pet food after discovering evidence that none of the company’s meat suppliers are registered with USDA. Evanger’s owners blamed their suppliers and the FDA in the wake of findings that their dog food contains a barbiturate used to euthanize animals.

At least one dog has died and at least four others required medical attention after eating Hunk of Beef canned dog food from Evanger’s Dog & Cat Food Company Inc., which is owned by the Sher family. Evanger’s and Nutripack LLC, another pet food company owned by members of the same family, have recalled certain lots of certain flavors of their canned dog food.

“The guilty party has turned out to be one of our most trusted meat suppliers. A USDA-APHIS inspected supplier who we had done business with for over 40 years, and whose plant we had visited numerous times over the years,” said Evanger’s owners Holly and Joel Sher in an online statement posted Sunday. “We have taken it upon ourselves to lead the campaign to force the FDA to put an end to allowing drugs like pentobarbital to enter the raw material stream and contaminate our pets’ food and endanger their lives.”

Officials with the Food and Drug Administration do not agree with the company’s contention that the agency is responsible for the pet food being contaminated.

“The detection of pentobarbital in pet food renders the product adulterated in violation of the Federal Food, Drug, and Cosmetic Act. Therefore, it is not acceptable to use animals euthanized with a chemical substance in pet or animal foods,” an FDA spokesperson said Tuesday.

“It is the responsibility of the animal protein ingredient suppliers to implement practices at their facilities to ensure that euthanized animals are either not accepted at the facility, or to determine how they died and ensure euthanized animals are segregated from animal protein going for animal food use.

“Further, it is the responsibility of the pet food manufacturer to ensure that the food they produce is safe for consumption and properly labeled. One way that a manufacturer can do this is by taking steps to verify the identity and safety of the ingredients they receive from their suppliers.”

During the course of their investigation, FDA inspectors discovered a bill of lading from Evanger’s supplier, which listed “Inedible Hand Deboned Beef – For Pet Food Use Only. Not Fit For Human Consumption.”

While FDA cannot reveal the identity of the supplier, an agency spokesperson described it as one that, “…provides materials from animals that are not fit for the human food supply, for a variety of reasons.”

Evanger’s sources the meat for its pet food from more than one supplier. According to the FDA spokesperson, the agency’s “… preliminary assessment indicates that none of these suppliers are USDA-FSIS registered facilities.”

Those findings are in direct contrast to statements from Evanger’s and Nutripack LLC about their pet foods, which they say are made with human-grade food. FDA inspectors also found incomplete information on Evanger’s brand and Nutripack’s Against the Grain brand production records.

According to FDA, inspectors were unable to determine from company records whether any of the beef that was used in the recalled Evanger’s and Against the Grain production lots was also used in any other products. In a letter to its customers released Feb. 21, Evanger’s indicated the recall could be expanded to include all products containing chunk beef, “out of an abundance of caution.”

The investigation so far

In a Friday consumer advisory, the FDA cautioned the public not to feed the recalled Evanger’s and Against the Grain canned dog food products to their pets. The products in question were recalled on Feb. 3 and Feb. 9 by Evanger’s Dog & Cat Food Company Inc. and Against the Grain, respectively, after pentobarbital was confirmed in samples of both products.

In conjunction with the advisory, FDA released two Inspectional Observation reports — Form 483 reports — which detailed the conditions found by the agency’s inspectors during visits to Evanger’s production facility in Wheeling, IL, and to the facility belonging to Nutripack LLC in Markham, IL.

The Wheeling operation had last been inspected by FDA in November 2012. According to a spokesperson with FDA, the Illinois Department of Agriculture performed an inspection in 2016 and classified the Wheeling facility as ‘No Action Indicated.’ However, the plant was not operating at the time, and the inspector was unable to observe the normal day-to-day activities. Nutripack had not been inspected either by the state or by the FDA prior to February 2017.

The USDA’s Food Safety and Inspection Service (FSIS) is the federal agency tasked with oversight and inspection of slaughterhouses and meat processing operations. To be deemed “Fit for Human Consumption,” any meat that enters interstate commerce must have been produced under USDA-FSIS supervision. Slaughterhouses and meat processing operations that do not engage in interstate commerce come under the supervision of the department of agriculture in their home state.

Evanger’s is a private company, incorporated in Illinois. Its President and Agent of Record is Holly Sher, who owns the business together with her husband, Joel Sher.

Against the Grain
Against the Grain

Nutripack is a Limited Liability Company registered in Illinois. Its Agent of Record is Brett Sher, son of Joel and Holly Sher. Nutripack is managed by Sher Services Company Inc. Joel A. Sher is both the agent of record and the president of Sher Services, while Holly Sher is the secretary. The Against the Grain trademark is registered to Chelsea Sher, daughter of Joel and Holly Sher. Chelsea Sher also is listed as Secretary of Evanger’s.

In their online letter Sunday, the Sher family’s reference to their supplier having been “USDA-APHIS inspected” suggests they may not understand what agencies have jurisdiction over their pet food operations.

According to the USDA website the primary role of APHIS (Animal and Plant Health Inspection Service) in the U.S. food safety network of agencies “is to protect against plant and animal pests and diseases. APHIS also administers the Animal Welfare Act and carries out wildlife damage management activities.”

On the other hand, according to USDA, the FSIS is “responsible for ensuring the safety and wholesomeness of meat, poultry, and processed egg products and ensures that it is accurately labeled.”

As its investigation continues, FDA reports it has received additional complaints from consumers who fed Evanger’s Hunk of Beef to their dogs, in some cases exclusively.

As consumers tend to throw out or recycle empty cans, obtaining specific lot number information has been difficult. The agency continues to encourage consumers to report problems with Evanger’s products through the Safety Reporting Portal or by contacting a Consumer Complaint Coordinator. Additional information is available on the FDA web page, How to Report a Pet Food Complaint.

This story first appeared on Food Safety News and is reposted here with permission.