It Takes a Village to Provide Quality Food for Our Pets

• Publication year: 2022

It Takes a Village to Provide Quality Food for Our Pets

Diantha V. Ellis

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It Takes a Village¹ to Provide Quality Food for Our Pets

Diantha V. Ellis^*

I. Introduction

How much does your pet mean to you? In many American households, pets have risen from the status of possessions to the role of

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family members.² For many people, pets have even taken the place of children or are treated as one of the children.³ For those of us who have pets who we love as family, it is deeply concerning when reports are issued about the dangerous chemicals or toxic levels of vitamins in their food.⁴ Reading the recall reports on a food that our dog or cat has trustingly eaten every time we place it in front of them, can hit at the very core of our hearts, leaving us—the human caretakers—feeling vulnerable and attacked because we both love our pets and know that they depend upon us for survival.⁵ Thus, finding out that what we have fed them has in actuality poisoned them makes us feel as if we have both hurt someone we love as well as neglected our moral duty to keep those who are vulnerable and depend on us for survival safe from harm.⁶

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In the early months of 2007, the Menu Foods Recall⁷ —what would come to be known as one of the largest food recalls in history—highlighted on a national scale just how important pets had become to the American public. As the body count for beloved pets began to grow,⁸ concerned pet parents nationwide began raising awareness of the pet food production process.⁹ After the company issued a recall of the pet foods spanning numerous brands, both high-end pet foods and lower-priced pet foods, the United States Food and Drug Administration (FDA) began an investigation that eventually resulted in a Senate subcommittee inquiry into the mistakes of the 2007 Menu Foods Recall.¹⁰

In the years following the 2007 Menu Foods Recall, it has become increasingly clear through the continued recalls for pet foods that while the legislation and the reforms made as a result of the crisis were a step in the right direction, it was not enough to ensure that pet foods are not contaminated with toxins, chemicals, and pathogens.¹¹ From 2018 to 2021, numerous pet foods have been recalled due to the presence of contaminants—such as toxic levels of vitamin D,¹² and

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pentobarbital¹³ —with some recalls being issued for premium and even prescription brands of pet food.¹⁴

The continuing problems with the safety and quality of our pet foods indicates that the system of regulation as it is currently designed is not working as well as it could be.¹⁵ The system, while better than it was prior to 2007, is still largely based on self-reporting and it lacks uniformity and consistency across all states.¹⁶ Further, the FDA is historically underfunded and the budget it does have is stretched thin.¹⁷

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Thus, the FDA functions more as an organization that makes recommendations, with the federal system stepping in to react to a situation that has gotten out of control after a company has recalled a product following reported deaths and illnesses of thousands of pets.¹⁸

It is important to note that pre-market approval is not required for a pet food, unless the food falls under a "drug" classification.¹⁹ Further, the Federal Food, Drug, and Cosmetic Act²⁰ (FD&C Act) requires that the food be subject to pre-market approval only if the company makes a claim as to the ability of the food to help treat certain diseases or conditions.²¹ Otherwise, no further approval is needed to sell the product, and the FDA's job then becomes to simply inform consumers of a suspected quality issue in the production of the product being recalled.²²

However, when it comes to the safety of both the human and non-human animal food supply, we need a more streamlined approach to regulation that does not change from state-to-state, but instead has a steady continuity that encourages companies to properly ensure quality foods.²³ While the reforms enacted after the 2007 recalls were good, they are not enough. However, we can use existing laws and organizations, particularly the Food Safety Modernization Act (FSMA)²⁴ and the Association of American Feed Control Officials (AAFCO)²⁵ to

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achieve this reform while still maintaining the integrity of our legal system.

This Article proposes the creation of an industry-wide system of supply chain traceability, funded by the pet food industry according to market share and overseen by the AAFCO, which is already connected to the FDA and state agencies on a voluntary basis. Lack of traceability was a key issue in the 2007 Menu Foods Recall, and the solutions that were created post-2007 still focus more on being reactive than on being proactive. Further, this Article proposes that an industry-wide stamp of quality assurance be implemented to provide pet food companies an optimal consumer communication of confidence.

Thus, this Article will address the imperative of implementing a dependable, uniform stamp of approval for the products produced by the United States pet food industry. In effect, this will be a positive step toward ensuring better quality control in the production of pet food. First, this Article will discuss problems with the current system of regulation that we have in the United States, and its lack of uniformity. Then, this Article will propose how the United States could shore up the regulatory system that is already in place by implementing a more uniform means of proactive regulation to ensure better quality of the pet food supply. This proposal will include partnering existing legislation with existing organizations and industry support to ensure that the foods produced by pet food companies meet the quality standards of food—not feed—which is the current means of regulation. Next, counterarguments to the proposed reform will be briefly discussed. Finally, this Article will conclude with how it is possible to enact the reform and why we need to do so.

II. Problems with Current FDA Regulation

A. Lack of Enforceable Oversight and Uniformity

Recalls of food products, whether regarding the human food supply or the non-human animal food supply, tend to garner headlines because the issue regards what we put in our bodies or feed to the pets that we love. However, the FDA's powers of pre-market approval as it relates to the food (human and non-human animal) market largely targets the additives that are placed in the food products or health claims the product makes.²⁶ As some human food manufacturers have discovered,

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certain claims about their products can invite the scrutiny of the FDA and effectively classify the food item as a "drug."²⁷ In the animal food industry, pre-market approval is also not required to get the product on the shelf.²⁸ Thus, as long as the food company meets the guidelines of the FD&C Act to provide food that is "safe to eat, produced under sanitary conditions, free of harmful substances, and truthfully labeled," then the food may be marketed to the consumer.²⁹ The problem is that an organization like the FDA has limited enforceable oversight until the problem occurs,³⁰ leading to illnesses among humans or non-human animals that strike before the quality issues are sighted. This is essentially the problem that occurred in the 2007 Menu Foods Recall.

1. The 2007 Menu Foods Recall Highlights Problems with FDA Regulation

In 2007, the families of dogs and cats around the world were shaken by the news that much of the pet food supply had been contaminated.³¹ This contamination would eventually lead to a massive national recall that impacted trusted pet food brands, both bargain and premium, all of which were predominately manufactured by a single company: Menu Foods, a Canadian corporation.³²

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The contamination problem was first reported by concerned pet owners to the customer hotline for Menu Foods when their cats became suddenly ill with kidney disease and, for some, kidney failure.³³ Subsequently, Menu Foods noticed a high rate of cats in their food tasting studies were becoming seriously ill or dying from kidney diseases.³⁴ The company then alerted the FDA of the problem, citing a possible problem with the wheat gluten used in the production of the foods.³⁵ The wheat gluten was also provided by a single supplier, ChemNutra, in China.³⁶ The result was that Menu Foods recalled over sixty million cans and pouches of wet dog and cat food.³⁷ The Menu Foods recall was so sweeping that it later placed in the top five recalls in United States history.³⁸

Once the FDA was notified of the problem, the organization began an investigation into the issue and uncovered the source of the contamination of the wheat gluten was melamine and cyanuric acid.³⁹ "Melamine is a synthetically produced chemical used for a wide variety of applications, including plastics, adhesives, laminates, paints, permanent-press fabrics, flame retardants, textile finishes, tarnish

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inhibitors, paper coatings and fertilizer mixtures."⁴⁰ Melamine is not meant to be ingested, but it is sometimes "believed that melamine was added to the wheat flour to increase the flour's apparent protein content, allowing the flour to pass for a higher-protein-containing ingredient, such as wheat gluten."⁴¹

The World Health Organization (WHO) reports that the Tolerable Daily Intake (TDI) of melamine is 0.2 mg per kg of body weight per day.⁴² This would effectively mean that the TDI for a ten-pound cat, which converts to approximately 4.54 kg would be 0.908 mg per day. For a forty-five-pound dog, which converts to approximately 20.41 kg, those calculations would be 4.082 mg per day. During the 2007 pet food crisis, samples of over 200 pet foods uncovered melamine concentrations ranging from 0 to 2263 mg/kg.⁴³

2. 2007 Congressional Inquiry Highlights Regulation Issues

The 2007 Menu Foods Recall raised numerous questions about the regulation of pet foods and...