Holly B. Vanzant and Dana Land, on behalf of themselves and all others similarly situated, Plaintiffs-Appellants,
Hill's Pet Nutrition, Inc., and PetSmart, Inc., Defendants-Appellees.
September 27, 2018
from the United States District Court for the Northern
District of Illinois, Eastern Division. No. 17-cv-2535 -
Samuel Der-Yeghiayan, Judge.
Flaum, Manion, and Sykes, Circuit Judges.
Vanzant and Dana Land own cats with health problems. Their
veterinarians prescribed cat food manufactured by Hill's
Pet Nutrition, Inc., and sold under Hill's
"Prescription Diet" brand. For several years
Vanzant and Land purchased this higher-priced cat food from
their local PetSmart stores using their veterinarian's
prescriptions. They eventually learned, however, that the
Prescription Diet cat food is not materially different from
nonprescription cat food. And the prescription requirement is
illusory; no prescription is necessary. Feeling deceived,
Vanzant and Land filed a class-action lawsuit against
Hill's and PetSmart, Inc., asserting claims under the
Illinois Consumer Fraud and Deceptive Business Practices Act,
815 III. Comp. Stat. 505/1 et seq., and for unjust
district judge dismissed the Consumer Fraud Act claim for two
reasons: (1) the complaint lacked the specificity required
for a fraud claim; and (2) the claim is barred by a statutory
safe harbor for conduct specifically authorized by a
regulatory body-here, the U.S. Food and Drug Administration
("FDA"). The judge dismissed the unjust-enrichment
claim because it was premised on the same conduct as the
reverse. First, the safe-harbor provision does not apply.
Under the Food, Drug, and Cosmetic Act, 21 U.S.C.
§§ 301 et seq., pet food intended to treat
or prevent disease and marketed as such is considered a drug
and requires approval of a new animal drug application.
Without FDA approval, the manufacturer may not sell it in
interstate commerce and the product is deemed adulterated and
misbranded. The FDA issued guidance recognizing that most
pet-food products in this category do not have the required
approval; the guidance states that the agency is less likely
to initiate an enforcement action if consumers purchase the
food through or under the direction of a veterinarian (among
other factors guiding the agency's enforcement
discretion). But the guidance does not specifically
authorize the conduct alleged here, so the safe
harbor does not apply.
plaintiffs pleaded the fraud claim with the particularity
required by Rule 9(b) of the Federal Rules of Civil
Procedure. So the statutory claim may proceed. The
unjust-enrichment claim is more appropriately construed as a
request for relief in the form of restitution based on the
alleged fraud. In Illinois unjust enrichment is not a
separate cause of action but is a condition brought about by
fraud or other unlawful conduct. Toulon v. Cont'l
Cas. Co., 877 F.3d 725, 741 (7th Cir. 2017). The request
for restitution based on unjust enrichment therefore rests
entirely on the consumer-fraud claim, and it too may move
case comes to us from a dismissal at the pleadings stage, so
we recount the facts as alleged in the amended complaint.
Hill's Pet Nutrition manufactures a variety of pet food,
and this case concerns its Prescription Diet brand.
Hill's sells its Prescription Diet pet food through
veterinarians and pet-food retailers, though consumers may
purchase it from a retailer only with a veterinarian's
prescription. PetSmart sells pet supplies and pet food,
including Hill's Prescription Diet brand. Consumers need
a veterinarian's prescription to purchase Hill's
Prescription Diet food at PetSmart.
January 2013 Holly Vanzant's cat Tarik underwent
emergency surgery for bladder stones. At a follow-up
appointment, Tarik's veterinarian prescribed Hill's
Prescription Diet c/d Multicare Feline Bladder Health cat
food. That same day Vanzant purchased the food at a PetSmart
store. Inside she saw marketing materials indicating that the
cat food is "prescription only/' and the label on
the bag read "Hill's Prescription Diet."
PetSmart provided her with a pet prescription card listing
Tarik's name, prescription number, and prescription date.
For three years Vanzant purchased Hill's Prescription
Diet cat food from PetSmart, paying a higher price than for
nonprescription food. She showed the prescription card to the
cashier each time.
had a similar experience. In October 2013 a veterinarian
diagnosed her cat Chief with diabetes and prescribed
Hill's Prescription Diet m/d Feline Glucose/Weight
Management cat food. Within a few weeks, Land purchased
Hill's Prescription Diet cat food at a PetSmart store.
She too saw marketing materials inside the store indicating
that the food is meant to treat or control diabetes. PetSmart
provided Land with a pet prescription card listing
Chief's name, prescription number, and prescription date.
For two years Land purchased Hill's Prescription Diet cat
food from PetSmart, paying a higher price than for
nonprescription food. She too showed the prescription card
and Land eventually learned they were not receiving what they
expected. They thought prescription pet food was medically
necessary for the health of their pets, had been approved by
the FDA, and could not be sold legally without a
prescription. But the FDA had not approved it, and nothing
required that it be sold with a prescription. They filed a
proposed class action in state court against Hill's and
PetSmart alleging claims for violation of the Illinois
Consumer Fraud Act and unjust enrichment. The defendants
removed the case to federal court and moved to dismiss it
under Rule 12(b)(6).
judge granted the motion. He held that the Consumer Fraud Act
claim is foreclosed by the statute's safe-harbor
provision, which shields actions authorized by laws
administered by a regulatory body. Specifically the judge
relied on an FDA Compliance Policy Guide, which he construed
as regulatory authorization for "the gate-keeping role
of veterinarians in ensuring that pet owners purchase only
appropriate therapeutic foods." The judge also concluded
that Vanzant and Land failed to plead the consumer-fraud
claim with the particularity required by ...