Posted on 08/16/2007 8:29:13 PM PDT by JACKRUSSELL
A grieving cat owner has filed action in federal court to force the Food and Drug Administration (FDA) to “perform its duty” and investigate other toxins -- besides melamine -- as the culprit in this year’s massive pet food recall.
Don Earl of Port Townsend, Washington, also wants the court to order the FDA to stop what he considers “all activities (by the agency) involving the destruction of critical pet food evidence.”
Earl filed his petition for a Writ of Mandamus on August 9 in Washington’s Western District U.S. Court in Tacoma.
Barron’s Law Dictionary defines this action as “an extraordinary writ issued from a court to an official compelling performance of an act which the law recognizes as a duty.”
The dictionary adds: “It is extraordinary in the sense that it is used only when all other judicial remedies have failed or are inadequate.”
Earl says he’s exhausted all other avenues to make the FDA investigate contaminates besides melamine for the kidney problems and deaths of thousands of pets nationwide that ate the tainted food.
In March, Menu Foods recalled 60 million containers of pet food. The FDA said the imported ingredients used to make the food -- wheat gluten and rice protein -- were tainted with the chemical melamine.
FDA officials said they traced the source of that melamine-contamination to two now-defunct companies in China.
But Earl, whose cat died in January after eating some of Menu’s pet food, says the FDA has ignored other likely causes for the pet food contamination.
“The five-month investigation by the FDA into circumstances surrounding the March 16, 2007 pet food recall, to date, may only be described as whimsical,” Earl writes in his petition. He is representing himself in this action.
“From the beginning, the FDA appears to be following a predetermined script, which is based exclusively on unsupportable theories related to melamine from China. Not only does the ‘melamine from China’ theory fail in the face of all available evidence, the FDA has moved aggressively to discount credible evidence which not only refutes the ‘melamine from China’ theories, but which have every indication, if properly investigated, of uncovering the true source of toxins responsible for the deaths of thousands of companion animals across the entire United States,” he argued.
One of those toxins is acetaminophen, Earl says.
And he has lab reports that support his conviction.
In May, Earl hired a private laboratory in Texas, ExperTox, to analyze samples of Menu’s Pet Pride “Turkey and Giblets” and “Mixed Grill” cat food. That’s the brand of food his beloved cat, Chuckles, ate before she suffered kidney problems and died.
Earl says he took this action because the FDA refused to accept samples of Chuckles pet food.
“Based upon the FDA’s refusal to investigate and apparent dereliction of its investigative duties…the Petitioner began an effort to independently investigate the matter,” he states in his petition.
Earl said ExperTox tested the same styles and lot numbers of Pet Pride cat food that he fed Chuckles.
And those tests detected the popular pain killer, acetaminophen, in the food, ConsumerAffairs.com confirmed.
The tests also uncovered another chemical in the food: cyanuric acid, which is commonly used in pool chlorination.
No Melamine
But they did not detect the chemical that triggered the largest pet food recall in U.S. history – melamine.
That didn’t surprise Earl.
“Melamine has impressed me as being a red herring since day one,” he said. “The substance has been the subject of credible scientific tests and studies for decades. Nothing supports the theory it could be lethal even in amounts 10 times the highest reported to be present in the food.”
Earl says the FDA has turned a blind eye to those scientific facts -- even ones reported by the agency’s experts -- and made contradictory statements about the source of the contamination.
The agency, he says, also disregarded scientific reports that revealed other toxins contaminated the pet food.
Earl cites several examples in his petition, including:
• This comment made by the FDA’s expert, Dr. Donald Smith, during a March 30 press conference: “We have not been able to match melamine or the crystals of melamine in terms of the morphology with the identification we’re seeing visually in the clinically affected cat. I want to state once again that there’s no evidence yet to tie in the melamine;”
• This statement made by the FDA’s Dr. Steven Sundlof during the March 30 press conference that contradicts Dr. Smith: “. . . at this time, none of the independent laboratories, whether it’s the Cornell laboratory or the FDA laboratory -- have been able to confirm the presence of aminopterin (a rat poison and cancer drug) in those samples. And therefore, we are focusing now on melamine;”
• The FDA’s repeated denials of the presence of acetaminophen in samples of Pet Pride’s food, which refute ExperTox’s findings. Earl quotes FDA spokespersons who said: “We cannot validate their (ExperTox’s) findings,” and “At this point, the FDA sees no compelling need to analyze anymore samples of acetaminophen.” Earl’s petitions also points out that ConsumerAffairs.com learned the FDA only tested a handful of samples for acetaminophen and could not confirm it analyzed the same samples in which ExperTox detected the pain killer.
Evidence Destroyed
Earl’s petition also alleges the FDA “systematically destroyed” crucial evidence during the pet food investigation.
“In this case destruction would be the appropriate disposition,” he quotes the FDA’s Dr. David Elder as saying when asked about the destruction of the recalled food.
The FDA’s Web site also stated “all tainted pet food…continues to be recalled and destroyed,” Earl writes in his petition.
He adds: “That critical evidence is being systematically destroyed in an investigation of this nature and scope is unheard of.”
It’s also illegal, Earl alleges.
“…with pending civil litigation and an ongoing federal investigation in progress, this spoliation of critical evidence is a criminal offense,” his petition states. “A court order is required before such destruction may be commenced.”
Earl’s petition further alleges that the FDA’s derelict actions have failed to ensure “foods are safe, wholesome and sanitary” and protect pets and their grieving owners.
“In addition to public safety issues, the deceptive manner in which the FDA has controlled, withheld, and otherwise manipulated critical information, and destroyed essential evidence, is to the detriment of a large class of pet owners who suffered damages caused by the poisoned pet food epidemic,” his petition states.
No Comment
ConsumerAffairs.com contacted the FDA about Earl’s petition. The agency, however, did not respond.
This is the second legal action Earl has taken in the wake of the pet food recall.
In July, he filed a $72,000 lawsuit against Menu Foods and Kroger for emotional and financial damages.
The lawsuit, filed in Washington Superior Court, alleges his cat died because her food contained acetaminophen.
“According to documents and studies published by the (American Society for the Prevention of Cruelty to Animals) ASPCA, due to their body chemistries, cats are unable to tolerate acetaminophen and no amount of acetaminophen is safe for cats,” the lawsuit states.
Pet food recall and China ping.
I lost a beloved cat...I think it was due to this contamination.
I really miss that cat :-(
Purchase products that are 100% MADE IN THE USA!
Continue to take a stand and be a voice for our pets and our loved ones! Do everything you can to boycott goods made by China and this includes ingredients made in China, Chinese plant processing and Chinese exporting!
Our animals couldn’t speak for themselves.
Were they the canaries of the food chain?
We have to protect our families now.
BOYCOTT CHINA!!!!!!
Here is a list of a few items made in USA.
Made in USA
ussstuff.com
madeinusa.com
stillmadeinusa.com
http://www.coopamerica.org/programs/rs/profile.cfm?id=246
http://travel.discovery.com/Ratzenberger-America_Goods_Goods.shtml
http://www.allbusiness.com/north-america/united-states-utah/444718-1.html
I am so sorry for your loss Bobalu.
My heart goes out to you.
I say again, the US produces EVERY sort of grain at the bottom of the food pyramid VASTLY more efficiently than China or anybody else does. I cannot picture a legal way that anybody could bring any sort of food other than leechee nuts into this country from China and do anything other than lose money. The guys doing this are almost certainly engaging in criminal activity; if any family member of mine including the cat were to get hurt by this ****, I’d be really pissed.
There actually are things made in China which it makes sense to buy; food items are not amongst them.
I’m very sorry for your loss. Amazing how attached you get to them.
The guys doing this are almost certainly engaging in criminal activity; if any family member of mine including the cat were to get hurt by this ****, I’d be really pissed.
________________________________________________________
YOU COULD SAY I AM REALLY PISSED.
The first pet on video is mine. They were the canaries of our food chain.
WAKE UP AMERICA!!!!
BOYCOTT CHINA!!!!
http://www.youtube.com/watch?v=GrCvfj4g9MU
I’m so sorry. I have a cat, but luckily didn’t buy any of the contaminated brands
how would acetomenephin end up in cat food?
Good. Hang them out to dry.
(how would acetomenephin end up in cat food?)
See post # 35 for one possibility.
http://www.freerepublic.com/focus/f-news/1847902/posts
The problem is that it's very hard to tell, given the slack in contemporary labeling laws. A product might say MADE IN THE USA, but not list that it's made of god damned Chinese ingredients.
And this goes WAY beyond pet food.
Isn't about time we demanded our Congress get off the pot on this issue!
Who are they working for anyway?
Fill in a blank for me, if you can. What possible motive could the FDA have for denying that it’s acetaminophen, and claiming it’s melamine? Just don’t feel like doing their jobs, so they took a wild guess and plan to leave it at that? Or something worse?
If they allow tainted food, toothpaste, etc to go on the shelves and monsanto and GE to genetically engineer our grains and meat what is this agency good for?
“There actually are things made in China which it makes sense to buy; food items are not amongst them.”
I now check packages to make sure the food was not grown in China. I love Trader Joe’s frozen edamame but I recently noticed they are grown in China. I see a good deal of seafood being sold that was from a Chinese fish farm. Usually a good idea to stay away from any farmed seafood IMO, especially Chinese.
I too lost a pet cat to the tainted food (Special Kitty brand from Wally World...ugh! Didn’t return it tho, still have 18 pouches left.) She died 4 days before the recall. Perhaps I should have one of the pouches analyzed.
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.