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1IN THE UNITED STATES DISTRICT COURTFOR THE EASTERN DISTRICT OF
MISSOURI
EASTERN DIVISION
NESTL PURINA PETCARE COMPANY,
Plaintiff,
v.
THE BLUE BUFFALO COMPANY LTD.,
Defendant.
)))))))))
Case No. 4:14-cv-00859-RWS
JURY TRIAL DEMANDED
SECOND AMENDED COMPLAINT
Plaintiff, Nestl Purina PetCare Company (Purina), for its Second
Amended Complaint
against defendant The Blue Buffalo Company Ltd. (Blue Buffalo or
Defendant), and
pursuant to Federal Rule of Civil Procedure 15(a)(2), hereby
alleges and states as follows:
NATURE OF ACTION
1. This is an action for false advertising, commercial
disparagement, and unjust
enrichment arising from defendant Blue Buffalos pattern of false
and deceptive advertising.
This is also an action for declaratory judgment pursuant to 28
U.S.C. 2201 et seq. and Federal
Rule of Civil Procedure 57, seeking a declaration that Purinas
filing of this false advertising
action against Blue Buffalo and related statements regarding
this action do not constitute
defamation or other actionable disparagement of Blue
Buffalo.
2. With tens of millions of dollars in advertising and a small
army of in-store
marketers, Blue Buffalo has targeted its advertising at
ingredient-conscious pet owners. It has
become increasingly clear, however, that Blue Buffalos brand is
built on a platform of
dishonesty and deception. Testing from an independent laboratory
reveals that Blue Buffalo is
falsely advertising its pet food as containing NO
Chicken/Poultry By-Product Meals when, in
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2fact, Blue Buffalo pet food contains significant amounts of
chicken/poultry by-product meals.
Contrary to Blue Buffalos so-called True Blue Promise, many Blue
Buffalo products also
contain corn, other grains, and artificial preservatives when
they promise otherwise.
3. Spending roughly $50 million per year on advertising, Blue
Buffalo puts heavy
emphasis on its ingredient and nutritional claims throughout its
website, product packaging, and
advertisements. Despite Blue Buffalos massive advertising
barrage, Purina has discovered that
Blue Buffaloand not the big name pet food manufacturers Blue
Buffalo routinely criticizes
in its advertisingis concealing the truth about the ingredients
in, and benefits of, its products.
As Blue Buffalos CEO, Bill Bishop, admitted publicly after
Purina filed this lawsuit:
Slap on a good label, come up with a slogan, and off you go . .
.There were already a lot of smoke and mirrors in how pet food
wasadvertised, and that was the sort of stuff we were good at.
Barrett, Paul M., Dog Food Fight! Purina Says Blue Buffalo is
Built on Lies, Bloomberg
Businessweek Companies & Industries (July 24, 2014).
4. Blue Buffalo has indeed mastered the art of smoke and
mirrors. Investigation
and scientific testing by an independent laboratory completed in
April 2014 reveals that certain
Blue Buffalo products in fact contain poultry by-product meal
and that Blue Buffalo products
labeled grain-free contain rice hulls and/or corn. (See Exhibit
A). Testing was conducted using
samples of multiple formulas of Blue Buffalo pet food purchased
at retail stores on both the East
and West Coasts.
5. Fundamental to Blue Buffalos advertising are categorical
assertions that Blue
Buffalo products are allegedly superior to competitor brands.
Through Blue Buffalos advertising
in which it advocates its products as made with only the finest
natural ingredients and free
from less than desirable ingredients such as chicken/poultry
by-product meals, corn, and
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3preservatives, Blue Buffalo has become a pet food brand that
consumers have come to
associatefalsely with very high, ultra-premium healthy pet food.
To make matters worse,
Blue Buffalo charges very high ultra-premium prices based on the
same false attributes. Blue
Buffalos products are significantly more expensive than the pet
food products they use for
comparison purposes on their website.
6. Another hallmark of Blue Buffalos advertising is a vicious
and false attack on all
big name pet foods. Among these, the biggest falsehood is Blue
Buffalos lengthy national
advertising campaign claiming that big name pet food
manufacturers are concealing the truth
about the ingredients in their products. Blue Buffalo has spent
millions on television
commercials touting this themewhich is false and
unsubstantiated. Purina brings this lawsuit
to stop Blue Buffalos wrongdoing and to set the record
straight.
7. Purina is not alone in exposing Blue Buffalos lack of honesty
with consumers.
Purina brings this lawsuit in the wake of an investigation and
two recent rulings from the
National Advertising Division of the Council of Better Business
Bureaus (NAD) that Blue
Buffalo is engaging in misleading advertising practices. At the
conclusion of a process where
Blue Buffalo had the opportunity to submit substantiation for
its attack advertisements, the NAD
concluded in a detailed written decision: [Blue Buffalo] has not
provided any evidence that big
name pet food manufacturers . . . are actively concealing the
truth about the ingredients in their
products. (NAD Case #5696, decided March 11, 2014, attached
hereto as Exhibit B, hereinafter
NAD Ruling).
8. Consequently, and as the NAD concluded, Blue Buffalo is
misleading consumers
not only about the ingredients in its own products, but also
about the ingredients in competing
products. The NAD sharply criticized Blue Buffalos advertising
tactics and recommended that
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4Blue Buffalo stop unsupported advertising claiming that Blue
Buffalos competitors are
misleading consumers. (Id. at 8-10, 14).
9. The NAD also instructed Blue Buffalo to overhaul its True
Blue Test, which
Blue Buffalo offers on its website as a comparison tool for
consumers to use to compare certain
characteristics of Blue Buffalos products versus those of
competitors (including Purina
products). The NAD determined, among other things, that: (a)
Blue Buffalo was guilty of
making sweeping allegations about the ingredient content of all
products offered by certain
competitors, when in fact such statements may only be true for a
fraction of those competitors
product offerings; and (b) the information displayed about
competitor products was not always
current. (Id. at 11-4). Blue Buffalo preaches a message of
truth, but is not practicing it.
10. After Purinas original complaint was filed, Blue Buffalo
appealed the NADs
ruling. On July 9, 2014, a four-member panel of the National
Advertising Review Board
(NARB) upheld the original decision of the NAD on appeal. (See
Exhibit C). After losing its
appeal, Blue Buffalo finally agreed, reluctantly, that it would
strive to abide by the NADs
recommendations, [o]ut of respect for that process, because it
voluntarily committed to
participate in the self-regulatory process of the NAD and NARB.
(NARB Case #5696, decided
July 9, 2014, hereinafter NARB Ruling).
11. Blue Buffalos pattern of behavior is unlawful and just plain
wrong. Through this
legal action, Purina seeks to halt Blue Buffalos pattern of
false advertising and consumer
deception.
THE PARTIES
12. Plaintiff Purina is a leading pet food and nutrition company
with a rich history
spanning over 85 years. Purina makes and sells pet food, treats,
and related products in the
United States and worldwide in grocery stores, mass
merchandisers, pet stores, and online.
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5Purina is a Missouri corporation with headquarters at 901
Chouteau Avenue, St. Louis, Missouri
63102.
13. On information and belief, Defendant Blue Buffalo is a
Delaware corporation
with its headquarters at 444 Danbury Road, Wilton, Connecticut
06897. Blue Buffalo is in the
business of advertising and selling pet food, pet treats, and
related products.
JURISDICTION AND VENUE
14. This is an action for false advertising and arises under the
Trademark Act of 1946,
15 U.S.C. 1051, et seq. (Lanham Act) and the common law of the
State of Missouri.
15. This Court has subject matter jurisdiction over this action
pursuant to 15 U.S.C.
1121 and 28 U.S.C. 1331, 1338 and 2201. This Court has
supplemental jurisdiction over the
related state and common law claims pursuant to 28 U.S.C.
1338(b) and 1367(a). This Court
also has subject matter jurisdiction on the separate and
independent ground of diversity of
citizenship pursuant to 28 U.S.C 1332(a). The parties are
citizens of different states and the
amount in controversy exceeds $75,000, exclusive of interest and
costs.
16. This Court has personal jurisdiction over Blue Buffalo
pursuant to Missouri
Revised Statute 506.500 because, as admitted by Blue Buffalo in
its Answer to Purinas First
Amended Complaint (Dkt. 21 at 12), Blue Buffalo advertises and
sells its products to retailers
and consumers in Missouri. Upon information and belief, Blue
Buffalo and its agents have
prepared, disseminated, made available or broadcasted television
commercials, in-person
promotions, print advertisements, Internet advertisements and
related materials, all of which are
at issue here, in this District. On information and belief, Blue
Buffalo employs pet detectives
in Missouri to promote sales of Blue Buffalo products to
consumers in various retail outlets in
Missouri. Blue Buffalo maintains a registered agent for service
of process in Missouri.
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617. Venue is proper in this District under 1391(b)(2) and (c)
because a substantial
part of the events or omissions giving rise to this action have
occurred and/or will occur within
this District, and the Defendant resides in this District.
BLUE BUFFALOS FALSE AND MISLEADING ADVERTISING ACTIVITIES
18. Blue Buffalos advertising strategy is centered around its
ingredient and product
claims and promises, and the value of its brand is dependent on
such claims. Nutritional,
ingredient and product performance claims pervade Blue Buffalos
website, its product
packaging, its print ads, its television ads and other like
advertising materials. As a consequence
of and in reliance on these claims, retailers and consumers are
willing to pay and have paid a
substantial price premium for Blue Buffalo products.
19. Blue Buffalos false advertising statements have had wide
consumer reach. On
information and belief, Blue Buffalo spent over $50 million on
advertising in 2013 comprised of
a wide array of national print, television, and Internet ads. On
information and belief, Blue
Buffalo is poised to spend another $50 million or more on
advertising in 2014. Many of these
advertisements include statements that are materially false and
misleading, and were made with
the specific intent to persuade consumers to purchase Blue
Buffalo products. Consumers have
relied on these false and misleading statements in making their
decisions to purchase Blue
Buffalo products.
NO Chicken/Poultry By-Product Meals
20. Blue Buffalo advertises a so-called TRUE BLUE PROMISE
claiming
unequivocally that its products contain NO chicken/poultry
by-product meals.
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7Source: Blue Buffalo website 4/22/2014
In addition to its website, Blue Buffalo places the True Blue
Promise on every label of its
products. Additionally, Blue Buffalos sales employees verbally
communicate this promise to
consumers on-site at pet stores. The True Blue Promise is false
because Blue Buffalo products
actually contain chicken/poultry by-product meals and other
ingredients, contrary to the
promise.
21. Blue Buffalo tries to boost the credibility of its
advertising through more detailed
explanations and Q&A segments on its website:
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8Source: Blue Buffalo website 4/22/2014
Source: Blue Buffalo website 4/22/2014
22. Blue Buffalos statements that its products contain NO
chicken/poultry by-
product meals and its attempt to differentiate Blue Buffalo
products from competing brands are
false because Blue Buffalos products actually contain a
significant amount of chicken/poultry
by-product meals. In short, Blue Buffalo has broken its True
Blue Promise to consumers. For
example, Blue Buffalo attempts to differentiate its products
from many of the leading pet food
brands by contending that Blue Buffalo products do not contain
ingredients . . . considered less
than desirable by pet parents such as chicken or poultry
by-product meals. This is false.
23. Purina engaged an independent laboratory to conduct testing
to determine the
ingredient makeup of a number of Blue Buffalo products. The
scientific testing revealed that,
contrary to Blue Buffalos representations to consumers that its
products do not contain
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9chicken/poultry by-product meals, Blue Buffalos products
actually do contain a substantial
percentage of chicken/poultry by-product mealsnot trace amounts.
Indeed, the testing revealed
that chicken/poultry by-product meals were the most prevalent
ingredients and comprised
upwards of 20% of the product by weight of some of the tested
Blue Buffalo products.
Superior Nutrition
24. Blue Buffalo makes statements that consumers should Choose
BLUE because
its products allegedly provide pets with superior nutrition as
compared to those of competitor
products. Blue Buffalos superior nutrition claims are premised
in part on its assertions that its
products do not contain certain ingredients such as
chicken/poultry by-product meals. In
addition, Blue Buffalo attributes special nutritional
significance to its exclusive LifeSource
Bits.
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10
Source: Blue Buffalo website 4/22/2014
25. Blue Buffalos superior nutrition claims were sharply
criticized in the recent
NAD decision. Particularly, the NAD concluded:
[Blue Buffalo] has not provided any evidence that meat
by-product mealis not a high quality ingredient or that it is not
nutritious, or that productswhich include meat by-product meal are
less nutritious than BLUEs orsimilarly positioned products that do
not.
(NAD Ruling at 10). In its criticism of Blue Buffalos efforts to
disparage the nutritional value of
by-product meals, the NAD also explained that [i]n fact, NAD has
noted in prior decisions
involving advertising for pet foods that chicken by-product
meals are nutritious. (Id.). In
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support of its finding that Blue Buffalos statements alleging
superior nutrition were false and
baseless, the NAD explained:
some dogs and cats have allergies or sensitive stomachs which
precludeeating foods which include meat, and no allowance is made
for productsdesigned for pets with dietary restrictions in any of
the challengedadvertisements.
(Id.).
26. Blue Buffalos statements that its products are nutritionally
superior to those of
competitors are false because, as the NAD found, there is no
evidence that Blue Buffalos
products are any more nutritious than similarly positioned
competitive products. Furthermore,
Blue Buffalo cannot distinguish its products as allegedly
superior over competitive products
for not having chicken/poultry by-product meals as the testing
reveals that its products contain
this precise ingredient.
Comparative Advertising
27. Blue Buffalos advertising features comparisons between Blue
Buffalo products
and those of its competitors, which represents and sends a
message to consumers that Blue
Buffalos products contain better ingredients and that Blue
Buffalo is, unlike its competitors,
honest about the ingredients that it uses. Blue Buffalo even
offers to give consumers information
about How [] some brands categorize certain ingredients to make
their food appear healthier,
falsely implying that Blue Buffalo is honest and does not engage
in such tactics.
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Source: Blue Buffalo website 4/22/2014
28. Blue Buffalo has aired and continues to air nationally
televised commercials
featuring pet owners who allegedly switch to Blue Buffalo after
learning the truth about big
name dog foods. For example, one of Blue Buffalos attack ads
states verbatim:
When pet parents learn the truth about big name dog foods, they
switchto Blue Buffalo. All Blue Life Protection foods are made with
real meatfirst, plus wholesome whole grains, veggies and fruit.
I didnt know how my dogs big name food stacked up, so I went to
Blueswebsite, and I took the True Blue Test. It was clear, Blue had
everythingthat I wanted and none of the stuff I didnt want.
Only Blue has LifeSource Bits. A precise blend of beneficial
nutrients.And now weve enhanced LifeSource Bits with powerful
antioxidant-richingredients, including pomegranate, pumpkin,
spinach, apples,blackberries, blueberries and cranberries. We call
it our Super 7 package.When you love them like family, you want to
feed them like family.Thats why I feed him Blue. With Super 7 Life
Source Bits, Blue is betterthan ever. Take the True Blue Test
today, and see how your dogs foodcompares to Blue.
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(Blue Buffalo website:
http://www.bluebuffalo.com/tv-commercials) (emphasis added).
Source: Blue Buffalo website 4/22/2014; BLUE Dog Food
commercial
29. Despite being told by the NAD to cease its unsubstantiated
attacks on competing
brands, Blue Buffalo continues to pepper consumers with these
false messages.
30. To help misleadingly differentiate itself from other
competing brands, Blue
Buffalo offers through its website what it has coined the True
Blue Test, which allows
consumers to compare the alleged ingredient contents of Blue
Buffalos products with those of
other leading brands, including those of Purina. Among other
claims, the True Blue Test
falsely advocates that Blue Buffalos products NEVER Has Chicken
(or Poultry) By-Product
Meals and identifies competing leading brands that, by Blue
Buffalos assessment, do. (See,
e.g., id.). These statements are materially false because Blue
Buffalo products, as tested, contain
chicken/poultry by-product mealsin significant amounts. Further,
many Blue Buffalo products
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contain corn and artificial preservatives, also directly
contrary to the representation that Blue
Buffalo products NEVER contain these ingredients.
Source: Blue Buffalo website 4/22/2014
31. Consumers of pet food and related products are becoming
increasingly ingredient-
conscious and are being more particular than ever about the
types of foods that they feed their
pets. Indeed, consumers rely on ingredient claims and other
statements about nutritional value
and food quality when deciding the brand of food to feed their
pets. Many consumers have
chosen to purchaseand pay a substantial premium forBlue Buffalo
brand products over other
leading brands because of the false nutritional statements and
promises made by Blue Buffalo,
including, for example, false statements that its products: (i)
do not contain chicken/poultry by-
product meals; and (ii) contain none of the ingredients that
ingredient-conscious consumers
would not want; when in fact, Blue Buffalos products contain
chicken by-product meals and
other ingredients that Blue Buffalo itself advocates
ingredient-conscious consumers should not
want.
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LifeSource Bits
32. Blue Buffalo has created what it calls LifeSource Bits that
it represents as
containing special vitamins, minerals and antioxidants that are
allegedly cold-formed. These
bits are distinct from and a different color than the kibble
that constitutes about 95% of the
Blue Buffalo pet food as a whole. Blue Buffalo touts its
LifeSource Bits as containing a precise
blend of vitamins, minerals and antioxidants and offering a
series of special health benefits for
pets above and beyond the nutrition in Blue Buffalos own kibbles
and other pet foods:
Source: Blue Buffalo website 4/22/2014
33. Blue Buffalo falsely implies that its LifeSource Bits are
superior in nutritional
quality to vitamins, minerals, antioxidants and other
ingredients included in other competing pet
food products. For example, Blue Buffalo includes LifeSource
Bits on the results page of its
True Blue Test, advertising LifeSource Bits as one of the
qualities that allegedly makes Blue
Buffalos products superior to those of competitors.
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Source: Blue Buffalo website 4/22/2014
34. In actuality, the low level of certain nutrients in Blue
Buffalos LifeSource Bits
do not render them superior. Similarly, Blue Buffalo makes false
and misleading statements that
its LifeSource Bits contain certain levels of vitamins, minerals
and nutrients that provide specific
health benefits such as a healthy skin and coat and healthy
bones and tissue.
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Source: Blue Buffalo website 4/22/2014
35. For example, Blue Buffalo claims that its LifeSource Bits
contain taurine for
healthy eyes and heart. Taurine is an essential amino acid for
cats, as cats have a limited ability
to synthesize it from other nutrients. Yet tests reveal that
Blue Buffalos LifeSource Bits have
significantly less taurine than the kibbles themselves,
constituting only 0.01% of the LifeSource
Bit. (See Exhibits D, E). Contrary to Blue Buffalos claim of
greater potency, removing the
LifeSource Bits from the kibble would actually increase the
amount of taurine per serving of
Blue Buffalo pet food. In fact, in order to obtain the same
level of taurine from the touted
LifeSource Bits would require nearly 40 times as many LifeSource
Bits as the Blue Buffalo
kibbles themselves. (See Exhibits D-G). The level of taurine in
Blue Buffalos LifeSource Bits
is approximately ten times less than that required by the
Association of American Feed Control
Officialsan independent industry standard that Blue Buffalo
claims to follow on its website.
36. A similar circumstance exists with respect to lysine,
another important amino
acid. Despite claiming that its LifeSource Bits contain lysine
for growth and development, in
fact the LifeSource Bits contain less lysine than Blue Buffalos
kibble. As with taurine, a pet
would get more lysine per serving if Blue Buffalos product
contained no LifeSource Bits.
37. Blue Buffalo makes similarly dubious claims regarding the
levels of omega-3 and
omega-6 fatty acids in its LifeSource Bits. Tests reveal that
Blue Buffalos LifeSource Bits have
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slightly less omega-6 fatty acids than their regular kibble.
Therefore, a pet would receive more
omega-6 fatty acids per serving if Blue Buffalo added no
LifeSource Bits at all. Furthermore,
the LifeSource Bits are such a small fraction of the pet food as
a whole that any additional
omega-3 fatty acids in the LifeSource Bits contribute a
negligible amount per serving to a pet.
38. Blue Buffalos deceptions also extend to the vitamins in the
LifeSource Bits.
Blue Buffalo advertises its LifeSource Bits for their levels of
Vitamin B12, but in fact the
LifeSource Bits contain 2-3 times less Vitamin B12 than the
regular kibble.
39. In sum, Blue Buffalos LifeSource Bits do not contain the
requisite levels of
vitamins, minerals or nutrients to provide all of the health
benefits that Blue Buffalo alleges. As
such, Blue Buffalos LifeSource Bits are precisely the type of
smoke and mirrors touted by its
Chairman and Founder.
40. Blue Buffalo also makes false and misleading statements
implying that the cold-
formed process that it purportedly uses to create its LifeSource
Bits is the only way to preserve
the vitamins, minerals, antioxidants and enzymes contained in
pet food and falsely asserts that its
competitors do not take steps to similarly preserve the
nutritional qualities of their products. Blue
Buffalo also makes statements that other manufacturers process
their foods with heat as high as
350 . . . [which] can destroy the potency of many vitamins,
minerals, antioxidants and important
enzymes, while failing to disclose the reason why foods are
processed with heat (e.g., to kill
harmful bacteria) and that, in fact, most of Blue Buffalos
products are processed using the same
high-heat methods. (See, e.g., id.).
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Source: Blue Buffalo website 4/22/2014
Pet Treats
41. While Blue Buffalos focus on LifeSource Bits pervades its
advertising for dog
and cat food, Blue Buffalo also advertises products allegedly
providing specific health benefits.
For example, Blue Buffalo advertises a Jolly Joints pet treat
that Helps Promote Healthy
Joints and Hips.
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Source: Blue Buffalo website 9/14/2014
42. By Blue Buffalos own admission, these pet treats contain
only 300mg/kg of
glucosamine. An entire bag of Jolly Joints contains 92 grams of
pet treats, and therefore contains
just 27.6 mg of glucosamine. Based upon published studies of
glucosamine supplementation in
dogs, a 50-pound dog would have to eat hundreds of treats a day
to receive the claimed benefit,
well above the intermittent or supplemental feeding Blue Buffalo
recommends for its Jolly
Joints pet treats.
Natural Ingredients/NO Artificial Preservatives
43. Blue Buffalo has made and is currently making statements and
promises to
consumers that its products contain Only the Finest Natural
Ingredients and have NO
Artificial Preservatives.
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Source: Blue Buffalo website 4/22/2014
Source: Blue Buffalo website 4/22/2014
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44. These statements and promises are repeated throughout Blue
Buffalos website,
its national television commercials and other advertising
materials. Blue Buffalos employees
also make verbal statements to consumers that Blue Buffalos
products contain Only the Finest
Natural Ingredients and like statements. Blue Buffalo even has a
staff of salespeople who dress
similarly to pet store employees and approach consumers in pet
stores to inform consumers of
the quality of Blue Buffalos products as compared to competitive
products, including the
falsehood that Blue Buffalos products do not contain any
chicken/poultry by-product meals and
that Blue Buffalo honors the True Blue Promise.
45. Blue Buffalos statements and promises that its products
contain Only the Finest
Natural Ingredients and have NO Artificial Preservatives are
false and misleading because,
among other things, Blue Buffalos products contain
chicken/poultry by-product meals that
include artificial preservatives that are not present in
chicken/poultry meal.
Grain-Free
46. Blue Buffalo advertises several of its products, including
its Freedom and
Basics lines, as being grain-free, often as part of the product
name. Blue Buffalo also
advertises that all of its products contain no corn, wheat or
soy.
47. Grain-free pet foods are desired by many consumers who
believe that dogs and
cats should be fed as carnivores because they may not get
sufficient nutrients or have difficulty
digesting grains. Blue Buffalo attempts to seize upon consumers
beliefs and advocates that not
including grains and glutens in its products is beneficial
because consuming grains and glutens
can cause allergic reactions.
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Source: Blue Buffalo website 4/22/2014
Source: Blue Buffalo website 4/22/2014
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Source: Blue Buffalo website 4/22/2014
Source: Blue Buffalo website 4/22/2014
48. Blue Buffalos statements that its products are grain-free
and contain no corn,
wheat or soy are, however, false and misleading as testing
reveals that Blue Buffalo products
indeed do contain these ingredients. Specifically, independent
testing commissioned by Purina
found grains (rice hulls and/or ground corn) in Blue Buffalos
LifeSource Bits, which are
contained in all four Blue Buffalo grain-free products. These
grains were found in
concentrations of up to 3% by weight.
49. By falsely advertising its products as grain-free when its
products actually
contain grains, Blue Buffalo is deceiving consumers who intend
to purchase grain-free products.
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Human-Grade Pet Food
50. Blue Buffalo makes statements that its products are
human-grade and fit for
human consumption, and has adopted the slogan Love them like
family. Feed them like family.
to convey this message to consumers. (See, e.g., Exhibit H).
Source: Blue Buffalo website 4/22/2014
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Source: Blue Buffalo website 4/22/2014
51. Blue Buffalos statements that its products are human-grade
and/or fit for human
consumption are materially false because Blue Buffalos products
contain ingredients such as
chicken/poultry by-product meals that are not human-grade.
BLUE BUFFALOS PRIOR DECEPTIVE PRODUCTLABELING AND ADVERTISING
PRACTICES
52. In addition to the recent NAD dispute, Blue Buffalo has been
no stranger to legal
disputes centered on its pattern of long-standing deceptive
advertising practices. In 2008, Blue
Buffalos nutritional boasts were challenged by a competitor
before the NAD. That challenge
resulted in, among other things, the NAD instructing Blue
Buffalo to discontinue its no animal
by-products claims when made in reference to pet foods
containing fish meal, lamb meal and/or
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liver. (See NAD Case #4892 at 10-11, decided July 31, 2008,
attached hereto as Exhibit I). In
response to the NADs recommendations related to its no animal
by-products claims, Blue
Buffalo has switched to an equally untrue claim that its
products NEVER have Chicken (or
Poultry) By-Product Meals.
53. The NAD also recommended that Blue Buffalo discontinue the
like you feed
your family portion of its slogan in connection with its
non-organic product lines. (Id. at 14).
Despite submitting voluntarily to the NADs jurisdiction, Blue
Buffalo did not make any
material changes to its slogan in response to the NADs
recommendation and continues to
deceptively advertise all of its products using its Love them
like family. Feed them like family.
slogan.
54. Rather than revise its advertising to remove deceptive
content, Blue Buffalo has
actually increased the misleading and deceptive nature of its
advertising over the years. It is time
for Blue Buffalos false and deceptive advertising practices to
end.
BLUE BUFFALOS REACTION TO PURINAS COMPLAINT
55. On May 6, Purina filed the original version of this
complaint. In addition to its
original complaint, Purina (A) issued a press release noting
that it had filed suit, (B) launched a
website, www.petfoodhonesty.com, that hosted a copy of the
original complaint, and (C) made
additional related statements regarding this lawsuit to the
media.
56. On the day the original complaint was filed, Blue Buffalos
Founder and
Chairman, Bill Bishop, made a public statement about the matter,
claiming that Purina brought
suit to disparage and defame Blue Buffalo.
57. Mr. Bishop made a second public statement regarding the
original complaint on
May 8, 2014 (see Exhibit J), which stated, in part, as follows
(emphasis added):
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In my first letter I told you that Blue Buffalo would be
respondingaggressively to Nestl Purinas lawsuit and its outrageous
allegations withregard to BLUEs product quality. The first phase of
this response will bea lawsuit against Nestl Purina, which will be
filed in a matter of days. Wewill be suing both their company and
those individuals who areresponsible for this malicious attempt to
undermine the trust of our petparents.
58. Mr. Bishops statement put Purina in reasonable apprehension
of suit for
defamation.
COUNT I(False Advertising Under the Lanham Act, 15 U.S.C.
1125(a))
59. Purina repeats and incorporates herein each and every
allegation set forth in
paragraphs 1 to 58 of this Complaint.
60. Blue Buffalo, on or in connection with goods used in
interstate commerce, made
and continues to make false statements of fact and false
representations of fact as to the nature,
characteristics and/or qualities of its goods. Blue Buffalo has
also made false statements of fact
and representations of fact as to the goods of its
competitors.
61. Blue Buffalos false statements of fact and false
representations of fact were made
and continue to be made in commercial advertising and on product
labels in a manner material to
the publics decision to purchase Blue Buffalos products rather
than those of competitors,
including Purina.
62. Such acts by Blue Buffalo constitute false statements,
descriptions and
representations of fact in commercial advertising and are a
violation of Section 43(a) of the
Lanham Act, 15 U.S.C. 1125(a).
63. As a proximate result of Blue Buffalos willful conduct,
Purina has suffered
irreparable harm, including irreparable harm to its reputation
and goodwill and the reputation of
its products, for which it has no adequate remedy at law, and
Purina will continue to suffer
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irreparable injury unless and until Blue Buffalo ceases making
false statements in connection
with and to advertise its products.
64. Unless Blue Buffalos activities cease, Blue Buffalo will
unjustly profit from sales
of its products that are based on consumer reliance on the false
statements that it has made and is
making about its products. Purina has suffered and will continue
to suffer economic harms,
including losses in sales as proximately caused by Blue Buffalos
actions.
65. Purina has suffered and will continue to suffer economic
harms and injuries to its
commercial interests, including losses in sales, which have been
and are being proximately
caused by Blue Buffalos actions and misrepresentations.
66. Pursuant to 15 U.S.C. 1117, Purina is entitled to actual
damages to be
determined at trial, to have such damages trebled, to
disgorgement of Blue Buffalos profits, and
to be reimbursed for the costs of this action and its related
attorneys fees.
COUNT II(Commercial Disparagement Under the Lanham Act, 15
U.S.C. 1125(a))
67. Purina repeats and incorporates herein each and every
allegation set forth in
paragraphs 1 to 66 of this Complaint.
68. Blue Buffalo, on or in connection with goods used in
interstate commerce, made
and continues to make false comparisons of its products as
compared to those of competitors,
including Purina.
69. Blue Buffalos false statements of fact and false comparisons
were made and
continue to be made in commercial advertising and on product
labels in a manner material to the
publics decision to purchase Blue Buffalos products over those
of competitors, including
Purina.
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70. Such acts by Blue Buffalo constitute false statements,
descriptions and
representations of fact in commercial advertising and are a
violation of Section 43(a) of the
Lanham Act, 15 U.S.C. 1125(a).
71. As a proximate result of Blue Buffalos willful conduct,
Purina has suffered
irreparable harm, including irreparable harm to its reputation
and goodwill and the reputation of
its products, for which it has no adequate remedy at law, and
Purina will continue to suffer
irreparable injury unless and until Blue Buffalo ceases making
false statements and comparisons
in connection with and to advertise its products pursuant to 15
U.S.C. 1116.
72. Unless Blue Buffalos activities cease, Blue Buffalo will
unjustly profit from sales
of its products that are based on consumer reliance on the false
and deceptive comparisons that it
has made and is making about its products as compared to those
of competitors, including
Purina.
73. Purina has suffered and will continue to suffer economic
harms and injuries to its
commercial interests, including losses in sales, which have been
and are being proximately
caused by Blue Buffalos actions and misrepresentations.
74. Pursuant to 15 U.S.C. 1117, Purina is entitled to actual
damages to be
determined at trial, to have such damage trebled, to
disgorgement of Blue Buffalos profits, and
to be reimbursed for the costs of this action and its related
attorneys fees.
COUNT III(Common Law Unfair Competition)
75. Purina repeats and incorporates herein each and every
allegation set forth in
paragraphs 1 to 74 of this Complaint.
76. Blue Buffalo has engaged in and continues to engage in
unfair competition by
making false, misleading and deceptive statements about its
products while disparaging the
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products of competitors. Blue Buffalos misleading and deceptive
statements have caused and
continue to cause consumers to purchase Blue Buffalos products
over the products of
competitors, including Purina.
77. Blue Buffalo acted and continues to act in bad faith in
making claims about its
products that it knew and knows to be materially false and
deceptive.
78. Blue Buffalos acts constitute false advertising and unfair
competition under the
common law of the State of Missouri.
COUNT IV(Common Law Unjust Enrichment)
79. Purina repeats and incorporates herein each and every
allegation set forth in
paragraphs 1 to 78 of this Complaint.
80. Blue Buffalo has enjoyed substantial profits from the sale
of its products to
consumers who purchased Blue Buffalos products over the products
of competitors based on
false statements made by Blue Buffalo, including that Blue
Buffalos pet food products do not
contain chicken/poultry by-products meals when its products in
fact do. These statements made
by Blue Buffalo include false comparative statements about the
ingredients and nutritional values
of Blue Buffalos product as compared to those of competitors,
including Purina.
81. Blue Buffalo would not have made such sales or earned the
profits therefrom but
for the misrepresentations and false statements that it made and
continues to make about its
products. On information and belief, Blue Buffalos profits were
further inflated via cost savings
for less expensive ingredients than advertised. For example,
poultry by-product meal is
generally less expensive than the real meat that Blue Buffalo
references in its advertising.
82. Blue Buffalos gain from sales of falsely advertised products
and disparagement
of competitors came at the expense of competitors, including
Purina.
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83. Blue Buffalo has been unjustly enriched as a result of its
false statements and
misleading advertising practices, and under principles of equity
should not be permitted to retain
these unjustly acquired gains.
COUNT V(Declaratory Judgment)
84. Purina repeats and incorporates herein each and every
allegation set forth in
paragraphs 1 to 83 of this Complaint.
85. An actual and immediate controversy exists between the
parties hereto in
connection with Blue Buffalos threats to sue Purina and certain
unnamed individuals with
respect to the statements made in the original complaint and
related statements to the media.
86. Purina seeks a declaration by this Court that this action
and related statements do
not constitute defamation, including because such statements are
true and are privileged
statements made in connection with litigation.
87. A declaration by this Court as outlined in paragraph 86
above would resolve all or
a complete part of the controversy between the parties as to
this Count, prevent Blue Buffalo
from continuing to threaten legal action, determine the parties
rights and responsibilities for the
statements made in this action and related statements, and be in
the interests of justice.
PRAYER FOR RELIEF
WHEREFORE, Purina prays that the Court enter a judgment against
Blue Buffalo:
(a) Finding that, by the acts complained of above, Blue Buffalo
has engaged
in false advertising in violation of 15 U.S.C. 1125(a);
(b) Finding that, by the acts complained of above, Blue Buffalo
has engaged
in false advertising in violation of Missouri common law;
(c) Finding that the acts complained of above were willful;
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(d) Finding that Blue Buffalo has been unjustly enriched as a
result of its false
advertising and false comparative advertising tactics;
(e) Enjoining Blue Buffalo, its agents, servants, employees,
officers, and all
persons in active concern and participation with Blue Buffalo
from
making false and/or misleading statements about its products,
including
statements that are likely to lead consumers to believe that its
pet food
products are free from by-product meals or are of a human-grade
quality;
(f) Enjoining Blue Buffalo, its agents, servants, employees,
officers, and all
persons in active concern and participation with Blue Buffalo
from
making false and/or misleading statements about its products as
compared
to those of competitors, including that its pet food products
are more
nutritious, free from chicken/poultry by-product meals or are of
a human-
grade quality;
(g) Requiring Blue Buffalo to engage in corrective advertising,
including
advertising that informs consumers that Blue Buffalos pet food
products
are not free from by-product meals and are not of a human-grade
quality;
(h) Requiring Blue Buffalo to destroy all product packaging and
all other
materials displaying false statements, including that its pet
food products
are free from by-product meals and are of human-grade quality
(e.g., the
Feed them like family. slogan);
(i) Declaring that this is an exceptional case due to the
willful nature of
Blue Buffalos conduct;
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(j) Ordering Blue Buffalo to account to Purina for all gains,
profits, savings
and advantages obtained by Blue Buffalo as a result of its false
advertising
and unfair competition and disgorge to Purina restitution in the
amount of
such gains, profits, savings and advantages;
(k) Ordering Defendant to pay Purina:
i. Treble actual damages, costs and reasonable attorneys
fees
pursuant to 15 U.S.C. 1117;
ii. Blue Buffalos profits and cost savings from the sale of
its
products resulting from its false advertising practices; and
iii. Pre-judgment and post-judgment interest;
(l) Declaring that Purinas statements in this action and related
statements are
not defamatory or otherwise actionable by Blue Buffalo; and
(m) Awarding Purina such other and further relief as this Court
may deem just
and proper.
JURY DEMAND
Purina hereby demands a trial by jury.
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Dated: November 13, 2014 Respectfully submitted,
NESTL PURINA PETCARE COMPANY
/s/ Carmine R. Zarlenga
Carmine R. Zarlenga 386244DC (Lead attorney)MAYER BROWN LLP1999
K Street NWWashington, DC 20006Telephone: (202) 263-3227Facsimile:
(202) [email protected]
Richard M. Assmus (pro hac vice)Kristine M. Young (pro hac
vice)MAYER BROWN LLP71 South Wacker DriveChicago, Illinois
60606Telephone: (312) 782-0600Facsimile: (312)
[email protected]@mayerbrown.com
David A. Roodman, 38109MOBRYAN CAVE LLP211 North Broadway
#3600St. Louis, Missouri 63102Telephone: (314) 259-2000Facsimile:
(314) [email protected]
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CERTIFICATE OF SERVICE
The undersigned hereby certifies that he caused a true and
correct copy of the foregoing
Second Amended Complaint to be served on all counsel of record
who are deemed to have
consented to electronic service on this day of November 13, 2014
via the Courts CM/ECF
system.
s/ Carmine R. Zarlenga
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EXHIBIT A
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Windsor Laboratories 894 Hawthorn Avenue Mechanicsburg, PA 17055
Phone: (717) 796-0537 Fax: (717) 796-0537 Microscopic Evaluation of
Agricultural Products Members of the American Oil Chemists Society
(AOCS) July23,2014
EXPERTREPORTOFJAMESV.MAKOWSKII.
EXECUTIVESUMMARYThisReportsummarizesthemicroscopicanalysesIperformedonthefollowingpetfoodstodeterminetheiringredientcontent:
BlueBuffaloLifeProtectionAdultChickenandBrownRice(Dog)
BlueBuffaloFreedomAdultGrainFreeChicken(Dog)
BlueBuffaloWildernessAdultChickenRecipe(Dog)
BlueBuffaloBasicsAdultTurkey&Potato(Dog)
BlueBuffaloLongevityLongevityforAdultDogs(Dog)
PurinaProPlanSELECTAdultGrainFreeFormula(Dog)
PurinaONEbeyOndWhiteMeatChicken&WholeBarleyRecipe(Dog)
BlueBuffaloLifeProtectionIndoorHealthChicken&BrownRiceRecipe(Cat)
BlueBuffaloFreedomGrainFreeChickenforIndoorCats(Cat)
BlueBuffaloWildernessAdultChickenRecipe(Cat)
BlueBuffaloBasicsAdultTurkey&Potato(Cat)
BlueBuffaloLongevityLongevityforAdultCats(Cat)
PurinaONEbeyOndWhiteMeatChicken&WholeOatMealRecipe(Cat)
PurinaONEbeyOndSalmon&WholeBrownRiceRecipe(Cat)
Based on the microscopic analyses of these products, I conclude
that several of the Blue
Buffaloproductstestedcontainmeasurableamountsofchicken/poultrybyproductmealorgrains.II.
EXPERIENCEANDQUALIFICATIONSI,
JamesV.Makowski,ampresentlyemployedbyMessiahCollege
inMechanicsburg,Pennsylvania,asProfessorofBiology. I teachcourses
including,amongothers,undergraduatecoursesonCellularandMolecular
Biology, Microbiology, and Genetics (all of which include units on
microscopic analysismethods andprocedures) and conduct
corresponding research. I also teach a
seniorundergraduatecourseinBioethics.IearnedaPh.D.inCurriculum&Instruction/ScienceEducationattheUniversityofDelaware,
aMasterofArts inBiology atWestChester StateUniversity and
aBachelorof Science inBiology at Messiah College. I am the Owner
and Microscopist of Windsor Laboratories
ofMechanicsburg,Pennsylvania,apositionIhaveheldfor28years.Inthiscapacity,Iconductmicroscopicanalysis
for clients in theagricultural industryand related industries,
including thepet food
industry.AttachedtothisreportasExhibit1ismycurriculumvitaestatingmyqualifications,includingalistofallpublicationsauthoredintheprevious10years.Iamanauthorand
the leadeditorofMICROSCOPICANALYSISOFAGRICULTURALPRODUCTS
(4thed.2010),withNeilVary,MarjorieMcCutcheonandPascalVeys,publishedby
theAmericanOilChemists
PUR_000207
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Society.Thisbookistheleadingmanualforthemicroscopicanalysisofagriculturalproducts,includinganimalproteinproducts,intheUnitedStatesandworldwide.Itisusedasaprimarytrainingresourceonthe
subject of microscopic analysis of agricultural products by the
United States Food and DrugAdministration (FDA). Ispeakwidelyon
theuseofmicroscopy forpurposessuchas thedetectionofprohibited
protein in ruminant feed, including at workshops conducted by the
FDA and NationalInstitutesofHealth (NIH).
Ihavealsotaughtnumerous35dayshortcoursesonusingmicroscopytoidentify
components in various agricultural products for the Association of
American Feed ControlOfficials and the American Association of
Cereal Chemists. I have instructed microscopists for theAmerican
SoybeanAssociation, including in Jamaica and Trinidad. I am also
the Chairperson of
theTrainingCommitteefortheAgriculturalMicroscopyDivisionoftheAmericanOilChemistsSociety.III.
SCOPEOFENGAGEMENTIwasretainedinFebruary2014byNestlPurinaPetCaretoconductmicroscopicanalysisofseveraldogandcatfoods.Atthetimeofmyretention,IwasaskedtoanalyzeandlistallingredientsthatIwasableto
identify inthedogandcatfoodsprovidedtome.
Iwasnotawareofthereasonfortherequestedwork until after I completed
my analysis. I was not provided with any reasons,
hypotheses,expectations, suspicions, or goals associated with my
analysis. After completing my independentanalysis, Iwas informed
that thepurposeof the requestedworkwas toprocurean
independentandunbiased analysis and determination ofwhether Blue
Buffalo brand dog and cat foods contain
anyingredientsthatBlueBuffalosmarketingmaterialsclaimthattheydonotcontain,includingchickenandpoultrybyproductmealand,forsomeproducts,grains.IV.
SOURCINGOFANALYZEDPRODUCTSI was provided and received from Purina
by personal delivery on February 27, 2014, the
followingcommercially available products: (i) 10 sealed, new,
unopened bags of the Blue Buffalo productsidentifiedabove;and
(ii)4sealed,new,unopenedbagsofPurinadogandcatpet foodsas
identifiedabove from Christopher Purschke at Purina. It ismy
understanding that these bagswere obtainedcommercially from a PetCo
retail store inornearMechanicsburg. OnMarch 5, 2014, I
receivedbyFederalExpressanadditional14unopenedbags,duplicatesoftheoriginalfoods,fromMarkRogersatPurina.
Thepurposeofsourcingduplicateproductswas toobtainsamples
fromdifferentgeographicregions and production batches. I
transported the bags to the microbiology laboratory at
MessiahCollege,where theywere securely stored pending examination.
I personally inspected each bag
toensurethattheywerenew,unopened,andingoodcondition.TheunopenedbagswereidentifiedandtaggedonMarch12,2014.Eachcommercialproductpackagewasrandomlyanduniquelylabeledusingasimplenumberingmethod(0012014,0022014,0032014,etc.),
and matching labels were applied to product sample bags (Ziploc
brand freezer bags). Anapproximately 200gram sample of pet food was
removed and weighed from each
identifiedcommercialproductpackageandplacedinthecorrespondinglabeledZiplocbag,whichwasthensealed.Afterallofthepetfoodproductpackagingwaslabeled,andthecorrespondingsampleswereplacedandsealedintheproperlyidentifiedandlabeledZiplocbags,thecommercialproductpackagingcontainingtheremainderofthepet
foodsshippedtomewasreturnedtoa lockedstorageroom
intheMessiahCollegemicrobiologylaboratory,whereitremainsasofthedateofthisreport.ItransportedtheZiplocsamplebagstoWindsorLaboratoriesforsecureretentionandanalysis.V.
RESEARCHPROTOCOL(PROCEDURE)
PUR_000208
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ThissectionprovidesadetaileddescriptionoftheproceduresIfollowedincarryingoutthemicroscopicanalysesoftheproductsamplesidentifiedabove.Agriculturalmicroscopyisanestablished,reliabletoolfordetermining
ingredientspresent in agivenproduct,particularlywhere theoriginsof
theproductand/or its ingredientsareunknown. Byseparating
theconstituentsofagivensamplebydensityandcharacterizing the
particles by shape, color, size, softness/hardness, texture,
luster, odor and otherhistological andmorphological features using
amicroscope, amicroscopist can reliably identify
andquantifythoseconstituents
inthesamplebycomparingthemtoknownstandards. Indeed,as
Inotedabove,thistechniqueisroutinelyusedbytheFDAandothersinthefoodindustrytoidentifyingredientsinfoodproducts.ThemicroscopicanalysismethodologiesusedtoobtaintheresultssummarizedinthisReport
are the same as those I have used for the past 28 years when
performing similar analysesrelatingtononlitigationprojects.A.
PreparationoftheSamplesforAnalysisIloggedineachsamplebagbycodenumberinmylabnotebookatWindsorLaboratories,assigningeachtoanexaminationboard.Ipreparedandinspectedeachproductsampleindividuallyinordertoensurethattherewasnoconfusionormistakeregardingthespecificsamplesbeingtested.WhenIcompletedthepreparation,analysis,andrecordingofresultsforeachuniquelyidentifiedsample,Ireturnedunusedmaterialstothecorrespondinguniquelyidentifiedsamplebagandthoroughlycleanedtheareaandalltoolsemployedbeforeproceedingtothenextsamplebag.In
themajority of cases, the sampleswere comprised of kibble and dark
bits. In all such cases, Ipersonally and manually separated the
kibble and dark bit components, and then weighed
eachcomponentusinganOhausE400Danalyticalbalance.
Ithencalculatedandrecordedthepercentagesofkibbleanddarkbitsinmylabnotebook.Afterweighingeachcomponent
(kibbleanddarkbits), Isubdivided them
intocombinedquartersandoppositequartersforsamplepreparationandanalysis.
Thiswasdonebyspreadingeachsampleontoparchmentpaper,dividing
intoquadrants(upper left,upperright, lower leftand
lowerright)andthensamplingthediagonallyoppositequarters.Quarteringinthiswayisanacceptedprocedureforensuringastatisticallyvalidsample.SeeMICROSCOPICANALYSISOFAGRICULTURALPRODUCTS(2010)at3.Thisaliquotwas
then ground in a grain flourmill to crush the particleswithout
causing any damage tocellular components, and 2 grams of the ground
sample were transferred into a Coors
porcelainevaporatingdish.Allequipmentwascleanedthoroughlybeforeeachuse.Theremainderof200gramsampleswerebagged,sealedandstoredatWindsorLaboratories.B.
SampleSeparationbyFlotation:After transferring
representative2gramsamples intocleanevaporatingdishes,
Iadded6mlofa1:1carbontetrachloride:chloroformmixturetotheevaporatingdishandstirredthesample
thoroughlytoallowmineral,boneandotherheavycomponentstosettle.Itransferredthematerialthatfloatedtothetop
by pouring the CCL4:CHCL3, into another evaporating dish. The
mineral/bone fraction, typicallyreferred to as the heavy
fraction,was allowed to evaporate todryness,which took
approximatelythirtyminutes.Ithenadded2mlofpetroleumethertotheCCL4:CHCL3mixturecontainingthefloatingmaterial.
Thisaltersthedensityoftheliquid,whichcausesalessdensefractionofthesampletofloattothesurface.Thefloatingmaterialisthenpouredoffontoadryingmedium,leavingbehindamoredensefraction.Istirredthismixturethoroughly,transferredthefloatingmaterialtofiltermedium,andallowedittodry.
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Iaddedadditional2mlaliquotsofCCHL3untilnomaterial floated.
Thisprocedure resulted
in3or4densitydependentfractionsofingredientsinlightertoheavierorder.Allfractionswereallowedtodryfor
at least thirty minutes. This is the accepted method of separating
material by density
formicroscopicexamination.SeeMICROSCOPICANALYSISOFAGRICULTURALPRODUCTS(2010)at57.IthenweighedeachfractionontheOhausE400Danalyticalbalancetothenearest0.01g,recordingtheresults
inmy labnotebook. Onceafractionwasweighed,
itwastransferredontoanew,clean,blackMasoniteexaminationboardproducedatWindsorLaboratories,onwhichtheparticleswerespreadtoensureasinglelayerofmaterialformicroscopicanalysis.C.
MicroscopicExaminationoftheProductSamplesImicroscopicallyexaminedeachfraction,fromheaviestto
lightest,using
aNikonModel76210stereomicroscopeonabotanicalboomat1020X,which
isthestandardrangeforanalysisofparticlesofthistype.
SeeMICROSCOPICANALYSISOFAGRICULTURALPRODUCTS (2010) at23. Foreach
fraction, Ilisted and recorded all identified components in my lab
notebook and calculated and recorded
theapproximatepercentageofeachcomponentusingstandardmethods.SeeMICROSCOPICANALYSISOFAGRICULTURALPRODUCTS
(2010)at57. I identifiedeachcomponentbycomparing it
toareferencelibraryofknown
ingredientsandwithmyknowledgeofparticlecharacteristicsbasedonmyextensiveexperiencewith
examination of similar particles. I estimated the proportion of
each component byvisuallyestimating thepercentageofeach
typeofparticleviewed through themicroscope.
Thiswasrepeatedforeachfractionandthetotalsforeachcomponentpresentwerecalculated.In
instanceswhere Iwas unable to identify a specific particlewhen
doing this type of analysiswithcertainty, I transferred the
relevantparticle toaNikonAlphaphotYScompoundmicroscope
formoredetailed examination. These particleswere placed on a new,
cleanmicroscope slide and a drop ofmountingmedium added.
Themountingmediumused is a1:1:1
(v/w/v)mixtureofdistilledwater,chloralhydrateandglycerol,whichhelps
todisplace trappedairandallow some ingredientsof finercellular
structure to be more readily observable. See MICROSCOPIC ANALYSIS
OF AGRICULTURALPRODUCTS (2010)at5. I thenobserved theparticleunder
the compoundmicroscope (100400x) todetermine cellular structure for
identification. Identification of components at thismagnification
isbasedoncellularstructureratherthanoncharacteristicsoflargerparticles.The
samples from the examination boardswere retained for a period of
onemonth butwere
thendiscardedbecausesamplesundergoanunacceptabledegreeofdecompositionbeyondthispoint.VI.
RESULTSOFTHEMICROSCOPICANALYSISAspreviouslynoted,theidentitiesofthe28sampleswereblindedduringmyanalysis.OnceIcompletedmyanalysisandrecordedmyresultsinthelaboratorynotebook,thecodedlognumberscorrespondingto
each Ziploc bag samplewerematched to the corresponding numbers
placed on the
commercialproductpackaging.Atthatpoint,Iaddedthecommercialnamesofsomeoftheexaminedpetfoodstotheentries
in the labnotebook. Upuntil this time, Iwasunawareof thepurposeof
the
requestedanalysisofthesamplesandofanyhypothesesbeingtested.Ithencomparedthe
ingredients identifiedbymymicroscopicanalysistothe
labelsofeachdogorcatfood tested. The results ofmy testing and
analysis reveal that in some instances, the Blue Buffaloproducts
that I tested contained poultry byproductmeal, even though the
packaging indicated the
PUR_000210
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contrary.ThiswasespeciallyevidentinthetwosamplesofBlueBuffaloLifeProtectionIndoorChicken&
Brown Rice Formula. In both the original and duplicate samples, I
found approximately 2224%poultrybyproductmealpresent inthekibble.
Inboth instances Ifoundsmallfragmentsofeggshell,rawfeatherand
legscale. Further,
inseveralBlueBuffalosamples,Ifoundquantitiesofgrainpresentwherethecorrespondingproductswerelabeledasbeinggrainfree.Forillustrativepurposes,photosof
representative poultry byproduct and grain particles are attached
in Exhibit 2, a
PhotographicAppendixtothisreport.ThetablebelowsummarizestheresultsfortheBlueBuffaloproductsamples.Discrepanciesbetweenthepackageclaimandmyresultsareboldedandhighlightedinyellow.
BlueBuffaloProduct
Component %PoultryByProductMeal(Two
Samples)%Riceand/orCorn(TwoSamples)
PackageClaim
WildernessAdultChickenRecipe
(Dog)Kibble 0%,0% 0%,0% NoPoultryBy
ProductMeal/NoGrainsDarkBits 9%,11% 2.2%,1.5%
WildernessAdultChickenRecipe(Cat)
Kibble 0%,0% 0%,1% NoPoultryByProductMeal/No
GrainsDarkBits 8%,5% 2.2%,2.5%LongevityAdult
DogsKibble 0%,0% N/A NoPoultryBy
ProductMealDarkBits 2%,1% N/ALongevityAdult
CatsKibble 0%,0% N/A NoPoultryBy
ProductMealDarkBits 3%,0% N/ALifeProtectionIndoorHealth
Chicken&BrownRiceRecipe
Kibble 22%,24% N/ANoPoultryByProductMealDarkBits 2%,2% N/A
LifeProtectionAdultChicken&BrownRice(Dog)
Kibble 22%,0% N/ANoPoultryByProductMealDarkBits 0%,0% N/A
FreedomAdultGrainfreeChicken
(Dog)Kibble 0%,0% 0%,0% NoPoultryBy
ProductMeal/NoGrainsDarkBits 2%, 2% 3%, 1%
FreedomGrainFreeChickenforIndoorCats
Kibble 0%,0% 0%,0% NoPoultryByProductMeal/No
GrainsDarkBits 2%, 1% 2%, 2% BasicsAdult
Turkey&Potato(Cat)
Kibble 0%,0% N/ANoPoultryByProductMealDarkBits 2%,2% N/A
BasicsAdultTurkey&Potato
(Dog)Kibble 0%,0% N/A
NoPoultryByProductMealDarkBits 0%,0% N/A
Thefullresultsofmyanalysesoftheproductsareprovidedonthefollowingpages.
PUR_000211
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Windsor Laboratories 894 Hawthorn Avenue Mechanicsburg, PA 17055
Phone: (717) 796-0537 Fax: (717) 796-0537 Microscopic Evaluation of
Agricultural Products Members of the American Oil Chemists Society
(AOCS)
April21,2014Sample:BlueBuffalo;WildernessAdultChickenRecipe(Dog);5961000270BIUBMAR0315L12109:20
EstimatedPercent:Kibble 96.0DarkBits 4.0Sample:0012014(Kibble)
EstimatedPercent:Chicken/TurkeyMeal 36Chicken 26TotalFat
15TotalStarch 12VegetablePomace 8TotalChloridesasNaCl
0.5DehydratedAlfalfaMeal 0.2 pH=6.0Sample:0012014(DarkBits)
EstimatedPercent:Flax(Linseed) 48TotalFat 16Starch
8PoultryByProductMeal 9DehydratedAlfalfaMeal 8PeaFiber 4RiceHulls
2VegetablePomace 2TotalChloridesasNaCl 0.6GroundYellowCorn 0.2
pH=5.8
PUR_000212
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2.Sample:BlueBuffaloWildernessAdultChickenRecipe(Cat);5961000140BIUBFEB0415B310620
EstimatedPercent:Kibble 98.2DarkBits 1.8 Sample:0022014(Kibble)
EstimatedPercent:Chicken/TurkeyMeal 36Chicken 26TotalFat
15TotalStarch 12VegetablePomace 8TotalChloridesasNaCl
0.5DehydratedAlfalfaMeal 0.2 pH=6.0Sample:0022014(DarkBits)
EstimatedPercent:Flax(Linseed) 50TotalFat 16Starch
9PoultryByProductMeal 8DehydratedAlfalfaMeal 8PeaFiber 3RiceHulls
2VegetablePomace 2TotalChloridesasNaCl 0.6GroundYellowCorn 0.2
pH=5.8
PUR_000213
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3.Sample:BlueBuffaloLongevityLongevityforAdultDogs;5961000802BIUBJAN0815L13110:45
EstimatedPercent:Kibble 92.4DarkBits 7.6Sample:0032014(Kibble)
EstimatedPercent:Fish 28FishMeal 18GroundRice 16GroundBarley
15TotalFat 11Starch 10TotalChloridesasNaCl 0.5 pH=6.0
Sample:0032014(DarkBits) EstimatedPercent:Flax(Linseed) 62TotalFat
12Starch 8DehydratedAlfalfaMeal 8PeaFiber 5PoultryByProductMeal
2RiceHulls 1VegetablePomace 0.3TotalChloridesasNaCl
0.6GroundYellowCorn 0.2CalciumCarbonate Trace(
-
9
4.Sample:BlueBuffaloLongevityLongevityforAdultCats;5961000814BIUBJUN1314L13215:02
EstimatedPercent:Kibble 93.0DarkBits 7.0Sample:0042014(Kibble)
EstimatedPercent:FishMeal 32Fish 19TotalFat 17GroundRice
16GroundOats 8GroundBarley 6TotalChloridesasNaCl 0.7
pH=6.0Sample:0042014(DarkBits) EstimatedPercent:Flax(Linseed)
50TotalFat 16DehydratedAlfalfaMeal 12Starch 10PeaFiber
4PoultryByProductMeal 3VegetablePomace 2RiceHulls
1TotalChloridesasNaCl 0.7GroundYellowCorn 0.2 pH=6.0
PUR_000215
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5.Sample:LifeProtectionIndoorHealthChicken&BrownRiceRecipe;5961000087FEB0915J220439
EstimatedPercent:Kibble 91.5DarkBits 8.5Sample:0052014(Kibble)
EstimatedPercent:Chicken 28PoultryByProductMeal 22TotalFat
17GroundBarley 12GroundRice 8GroundOats 5FishMeal 3Flax(Linseed)
3TotalChloridesasNaCl 0.7Carrot 0.2 pH=6.0Sample:0052014(DarkBits)
EstimatedPercent:Flax(Linseed) 54TotalFat 17Starch
10DehydratedAlfalfaMeal 8PeaFiber 5PoultryByProductMeal
2VegetablePomace 1RiceHulls 1TotalChloridesasNaCl
0.7GroundYellowCorn 0.2 pH=6.0
PUR_000216
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6.Sample:BlueBuffaloLifeProtectionAdultChicken&BrownRice(Dog);5961000011BIUBJAN1515T481:15
EstimatedPercent:Kibble 95.5DarkBits 4.5Sample:0062014(Kibble)
EstimatedPercent:Chicken 20PoultryByProductMeal 22TotalFat
15GroundRice 15GroundBarley 10TotalStarch 8VegetablePomace
6DehydratedAlfalfaMeal 2TotalChloridesasNaCl 0.5Flax Trace(
-
12
7.Sample:BlueBuffaloFreedomAdultGrainFeeChicken(Dog);5961000680BIUBMAR1715VS06:20
EstimatedPercent:Kibble 93.8DarkBits 6.2Sample:0072014(Kibble)
EstimatedPercent:ChickenMeal 32Chicken 21TotalFat 16TotalStarch
10Peas 8VegetablePomace 7DehydratedAlfalfaMeal 2Flax(Linseed)
2TotalChloridesasNaCl 0.7 pH=5.2Sample:0072014(DarkBits)
EstimatedPercent:Flax(Linseed) 57TotalFat 16TotalStarch
9DehydratedAlfalfaMeal 8PeaFiber 5PoultryByProductMeal
2GroundYellowCorn 2RiceHulls 1TotalChloridesasNaCl 0.6 pH=5.4
PUR_000218
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8.Sample:BlueBuffaloFreedomGrainFeeChickenforIndoorCats;5961000707BIUBJAN1215P161433K14
EstimatedPercent:Kibble 95.7DarkBits 4.3Sample:0082014(Kibble)
EstimatedPercent:Chicken 32ChickenMeal 28TotalFat 14TotalStarch
14PeaFiber 6Flax(Linseed) 2DehydratedAlfalfaMeal 1VegetablePomace
1TotalChloridesasNaCl 0.58 pH=5.7Sample:0082014(DarkBits)
EstimatedPercent:Flax(Linseed) 53TotalFat 15DehydratedAlfalfaMeal
9PeaFiber 8TotalStarch 8PoultryByProductMeal 2RiceHulls
2VegetablePomace 1TotalChloridesasNaCl 0.6 pH=5.7
PUR_000219
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9.Sample:BlueBuffaloBasicsAdultTurkey&Potato(Cat);5961000727BIUBMAY0614P173733BO5
EstimatedPercent:Kibble 96.1DarkBits 3.9Sample:0092014(Kibble)
EstimatedPercent:Chicken 35ChickenMeal 24TotalStarch 16TotalFat
12PeaFiber 6Flax(Linseed) 2VegetablePomace 2DehydratedAlfalfaMeal
1TotalChloridesasNaCl 0.60 pH=5.5Sample:0092014(DarkBits)
EstimatedPercent:Flax(Linseed) 54TotalFat 16DehydratedAlfalfaMeal
10PeaFiber 7TotalStarch 7PoultryByProductMeal 2RiceHulls
1VegetablePomace 1TotalChloridesasNaCl 0.6 pH=5.7
PUR_000220
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10.Sample:BlueBuffaloBasicsAdultTurkey&Potato(Dog);5961000752BIUBMAR0515P104133MO5
EstimatedPercent:Kibble 96.1DarkBits 3.9Sample:0102014(Kibble)
EstimatedPercent:Chicken 50ChickenMeal 22TotalStarch 12TotalFat
12DehydratedAlfalfaMeal 2VegetablePomace 0.2RiceHulls
0.2TotalChloridesasNaCl 0.60DicalciumPhosphate Trace(
-
16
11.Sample:PurinaONEbeyOndSalmon&WholeBrownRiceRecipe;1780012702328160010110L04
EstimatedPercent:DarkKibble 58.7LightKibble
41.3Sample:0112014(DarkKibble) EstimatedPercent:ChickenMeal 24Fish
22TotalFat 18GroundRice 15SoybeanMeal 8FishMeal 4GroundBarley
4GroundOats 2SoyProteinIsolate 0.5BeetPulp 0.5TotalChloridesasNaCl
0.60 pH=5.8Sample:0112014(LightKibble) EstimatedPercent:ChickenMeal
25Fish 23TotalFat 16GroundRice 16SoybeanMeal 7FishMeal
5GroundBarley 3GroundOats 2SoyProteinIsolate 0.5BeetPulp Trace(
-
17
12.Sample:PurinaONEbeyOndWhiteMeatChicken&WholeOatMealRecipe;1780014418331560012305L05
EstimatedPercent:DarkKibble 58.7LightKibble
41.3Sample:0122014(DarkKibble) EstimatedPercent:Chicken
27ChickenMeal 22TotalFat 17GroundRice 13SoybeanMeal 11GroundBarley
6GroundOats 2SoyProteinIsolate 0.5BeetPulp 0.5TotalChloridesasNaCl
0.6 pH=5.7Sample:0122014(LightKibble) EstimatedPercent:Chicken
26ChickenMeal 20TotalFat 17GroundRice 12SoybeanMeal 12GroundBarley
8GroundOats 2SoyProteinIsolate 0.2BeetPulp 0.3VegetablePomace
0.1TotalChloridesasNaCl 0.5CalciumCarbonate Trace(
-
18
13.Sample:PurinaProPlanSELECTAdultGrainFreeFormula(Dog);3810015196307110820548Ll5Kibble(0132014)
EstimatedPercent:CanolaMeal 28Chicken 26TotalFat 18TotalStarch
18FishMeal 4PeaFiber 3NaCl 0.6BeetPulp 0.5
pH=5.7Sample:PurinaONEbeyOndWhiteMeatChicken&WholeBarleyRecipe(Dog);1780014936331810850201L04Kibble(0142014)
EstimatedPercent:Chicken 36GroundRice 22TotalFat 18CanolaMeal
12GroundBarley 10NaCl 0.58CalciumCarbonate 0.1VegetablePomace
Trace(
-
19
14.Sample:BlueBuffaloFreedomGrainFeeChickenforIndoorCats;BIUBSEP0514J111635
EstimatedPercent:Kibble 94.9DarkBits 5.1Sample:0152014(Kibble)
EstimatedPercent:Chicken 33ChickenMeal 28TotalFat 13TotalStarch
15PeaFiber 5Flax(Linseed) 2DehydratedAlfalfaMeal 1.5VegetablePomace
0.5TotalChloridesasNaCl 0.6 pH=5.8Sample:0152014(DarkBits)
EstimatedPercent:Flax(Linseed) 52TotalFat 16TotalStarch
10DehydratedAlfalfaMeal 8PeaFiber 7RiceHulls 2VegetablePomace
2TotalChloridesasNaCl 0.71PoultryByProductMeal 1 pH=5.7
PUR_000225
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15.Sample:BlueBuffaloLongevityLongevityforAdultCats;BIUBNOV2914L13301:12
EstimatedPercent:Kibble 90.0DarkBits 10.0Sample:0162014(Kibble)
EstimatedPercent:FishMeal 20Fish 20GroundRice 18TotalFat
16GroundOats 12GroundBarley 12TotalChloridesasNaCl 0.6
pH=6.1Sample:0162014(DarkBits) EstimatedPercent:Flax(Linseed)
54TotalFat 15DehydratedAlfalfaMeal 9Starch 8PeaFiber
4VegetablePomace 4RiceHulls 2GroundYellowCorn 1WheatMiddlings
1TotalChloridesasNaCl 0.5 pH=6.3
PUR_000226
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16.Sample:BlueBuffaloLifeProtectionAdultChicken&BrownRice(Dog);BIUBJAN1415T1C16:02
EstimatedPercent:Kibble 91.0DarkBits 9.0Sample:0172014(Kibble)
EstimatedPercent:Chicken 22ChickenMeal 20TotalFat 14GroundRice
13GroundBarley 12TotalStarch 8VegetablePomace
8DehydratedAlfalfaMeal 1TotalChloridesasNaCl 0.51
pH=5.0Sample:0172014(DarkBits) EstimatedPercent:Flax(Linseed)
52TotalFat 16TotalStarch 10DehydratedAlfalfaMeal 8PeaFiber
6VegetablePomace 3GroundYellowCorn 2RiceHulls 2TotalChloridesasNaCl
0.6 pH=5.0
PUR_000227
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17.Sample:PurinaONEbeyOndSalmon&WholeBrownRiceRecipe;400710831313L05BIUBJUL2015
EstimatedPercent:DarkKibble 54.2LightKibble
45.8Sample:0182014(DarkKibble) EstimatedPercent:ChickenMeal 26Fish
21TotalFat 18GroundRice 14SoybeanMeal 7FishMeal 5GroundBarley
3GroundOats 3SoyProteinIsolate 0.5BeetPulp 0.5TotalChloridesasNaCl
0.58 pH=5.7Sample:0182014(LightKibble) EstimatedPercent:ChickenMeal
27Fish 22TotalFat 16GroundRice 15SoybeanMeal 8FishMeal
4GroundBarley 3GroundOats 3SoyProteinIsolate 0.2BeetPulp
0.1TotalChloridesasNaCl 0.62 pH=5.8
PUR_000228
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18.Sample:BlueBuffaloBasicsAdultTurkey&Potato(Cat);BIUBSEP08142321933
EstimatedPercent:Kibble 97.7DarkBits 2.3Sample:0192014(Kibble)
EstimatedPercent:Chicken 35ChickenMeal 20TotalFat 16TotalStarch
15PeaFiber 7Flax(Linseed) 2DehydratedAlfalfaMeal 2VegetablePomace
1TotalChloridesasNaCl 0.50 pH=5.5Sample:0192014(DarkBits)
EstimatedPercent:Flax(Linseed) 55TotalFat 15DehydratedAlfalfaMeal
11PeaFiber 6TotalStarch 6PoultryByProductMeal 2RiceHulls
2VegetablePomace 0.5TotalChloridesasNaCl 0.6 pH=5.7
PUR_000229
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19.Sample:BlueBuffaloWildernessAdultChickenRecipe(Cat);BIUBMAR0215B311446
EstimatedPercent:Kibble 96.1DarkBits 3.9 Sample:0202014(Kibble)
EstimatedPercent:ChickenMeal 32Chicken 31TotalFat 18FishMeal
9TotalStarch 8RiceHulls 1DehydratedAlfalfaMeal
0.7TotalChloridesasNaCl 0.69BloodMeal 0.1
pH=5.7Sample:0202014(DarkBits) EstimatedPercent:Flax(Linseed)
58TotalFat 14Starch 8PoultryByProductMeal 5DehydratedAlfalfaMeal
7PeaFiber 4RiceHulls 1.5GroundYellowCorn 1TotalChloridesasNaCl
0.4CalciumCarbonate 0.1 pH=5.5
PUR_000230
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20.Sample:PurinaONEbeyOndWhiteMeatChicken&WholeBarleyRecipe(Dog);BIUBJAN2015319710830939L09Kibble(0212014):
EstimatedPercent:Chicken 35GroundRice 24TotalFat 18CanolaMeal
11GroundBarley 10NaCl 0.61CalciumCarbonate 0.1VegetablePomace
Trace(
-
26
21.Sample:BlueBuffaloBasicsAdultTurkey&Potato(Dog);BIUBAPR0815P200534RO8
EstimatedPercent:Kibble 96.9DarkBits 3.1Sample:0222014(Kibble)
EstimatedPercent:Chicken 48ChickenMeal 22TotalStarch 13TotalFat
12DehydratedAlfalfaMeal 3VegetablePomace 0.2TotalChloridesasNaCl
0.70DicalciumPhosphate Trace(
-
27
22.Sample:BlueBuffaloFreedomAdultGrainFeeChicken(Dog);BIUBFEB0415P011733L06
EstimatedPercent:Kibble 95.8DarkBits 4.2Sample:0232014(Kibble)
EstimatedPercent:ChickenMeal 32Chicken 25TotalFat 15TotalStarch
8VegetablePomace 8Peas 6DehydratedAlfalfaMeal 2Flax(Linseed)
2TotalChloridesasNaCl 0.7 pH=5.2Sample:0232014(DarkBits)
EstimatedPercent:Flax(Linseed) 55TotalFat 16TotalStarch
10DehydratedAlfalfaMeal 9PeaFiber 3PoultryByProductMeal
2VegetablePomace 2GroundYellowCorn 1TotalChloridesasNaCl 0.61
pH=5.0
PUR_000233
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23.Sample:BlueBuffaloLongevityLongevityforAdultDogs;BIUBNOV2614L12301:52
EstimatedPercent:Kibble 84.0DarkBits 16.0Sample:0242014(Kibble)
EstimatedPercent:Fish 25GroundRice 20GroundBarley 18FishMeal
15TotalFat 12TotalStarch 8TotalChloridesasNaCl 0.4Carrots
Trace(
-
29
24.Sample:PurinaONEbeyOndWhiteMeatChicken&WholeOatMealRecipe;BIUBJUL2015334710830419L05
EstimatedPercent:DarkKibble 51.1LightKibble
48.9Sample:0252014(DarkKibble) EstimatedPercent:Chicken
28ChickenMeal 18TotalFat 17GroundRice 15SoybeanMeal 12GroundBarley
7BeetPulp 0.2VegetablePomace 0.2SoyProteinIsolate
0.1CalciumCarbonate 0.1TotalChloridesasNaCl 0.6
pH=5.7Sample:0252014(LightKibble) EstimatedPercent:Chicken
28ChickenMeal 20TotalFat 16GroundRice 12SoybeanMeal 11GroundBarley
9GroundOats 1SoyProteinIsolate 0.3BeetPulp 0.3VegetablePomace
0.2TotalChloridesasNaCl 0.5CalciumCarbonate Trace(
-
30
25.Sample:BlueBuffalo;WildernessAdultChickenRecipe(Dog);BIUBFEB2515L12304:25
EstimatedPercent:Kibble 92.0DarkBits 8.0Sample:0262014(Kibble)
EstimatedPercent:ChickenMeal 35Chicken 28TotalFat 14TotalStarch
12VegetablePomace 7Flax(Linseed) 1.5DehydratedAlfalfaMal
0.3TotalChloridesasNaCl 0.54 pH=6.0Sample:0262014(DarkBits)
EstimatedPercent:Flax(Linseed) 50TotalFat 15PoultryByProductMeal
11DehydratedAlfalfaMeal 8Starch 7PeaFiber 3VegetablePomace
2RiceHulls 1.5TotalChloridesasNaCl 0.55Dirt&Grit Trace(
-
31
26.Sample:PurinaProPlanSELECTAdultGrainFreeFormula(Dog);BIUBSEP2014307110821052L15Kibble(0272014)
EstimatedPercent:CanolaMeal 26Chicken 25TotalFat 18TotalStarch
18FishMeal 6PeaFiber 4NaCl 0.54BeetPulp 0.5 pH=5.8
PUR_000237
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27.Sample:LifeProtectionIndoorHealthChicken&BrownRiceRecipe;BIUBAPR2415B420041
EstimatedPercent:Kibble 80.3DarkBits 19.7Sample:0282014(Kibble)
EstimatedPercent:Chicken 30PoultryByProductMeal 24TotalFat
16GroundBarley 12GroundRice 7GroundOats 6FishMeal
3TotalChloridesasNaCl 0.6Carrot 0.1 pH=6.0Sample:0282014(DarkBits)
EstimatedPercent:Flax(Linseed) 52TotalFat 16Starch
12DehydratedAlfalfaMeal 8PeaFiber 6PoultryByProductMeal
2VegetablePomace 1RiceHulls 1TotalChloridesasNaCl
0.62GroundYellowCorn 0.1 pH=6.0
PUR_000238
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PUR_000239
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EXHIBIT1CURRICULUMVITAE
PUR_000240
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1
Messiah College-Department of Natural Sciences Grantham, PA
17027
(717) 766-2511
Curriculum Vitae JAMES V. MAKOWSKI Home Address: 894 Hawthorn
Avenue
Mechanicsburg, PA 17055 Office Address:
Department of Natural Sciences Messiah College Grantham, PA
17027
Education:
1976 B.A. Messiah College (Biology) 1978-79 Trenton State
University, NSF Fellowship 1980 M.A. West Chester State University
(Biology) 1991 Ph.D. University of Delaware (Curriculum &
Instruction/ Science
Education) Teaching Experience:
1975-76 Messiah College, Teaching Assistant 1976-81 Central
Bucks School District, Senior High School Biology 1981-86 Messiah
College, Instructor in Biology 1986-1992 Messiah College, Assistant
Professor of Biology 1993-1999 Messiah College, Associate Professor
of Biology 2000- Messiah College, Professor of Biology
PUR_000241
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While at Messiah College, I have taught the following courses in
the Department of Biological Sciences:
BIO 150 Biology I (First semester Biology majors) BIO 102
Bioscience (Non-majors Biology) BIO 106 Life Science for Elementary
Education (Biological principles for BIO 114 Heredity & Human
Affairs (Ethics based genetics course for non- BIO 281 Genetics
(Introductory genetics for majors) BIO 313 Developmental Biology
(for majors) BIO 347 Comparative Anatomy (for majors) BIO 381
Microbiology (for biology majors) BIO 382 Microbiology for Health
Professionals (for nursing & pre-med majors) NSC 496 Science
Seminar (Capstone course for senior majors) IDS 101 First Year
Seminar: Science & the Media IDS 101 First Year Seminar:
Science in Science Fiction IDS 101 First Year Seminar: Science
Fiction & Society IDST 300 Genetics & Society BIOL189
Genetics for Health Professionals BIOL160 Introduction to Cellular
& Molecular Biology BIOL 260 Genetics & Development BIOL
317 Bioethics BIOL/CHEM 495 Capstone
I also am responsible for teaching BIO 407 & CHE 407
Secondary Subject Methods: Science for students majoring in biology
and chemistry who wish to become secondary teaching certification.
In addition, I supervise these students during their professional
semester of student teaching.
Additional Professional Experience:
1986-87 Hershey Foods Corporation. Consultant in Food
Microbiology, 1988 Polyclinic Medical Center, Faculty Intern to
Medical Microbiology
Laboratory, 1988 1989 Quaker Oats Corporation, Faculty Intern in
Quality Assurance
Lab, Shiremanstown, PA, 1989. Responsible for the development of
several new procedures for quality assurance laboratory.
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1987-present Owner, Windsor Laboratories a private consulting
laboratory for forensic microscopy of animal feed and human food,
as well unknown particles, etc.
Awards:
1991 Robert T Stegnar award in Science Education. Recognizes the
graduate student who has made the most significant contributions to
the advancement of science education. The University of Delaware,
May, 1991.
Publications:
Makowski, J. (1979). Nucleosomes: Intracellular chromatin
packaging units. Unpublished Research Article, West Chester
University, 1979.
Makowski, J. (1980). Autecology of the White-Tailed Deer
(Odocoileus
virginianus). Unpublished research article, West Chester
University, 1980.
Makowski, J. (1983). Concepts of Biology Laboratory Manual,
Messiah College,
1983.
Makowski, J. (1988). Problem-solving in genetics: A review.
Unpublished
Makowski, J. (1991). High school teachers' conceptions of
genetics and their
Makowski, J. (1992). The influence of curriculum content
knowledge of genetics instruction. Journal of Research in Science
Teaching, Vol 31, 2, February, 1994.
Makowski, J. (1992). A Microbiologist's View of Feed
Microbiology.
Proceedings of the American Association of Feed Microscopists,
Vol. 39, 1.
Makowski, J. (1996). The Use of Polarized Light Microscopy.
Proceeding of
the American Association of Feed Microscopists, Vol. 43, 2
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Makowski, J. (1998). Feed Microscopy: An Undervalued Quality
Assurance Technique. Inform (9), 11, November, 1999.
Makowski, J. (2000). Electrophoretic Separation of Mammalian
Hair Proteins as
a Means of Species Identification of Meat & Bone Meal
Sources in Animal Feeds. Inform (11), April 2000.
Makowski, J. (2006). Microscopy Techniques for the
Identification of Animal
Protein Products. Inform.(17), September 2006 Makowski, J., Ed.,
(2011). Microscopic Analysis of Agricultural Products, 4th
Ed., Champagne, IL, AOCS Press. Presentations:
"The Effects of Varied Instructional Strategies on Student
Problem-Solving Behaviors." Paper presented at the Annual Meeting
of the Eastern
"Inhibition of Salmonella sp. in Extruded Feeds." A Paper
presented at the Annual Meeting of the American Association of Feed
Microscopists,
"Hands-on Science Activities for Elementary School Students."
Capital Area Intermediate Unit Regional In-Service day, October,
1991.
"Classroom-Tested Recommendations for Improving High School
Genetics Instruction." Capital Area Intermediate Unit In-Service
day, October,
"The Influence of Curriculum Content Knowledge on Genetics
Instruction." A Paper presented at the Fourth Meeting of the
International Consortium
"A Microbiologist's View of Feed Microscopy."