Poisoned Petfood, Pet Valuation, and Global Food Safety

The following is an article written and published by Dr Ian Robertson which highlights problems associated with the recent contamination of petfood products:

POISONED PET FOOD RAISES QUESTIONS ON HOW THE LAW VALUES PETS, AND HIGHLIGHTS GLOBAL FOOD SAFETY ISSUES.

In the United States, sales of dog and cat food reached over $14.3 billion in 2005, according to the Pet Food Institute that represents manufacturers of commercial pet food.

In mid March, concerns that pet food had been contaminated and was leading to kidney failure in pets, prompted a continent-wide recall, which started with Canada�s Menu Foods, and quickly extended to the United States. Menu Foods recalled 60 million containers of its "cuts and gravy" style wet pet foods, sold under nearly 100 store labels and major brands across North America. The resulting recall list includes certain products brand names that will be recognized by many New Zealand pet owners, such as Hills, Nestle Purina, Science Diet, Iams and Eukanuba. A complete list of pet food products recalled can be found at www.menufoods.com and www.fda.gov.

A director of the Center for Veterinary Medicine at the U.S. Food and Drug Administration (FDA), said at a news conference recently that the agency had found unusually high concentrations of melamine in some batches of wheat gluten. Melamine is a chemical used to make plastics, and concerns have been expressed that it was mixed into the wheat gluten in China as a way to bolster the protein content. Concerns have also been expressed that the wheat gluten also contained aminopterin, a chemical used in rat poison, although FDA tests have so far failed to confirm its presence.

It is not clear how many pets may have been poisoned by the apparently contaminated food. It is alleged that the tainted pet food has killed at least 16 cats and dogs in North America. The FDA has received more than 8,000 complaints, and Canada�s Menu Foods has apparently fielded 300,000 calls from consumers.

THE LAW VALUES PETS ACCORDING TO �FAIR MARKET VALUE�

The events in America have captured the attention of pet-owners and animal health professionals globally.

If a pet-owner believes their pet has died because of contaminated pet-food, they may consider suing the pet-food company. This brings up the issue of how the law values animals.

The law in America, and most western law around the world, currently classifies animals - even beloved family pets � as personal property. If a similar situation of pet food poisoning were to occur in these countries, and a pet died as a result of ingesting contaminated food and the courts found the pet food producer liable, then the law�s usual starting point is to compensate the owner based only upon the �fair market value� of the animal, given that it is simply classed as property � little different to a car, or a chair. If the dog or cat has special uses or services (for example used for breeding, or specially trained) then the owner could possibly argue for higher compensation based on lost potential earnings. In general, however, there is no compensation for emotional damages.

That means that for the loss of a faithful family companion, even a successful lawsuit is unlikely to result in significant financial reward for the owners loss. Owners who believe they have incurred loss or damage, as in the USA case due to contaminated pet-food, and who want to pursue legal action against pet-food producers may consider joining forces in a class action suit rather than individually suing.

A �class action� is a legal term describing a lawsuit brought by one or more persons on behalf of a larger group. A class-action suit could still prove problematic in the alleged pet-food poisoning given that factual variations in the individual cases may vary considerably, and people would need to trace the harm done to the animal back to the food producer.

In spite of the hurdles however, it has been reported that in the USA there are more than 3,000 pet owners planning lawsuits to seek compensation for the loss of their animals, which include claims for punitive damages for emotional distress. The federal court of the USA is currently deciding where the class action cases will be heard. This decision is significant to the potential outcome because only certain states in the USA allow claims for emotional damages.

In New Zealand, claims for emotional damages are not yet an established head of claim, consequently any similar case here would restrict owners to compensation based on market value, potentially influenced by any special services or uses of the animal. The laws approach that that a pets worth is limited to market value is a concept that is being widely challenged.

GLOBAL FOOD SAFETY ISSUES

It has been reported that Xuzhou Anying Biologic Technology Development Co., a small agricultural products business in China, is the source of the tainted wheat gluten that was shipped to the United States for use in pet food by a major pet food supplier. The owner of Xuzhou Anying Biologic Technology Development Co denies any link.

Although some scientists question whether melamine is toxic enough to kill pets, the chemical is not approved for use in human or pet food in the United States, and the FDA says it may have led to kidney failure in some pets. If it is shown that the melamine was intentionally blended into the wheat gluten in order to bolster the protein content, such a finding could negatively impact agricultural trade between the U.S. and China.

China is viewed by many as a country with poor animal welfare standards and equally poor food-safety regulations. In response to the pet-food poisoning incident American regulators have banned all wheat gluten importation from China, and Chinese regulators say they are now carrying out a nationwide inspection of wheat gluten supplies - although to date it appears that there has been no recall in China of wheat gluten made by the Xuzhou Anying Biologic Technology Development Co.

This case illustrates some of the challenges, and risks, that come with increasing globalization of trade. In particular, this case raises concerns for a global marketplace where China is becoming an increasingly larger worldwide supplier of agricultural products.

Some countries specifically regulate pet food. In the U.S.A, for example, the Food and Drug Administration has this responsibility. Similarly, there are agencies in New Zealand, the United Kingdom and European Union who are responsible for overseeing pet food production and quality. China reputedly has lax food-safety regulations, and it does not have equivalent contemporary animal welfare legislation of countries like England, Scotland and New Zealand. It has been reported that Chinese food producers have dyed meats to make them look fresher, and sold fake milk powder for babies.

With reports and risks of BSE and Bird Flu still fresh in many minds, the concern now, of course, is that if contamination can occur in spite of all the regulations and expertise overseeing the food chain to pets, when might a similar thing occur in the food chain supplying humans?

Dr Robertson, a barrister specializing in animal law, who is also a veterinarian, recently delivered a presentation at a conference held at Harvard Law School, recommending the development of a global animal welfare legislative model based on �best practice� rather than the minimum standards approach of contemporary animal welfare legislation. According to Dr Robertson, practices based on best practice would minimize avoidable risks to animals and humans alike in terms of food safety and overall health.

As if to highlight the risks to humans, as well as animals, from inconsistent and inferior standards, its noteworthy that the Chinese government also recently reported that an elderly woman died and 202 people were sickened at a hospital after a breakfast cereal they�d consumed turned out to be contaminated with - rat poison.

The contamination of pet-food resulting in the death of pets is tragic. It also highlights other issues. First, while nothing can bring back a being who has died, compensation, often financial, is the laws method of holding accountable parties to account � but many voices are now querying the laws valuation of a pet based on mere �market value�. Secondly, countries do not all have the same animal welfare standards or food regulations; and issues of food labeling (including identification of the country of origin) and food safety are inextricably linked. Cheap food, cheap food ingredients, inconsistent legislation, and inferior standards come with unnecessary risks to humans, animals, industry and economies. While some may claim that the losses are statistically acceptable, the question remains, who wants to be the next(avoidable) statistic?

Article added: 02/2008