BENTON – The U.S. District Court for the Southern District of Illinois has allowed a case against livestock feed manufacturers to proceed, while granting the defendants’ motion to dismiss two of the nine counts against them.

Veath Fish Farm filed its complaint against Purina Animal Nutrition and Texas Farm Products Co. alleging that the fish feed manufacturers changed the formula of their commercial fish feed without changing any representations or warranties on packaging or websites regarding the quality or suitability of the food for certain species. 

As a result, Veath alleges, several of the fish farm’s largemouth bass developed diseases and died due to improper nutrition. 

“According to plaintiff, the feed was not consistent with the representations of nutritional adequacy because of the heightened carbohydrate percentages,” wrote Chief District Judge Michael J. Reagan in the court’s opinion, filed Oct. 6.

Veath seeks compensatory and punitive damages and any other additional costs or relief the court finds proper. It charges Purina and Texas Farm with two counts of fraud under the Illinois Consumer Fraud Act (ICFA), one count of breach of express warranty (only against Purina), two counts of breach of implied warranty of merchantability, two counts of breach of implied warranty of fitness for a particular purpose, and two counts of negligence.

In considering the defendants’ motion to dismiss, the court considered the viability of each of the nine counts leveled by Veath, beginning with the ICFA claim.

Purina and Texas Farm argue that Veath’s claim under the ICFA is flawed, because the Act “prohibits plaintiffs from recovering for damage to property other than the property that is the subject of the allegedly unlawful practice,” Reagan  wrote. Because the damage was to the fish rather than the food itself, the defendants argue that the ICFA claim should be dismissed.

Veath responded, however, by pointing to a similar case in which the court allowed ICFA claims against the manufacturer of dog treats after dogs fell ill from eating bad treats. The court accepted this exception and allowed this claim to survive the motion to dismiss.

On the plaintiff’s claims against Purina for breach of express and implied warranties, the court considered Purina’s defense that the express warranty claims fail “because there is no privity of contract between it and plaintiff,” and the plaintiff “cannot state a claim for breach of an implied warranty of fitness for a particular purpose because plaintiff used the fish feed for its ordinary purpose.”

Regarding the first point, the court determined that lack of privity was not sufficient grounds to dismiss the claim, as Illinois courts have allowed such claims on the basis of products’ packaging or marketing. On the second point, however, the court did decide to dismiss the claims. 

“The products in this case - AquaMax 500 and 600 - are fish food meant for commercial fish stocks,” Reagan wrote. “Plaintiff alleges that it used the food to feed commercial largemouth bass. This use was not ‘particular’ and there is no allegation that plaintiff specifically approached the manufacturers to ensure that the product would do something above and beyond its normal advertised function.”

Finally, the court allowed the plaintiff’s claims of negligence to survive the motion to dismiss, pointing to an analogous case in which several calves died after consuming defective food. 

“Like the plaintiff in Starks Feed, plaintiff here alleges damage to its livestock - damage that is extrinsic to the allegedly defective product,” Reagan wrote. “This court finds that, in light of Starks Feed and other precedent, plaintiff has set forth information sufficient to proceed beyond the motion to dismiss phase.”

Reagan indicated the court had applied a number of exceptions to the case with varying levels of uncertainty, but held that the plaintiff’s information was sufficient to allow most of the claims to proceed.

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