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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
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Contributed by Dr Ian Robertson LLB, MRCVS, BVSc.
Ian is a barrister
specialising in the area of animals and the law, who has
taught the subject of Animal Law at the University of
Canterbury Law School in New Zealand, and at the
University of Leeds Law School in England. He is also a
qualified veterinarian. He is the founder of the
www.animal-law.biz
website, and runs a consultancy providing advice on
animal legal issues, in addition to his activities as a
public speaker and law lecturer. |
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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 New
Zealand, like 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 New Zealand, 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
a pet 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 labelling
(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 (avoidable) statistic?
