February 12, 2025 • 47 mins
This explosive episode unpacks the rise and fall of grain-free pet food, the controversial roles of the FDA and veterinarians, and the largest lawsuit in American pet food history. Through shocking data and first-hand accounts, join us as we expose how fear and misinformation reshaped an entire industry. Featuring an in-depth interview with Daniel Schulof, Founder and CEO of KetoNatural Pet Foods, this episode reveals the untold story behind one of the pet industry's most elusive scandals.
Helpful Links
Check out some of our other DCM episodes:
- Think Twice! Even Bad Science Can Get Published
- Pawing Through the Research: Uncovering the Fatal Flaws of DCM
- A Mountain or a Molehill? What Science Really Says about the Incidence of DCM
- Behind the Research: Revealing the Truth About Diet & DCM in Dogs
- Diets and DCM in Dogs: Are the Answers Found in Poop?!
Looking for the research? Find BSM Partners' peer-reviewed DCM research papers here.
Follow along with KetoNatural’s lawsuit: https://ketonaturalpetfoods.com/pages/ketonatural-is-suing-hills-pet-nutrition-over-dcm-fraud
Learn more about the philosophical phenomenon of Russell’s Teacup (also called Russell's Teapot).
Show Notes
00:00 - Welcome and Introduction
02:22 – Quick Recap of the DCM Scandal
03:32 – The Rise of Grain-Free Pet Food
09:34 – Grain-Free’s Fall from Grace
11:46 – What is BEG Pet Food?
15:32 – Introducing Daniel Schulof and KetoNatural Pet Foods
20:05 – KetoNatural’s $2.6-Billion Lawsuit Against Hill’s Pet Nutrition
22:37 – The Widespread Ripple Effect of the DCM Scandal
26:11 – Inventing and Spreading a False Narrative
30:39 – Advocating for Accurate Information
32:31 – An Update on the Lawsuit
33:47 – Understanding Russell’s Teacup / Russell’s Teapot
40:13 – Schulof’s Endgame
41:49 – Summing Up the Scandal
42:46 – The Importance of Scientific Literacy Amid Misinformation
44:41 – Conclusion and Farewell
Mark as Played
Transcript
Episode Transcript
Available transcripts are automatically generated. Complete accuracy is not guaranteed.
Jordan Tyler (00:20):
On February 6th, 2024, Keto Natural Pet Foods filed
what it described as the largestlawsuit in the history of the U.
S.
pet food industry.
The suit alleges that Hills PetNutrition and a cluster of affiliates
fabricated the high profile controversyover dilated cardiomyopathy or DCM
in an effort to get pet parents toabandon certain dog foods and switch to
(00:44):
more mainstream or traditional diets.
These terms in air quotes as they'rearbitrary at best and lack any kind of
true scientific or regulatory definitions.
In the initial complaint of thelawsuit, Keto Natural Pet Food
states, In the four years immediatelypreceding the controversy, so 2013
to 2017, Hill's annual revenuesgrew by a total of only about 1%.
(01:09):
But, in the five years since thecontroversy began, so 2018 to 2023, the
company's revenues nearly doubled to 4.
2 billion.
This lawsuit is the culmination of aseismic shift in the industry, stemming
from unsubstantiated science from a groupof veterinarians and a premature public
announcement by the FDA that led the grainfree pet food industry into disaster.
(01:35):
And some even speculate the ordealgave rise to large, multinational
kibble brands who were losing marketshare to some of the more emerging
pet food formulation philosophies.
But how did we get to this point?
In today's episode, we explore therise and fall of grain free dog food,
the pronounced impacts felt across thepet food industry, from farmers and
(01:58):
brands all the way through retailers andconsumers, And we'll share how one legally
savvy pet food entrepreneur is seekingjustice for his brand and the many others
harmed as a result of the DCM debacle.
Welcome to Barking Mad, apodcast by BSM Partners.
I'm your host, Jordan Tyler.
(02:23):
Now, before we get into it, let'squickly recap the DCM controversy.
So, in 2018, a group of veterinariansvoiced concerns about increased
incidences of DCM in dogs.
In many of these cases,grain free dog foods were
implicated as a potential cause.
Even though the industry lackedany data to prove that grain free
(02:43):
diets were particularly good or bad.
Now, these veterinarians reported whatthey saw to the FDA, who then called
on the public, essentially saying, ifyou have a dog with DCM that's eaten
grain free dog food, let us know.
Unsurprisingly, This call wasanswered with widespread concern and
panic and led to the FDA eventuallypublicly naming 16 grain free dog
(03:08):
food brands linked to cases submittedby veterinarians and pet parents.
And ultimately, this resulted in thedemonization of pulse ingredients
like peas, lentils, and legumesin pet food, and the downfall
of grain free as we knew it.
Now, obviously, there is much morenuance to this story, and we'll get
(03:29):
to that throughout this episode.
But to really paint this pictureand all the messy, mind boggling
misconceptions that contributed toit, let's start at the very beginning,
the rise of grain free pet foods.
To understand the trends that drovesuch widespread acceptance of these
formulas, we spoke with BSM Partnersconsumer strategy expert, Michael
(03:52):
Johnson, who details the interestinginclinations among pet food shoppers
and veterinarians when it came tograin free in the early 21st century.
Now, to be clear, these diets were seenby many as a beacon of health and wellness
before the FDA's announcement in 2018.
So let's hear from him abouthow these diets went from
(04:15):
shining examples to scapegoats.
Michael Johnson (04:19):
So the story of pet products in this country
has always been kind of onwardsand upwards in terms of quality.
So in a very broad sense, it was justthe right time for this kind of food.
Specifically, however, therewere a number of factors that set
the table for grain free growth.
Veterinarians, for one, oftenrecommended grain free foods
(04:39):
for pets with grain allergies.
And grain free also aligned withhuman diet trends of the day.
Things like low carb, Atkins,gluten free, so on and so forth.
Contemporary pet product marketingwas starting to lean into trends
like no corn, no wheat, no soy.
And ancestral diets, these high proteinand low or no grain formulations, made
(05:01):
grain free foods seem more naturaland certainly more instinctive.
On top of that, grain free foods werepositioned as very premium products,
which gave them cachet and madethem more desirable to consumers.
Jordan Tyler (05:16):
We also spoke with Dr.
Katie Miller, BSM Partners, who wasworking in pet retail at the time of
the FDA's initial DCM announcement.
She recalls store shelves stockednearly exclusively with grain free
options in the years leading up to 2018.
And this was largelydue to consumer demand.
Dr. Katy Miller (05:41):
Just like different people have different
nutritional requirements, so do dogs.
And so, some dogs just do betteron a grain free food than they
did on a grain inclusive food.
So, it started to turn the tides whenthey kind of came out as an option because
there were dogs that, did do betterif they had an intolerance to certain
(06:03):
ingredients or they had skin and coatissues or some GI issues really responded
well to being on a diet that didn't havegrains in it and so the grain free foods
became that option to be able to stillfeed the kibble but be able to get some
of the Benefits that some pets saw in it.
(06:25):
Veterinarians were recommendinggrain free foods to treat a
lot of different problems.
Grain free became what consumers wanted.
So when you looked at the store.
The store looked like it supported grainfree foods as being a healthier option
only because there were so many optionsto choose from because it had such
(06:47):
huge growth in demand by the customer.
That became a lot of what was onthe shelf because grain inclusive
foods just wouldn't sell.
We had a large call for gluten free foods.
There's one breed of dogs that havea gluten sensitivity and the rest do
not, but people think that becausethey're gluten intolerant that their
dog might be gluten intolerant.
Jordan Tyler (07:09):
This common misunderstanding highlights another point that
helped drive Grain Free to success.
which is a lack of researcharound not only grain free
diets, pet nutrition in general.
And this lack of research perpetuatesa general lack of consumer
understanding when it comes to what'sbest for our furry friends to eat.
(07:33):
According to Dr.
Bradley Quest, principal of veterinaryservices at BSM Partners, when we don't
fully understand the cause of something,it's anybody's guess as to whether an
intervention, like changing the diet,
Dr. Bradley Quest (07:49):
And then the other part of it is, uh, as folks come into,
to veterinary clinics and they havedogs who have, Or pets in general, dogs
and cats who have different types ofallergies, whether it's environmental
allergies or actually true food allergies.
Veterinarians are looking for etiologiesor causes of these allergies, whether it's
(08:09):
the skin symptoms or it's GI symptoms.
And, you know, kind of building on whatKatie said, some dogs actually responded,
um, to some of these diet changes.
Now, was it because theyactually had a food allergy?
Or was something else changed?
When you change multiple things, you neverknow exactly what the, you know, thing
that caused the condition to improve.
(08:31):
So in a way, you know,veterinarians may have pushed this.
Jordan Tyler (08:35):
So you can already see a bit of a whiplash happening here.
First vets thought grain free wasall the rage, the pinnacle of health.
Later it became a scapegoat fora perceived issue that may not
have even been as sizable asit seemed in the first place.
Michael Johnson brings up anotherinteresting early 21st century mishap
(08:55):
that could have tipped the scales towardgrain free, and also illustrates why
pet nutrition is such an emotionaltopic for pet lovers like you and me.
Michael Johnson (09:05):
In 2007, the pet food industry had a massive melamine recall.
I think over 150 brands were affected.
This crisis was due to contaminated wheat,gluten, and rice protein in pet foods.
And this led to acute kidney failurein likely thousands of dogs and cats,
and it made international headlines.
(09:25):
This incident was a tipping pointin the pet industry, and it led to
enhanced safety and regulatory reforms.
But it also led horrified consumersto seek natural and grain free
food options because they seemedmore safe, and it really propelled
this premium food format forward.
The average pet owner wants to doright for their pets, for the best
(09:46):
of their understanding at least,but they're not scientists, and
they're certainly not nutritionists.
Bad news travels very fast, andhumans can be quite reactionary.
So when all of the sudden pet ownerswere starting to hear that grain free
foods may be causing heart issues intheir pets, They did what people do, and
they began skifting purchase behaviors.
Jordan Tyler (10:06):
This was evidenced in a pet food industry article that quoted work
by Nielsen IQ, a leading market researchfirm, which shared that grain free pet
food sales, which were burgeoning in the2010s, began slowing toward the end of
2018 and continued to slide as each newDCM update was released through 2020.
(10:28):
Remember the 16 brands that were named inthe investigation in the summer of 2019?
Well, those brands would go on to seedouble digit declines in grain free
sales by the end of that same year.
Interestingly, some of these brandsalso sold grain inclusive pet foods.
But their sales in that category alsofell due to the reputational damage they'd
(10:52):
suffered as a result of the investigation.
This story was seen, played out inreal time in pet retail stores as
explained by both Michael and Dr.
Katie Miller.
Dr. Katy Miller (11:03):
We got a mad rush for anything that had grains in it, which
unfortunately at the time we were at aloss 'cause we didn't have very many grain
inclusive diets in the store because.
They just didn't sell before this andthen after that it exploded and we
had to shift the whole store to havemore grain inclusive, ancient grains,
(11:25):
grain friendly, all these differenttypes of diets that just included
grain because that's what customerswere coming in and looking for now.
Jordan Tyler (11:34):
The DCM debacle didn't just impact the grain free category.
In fact, this argument wasstrategically adapted to demonize
an entire swath of the industry.
This comes back to the BEGpiece I mentioned earlier.
So leading up to the FDA announcement,BEG or BEG diets, which stands for
(11:54):
Boutique Exotic and Grain Free, weredefined as Quote, non traditional,
by the same group of veterinarianswho started the dialogue around DCM.
And let's just take aminute to break that down.
If you think about the termtraditional, that feels comfy, right?
That feels familiar.
(12:14):
Then you have a non traditional,which typically carries a
more negative connotation.
Maybe it feels a little lesscomfortable, a little more unfamiliar.
So you could see how calling boutique,exotic, and grain free diets non
traditional incites a sense ofdiscomfort and even distrust, maybe
a disruption to the status quo.
(12:36):
And this can largely be seen as a fearmongering tactic that contributed to the
public's shift away from certain typesof diets and, as a result, the smaller
and medium sized brands that make them.
Dr. Bradley Quest (12:49):
I think this was one of the UC Davis studies
where they were using, I think,traditional and non traditional.
Literally, there was onlythree manufacturers that could
be in the traditional group.
It was Mars, Nestle, and Hills becauseit was all based on dollar sales.
And they were the only three companiesthat would meet that threshold.
And it can only be kibble.
So that's the only, the only diets.
(13:09):
Everything else was in non traditional,so that could be everything from,
uh, kibble diets that were, you know,made by, we'll say, medium sized
companies or even relatively largecompanies that weren't in the top three.
Everything down to raw diets that weren'teven nutritionally complete and balanced.
It was such a poor study design thatit actually invalidated any conclusions
(13:34):
that the authors made out of that study.
What is a boutique for the petfood company is anybody's guess.
What is an exotic pet food ingredient?
Same thing.
It's anybody's guess.
Those are not regulatory terms.
They mean nothing.
The G is in grain free.
I guess that's Relatively selfexplanatory, but to categorize diets based
(13:55):
on just made up nomenclature, I mean it,it's, it really has no place in research.
Jordan Tyler (14:03):
In other words, the concept of BEG pet food is not only
unfounded, but those who coined itare misleading consumers down a path
that is based more in conjecturethan it is in scientific evidence.
Now, 16 brands were calledout in the FDA's announcement.
And these brands, along with othersthat fell within the BEG category,
(14:27):
however fictional it may be, quicklyfound themselves on the wrong side
of unsubstantiated messages thatpulse inclusive pet foods could
lead to diet induced DCM in dogs.
The founder of one of these brands,Daniel Shuloff of Keto Natural Pet
Foods, saw the impact this had across theindustry, as well as for his own company.
(14:47):
And instead of throwing in the towelor turning a blind eye, He doubled
down and dedicated countless hours tounderstanding what he believes are the
true motivations behind the DCM debacle.
Daniel's background as a lawyerhas put him in a unique position
to champion brands and individualsnegatively impacted by this ordeal.
He's doing this througha class action lawsuit.
(15:10):
filed against Hill's Pet Nutritionin February 2024, which alleges
that Hill's Pet Nutrition and acluster of affiliates fabricated the
high profile controversy over DCM.
But long before Daniel became a petfood entrepreneur and activist, he
became, like many of us, a dedicateddog owner, a labor of love that
(15:31):
ultimately led him to write a book.
Dogs, dog food, and dogma, an in depthinvestigation of the science and business
of America's pet obesity epidemic.
It was in part due to his experiencewriting this book that he began looking
closer at the pet food industry andultimately launched his own brand.
Daniel Schulof (15:53):
So circa 2011, I was a practicing lawyer.
I worked at one of the biggestlaw firms in the world doing
intellectual property litigation.
I got my first dog, and I waskind of this like, single, yuppie,
city dweller, got my own dog.
He was a Rottweiler, and he was kindof like, quintessentially Rottweiler
(16:14):
y, in that he was intense, and big,strong dog, protective instincts.
Super high drive.
And, you know, one of the things thatmeans is that he needed a good bout
of daily exercise every day in orderto become a polite member of society.
Right.
As I was doing that, like I, bigpart of my career and I guess my
(16:35):
personal interests at that pointinvolve like reading a lot of.
Scientific stuff, kind of like when youdo intellectual property litigation,
you're often litigating cases againstscientists or with your own scientists.
And I think between that and myown just personal background, I
went into the dog rearing processwith like a scientific bent.
(16:58):
And so when it came time to figureout how do I exercise this dog
effectively, that's kind of where I went.
And I went to PubMed andI tried to understand.
Alright, what's the bestway to exercise this guy?
What's the most efficient way?
Et cetera, et cetera.
And through the course of doing that,I learned about the problem of obesity
among pets in the Western world.
Here are the two facts that blew meaway that I always remind folks of
(17:22):
when I talk about the scale of thecompanion animal obesity problem.
One, it's the norm, okay?
In the United States, there are moreoverweight or obese dogs and cats than
non overweight or obese dogs and cats.
You pick one, the next one you see atrandom, more likely to be fat than not.
So it's very common.
(17:42):
Second, it's really, really,really, really bad for them.
And the way I like to express it iswhen, you know, folks have, uh, studied
the impact of obesity on longevity indogs to some degree, they've studied the
impact of smoking on the longevity ofhuman beings a lot, well, it turns out.
that the impact of being moderatelyoverweight on expected lifespan in
(18:03):
dogs and cats is significantly worsethan the impact of smoking every day
from the time you're 18 years olduntil the time you die in human beings.
Your expected lifespan will go downby more if you're a fat dog than if
you are a lifelong smoker in people.
And it just kind of blew me awaylike how could this be that this
common thing everybody I love mydog everybody loves their dog.
(18:25):
And I just sort of started followingthe rabbit hole further, and I
became obsessed with it, honestly.
And I spent four yearswriting, working on a book.
I eventually quit my jobworking as a lawyer so I could
work on the book full time.
And it's my attempt toexplain this weird thing.
How could so many dogs,cats in the country be fat?
The main thesis that I put forth in thebook, that I believe in strongly, is that
(18:49):
carbohydrate is the fundamental cause,the fundamental underlying, single,
primary cause of obesity in dogs and cats.
You wouldn't have an obesity problemamong dogs and cats if carbohydrate
wasn't the s Backbone of the US petfood industry and I make the case in
the book and so after that I foundeda company once the book was out there.
(19:09):
You know, for people that read thebook and felt persuaded or people that
came to the same conclusion in theirown mind, thought I'd make products
for people that agreed with me, pickproducts that I wanted that weren't in
the market, which is to say very lowcarbohydrate kibble style products.
So I founded a company calledketo natural pet foods in 2017.
We make the lowest carbohydrate,highest protein kibble products
(19:31):
for sale in the United States.
And we've been doing our thing since then.
And, um.
That's sort of my weird,how I transitioned from one
to the other, uh, story.
Jordan Tyler (19:43):
The question of carbs in pet food is an interesting one, and requires
at least some level of understandingof how pet food, particularly dry
pet food or kibble, is formulated andmanufactured, as highlighted by Dr.
Katie Miller.
Dr. Katy Miller (19:59):
There was some misconception where people felt like grain
free foods equals carbohydrate free foods.
And so we were starting to say,well, dogs don't need carbohydrates.
They have no nutritionalrequirement for them, so they
don't need them in their food.
But you do need it to make a kibble.
And so, some people mistakenlyfelt like if dogs don't need
(20:24):
carbohydrates, they don't need grains.
Which is true, they don't needgrains, but they also don't need
what we put in place of grains, whichwere legumes and peas and tubers,
like, they don't need those either.
But we do need them tomake a kibble shape.
Unfortunately, some people misunderstoodthat as being, well, that's a low
carb diet is because it doesn't havegrains and that isn't necessarily true.
Jordan Tyler (20:50):
All that to say, it is absolutely critical that brands educate
their consumers about what they'rereally feeding and that this education
is backed up by scientific research,feeding trials, and efficacy data.
This is how we can avoid future mishaps,similar to what we saw with DCM.
(21:10):
Now, bringing things back to thelawsuit, Daniel was eager to discuss
the details, and while the suit is stillin its early stages, there could be
significant impacts for the industry,depending on the court's ruling.
Daniel Schulof (21:23):
One of the things that we're alleging and proving up
in the course of the litigation isthat we've been damaged by misconduct
that relates to the TCM issue.
One of the issues in the litigationis, well, how much, how do you
quantify that damage, okay?
And our lawsuit is a class actionlawsuit, which means, for the listeners
(21:43):
that don't already know, what we'reessentially asking the court to do
is let us Keto natural pet foods, mycompany represent a bunch of other
companies that are in a similar position.
They've been damaged throughthe same legal theory.
And so the issue is not in thecase is not only how much have
I been damaged, but how much hasthe industry broadly been damaged?
(22:05):
One thing I will say is that tothis day, Keto natural gets customer
service tickets from consumers or.
Would be consumers that say essentiallysome version of the following.
I want your product.
It sounds great to me, or I am feedingyour product to my dog already.
And it is going great, but I went tothe veterinarian the other day and
(22:28):
they told me I shouldn't do it anymore.
Or I shouldn't try the product in thefirst instance because of DCM like we
get those kind of tickets today We gotmore of them in the period where DCM was
still in major media headlines when itwas 2018 2019 we were a smaller company
then but the issue was a bigger Impacteda greater percentage of our customers,
(22:51):
but it's still a thing today One thing Ican highlight is the market research for
Nielsen in the 2018, 2019, 2020 period haddone a good deal of kind of industry wide
research on the impact of the DCM scandal.
And I know that in 2019 alone, estimatedkind of took more than a billion dollars
(23:13):
out of the grain free industry, thatthe growth trajectory that the grain
free side of the industry was on.
Prior to DCM and then the trajectory thatit was on after the FDA announced its
investigation that the delta there wasmore than a billion dollars and that's
like in, you know, the first 12 months.
So you're talking about areally, really major number.
(23:34):
It looks like the damages.
in our case are at least 2.
6 billion.
That's what we think at least thedamage associated with the misconduct
in the lawsuit represents here.
So you're talking abouta huge, huge number.
It's, it's difficult tooverstate the impact of DCM.
(23:54):
And
Jordan Tyler (23:59):
I'm assuming those numbers don't even touch the impacts that were
seen across the pulse industry, whichhad gotten a huge bump when grain
free diets started to gain popularity.
Like I remember when we talked toTim McGreevey of the American Pulse
Association, and he described a hugedevastating impact from DCM that rippled
(24:20):
all the way back to the family farmerswho grew and tended the ingredients
that constitute grain free pet foods.
So peas, lentils, legumes, and the like.
And so when you're thinking about theoverall impact of DCM, You really can't
isolate it to the pet food companiesthat were named in the FDA investigation.
You also have to consider otherquote unquote BEG brands that
(24:44):
were affected, as well as farmers,ingredient manufacturers, retailers.
I mean, really, it'sthe whole value chain.
Daniel Schulof (24:52):
You're exactly right.
The farmers that are responsible forcreating the ingredients that are
used in the products, the associationsof those ingredient suppliers, the
folks that are involved in makingthe products, selling the product.
In the United States, in theWestern world, there's a, uh, you
know, a kind of specific channel.
That is devoted, disproportionatelydevotes its product line to the BG
(25:16):
type of product, which is an Americanpet specialty retailers, the mom
and pop pet stores that carry thebetter for your dog type of brands.
DCM became a thing.
It was a.
Big, big deal right whenCOVID was a big, big deal too.
And so a lot of those stores, I knowfolks personally that had to close their
(25:37):
stores because of the one, two punchof DCM and COVID there was a chain of
pet retailers called, uh, independentpet partners was one of the largest.
Pet specialty chains in theUnited States doing something like
200 million in revenue in 2022.
(25:57):
I believe they're one of thefastest growing pet specialty
retail chains in the United States.
2022 they filed for chapter 11.
Well, what happened?
You go look up the chapter 11filings and they'll tell you why
they went bankrupt more than COVID.
The first thing they list is theDCM controversy drove one of the
largest pet specialty chains inthe United States into bankruptcy.
(26:19):
This is as big an impact as it could be.
And then the last group that it'simportant to, anytime you're having this
conversation to mention is individualpet owners and the pets that they're
charged with, you know, taking careof that's part of the reason why the
veterinary community has so uncriticallyaccepted the notion that BEG equals DCM.
(26:43):
At least in my experience, like,kind of like logic that I hear vets
articulate around why they say stayaway from BEG is essentially like this.
Well, look, we don't know whetherthese things cause DCM yet.
The jury's still out.
We gotta figure that all out.
But it might, might not.
Some people say it does,some people say it doesn't.
(27:03):
But we know there's no real benefit.
So since there's no benefit,and there might be something
bad, therefore stay away.
And I think vets, a lot of vetshonestly believe that, and I think
that it's a really, uh, not nuancedat all understanding of the reality.
Jordan Tyler (27:22):
Coming back to the BEG piece, these brands were particularly
vulnerable because as Daniel and Dr.
Quest explained, this categoryis made up of smaller and medium
sized companies for the most part.
So it's interesting to understand thiswhole ordeal as, instead of a battle of
truth, More of a battle of semantics.
(27:46):
You know, it's almost like peoplewere more concerned about how to
frame the issue than getting downto the actual root cause of it.
Daniel Schulof (27:53):
Different people that have played a role in organizations
in the DCM controversy kind ofcharacterize this somewhat differently.
When the FDA first announced itsinvestigation into DCM in 2018, it
generally got reported in the media asthey're investigating grain free products.
The FDA didn't actually use thatlanguage, to the best of my knowledge.
(28:16):
Knowledge specifically, but they diddefine it in terms of ingredients
that they were looking at.
And they're the ingredients that aremost commonly found in grain free diets.
And so in the New York Times,Washington Post wrote stories about it.
Grain free was kind ofhow it was framed up.
Within a year later, Some of thefolks that played an important role
in the FDA's investigation, veterinaryacademics that are in practice at major
(28:39):
research universities, published apaper and put out a bunch of consumer
facing writing where they defined thegroup of products somewhat differently.
They described it More broadly as whatyou, you mentioned BEG diets, which
is an acronym, standing for boutiqueexotic ingredient or grain free.
So it's inclusive of everythingthat's grain free, but it's also
(29:00):
larger than that because it includesboutique, which is to say made by a
manufacturer that is not colossal.
Or exotic ingredient, which isparaphrasing, but like the woman who
coined this term came up with thatin her judgment constitutes exotic.
And so when the FDA announced itsinvestigation at DCM, we're talking
about one massive already group ofproducts, but then later some folks
(29:24):
tried to even expand that and make thegroup not just larger, but more diverse.
To say grain free, like you noted,is to describe a category that's
massively diverse in the first instance.
There's not a great deal of commonality,and there's a ton of variance.
Well, boutique exotic ingredient orgrain free is so diverse that it knocks
(29:47):
you over the head with, how could thischaracterization be a fair, accurate,
like, give me a nutritional quality.
Or any kind of substance quality,ingredient quality, nutritional quality,
something that all those products share.
Just highlight one.
Like there has to be one ifyou're going to defend the
thesis that that's the problem.
(30:08):
They have to share something in common.
What is it?
No, there's nothing.
Jordan Tyler (30:12):
This is interesting for several reasons.
But first, the general public'sreaction to the DCM scare led to the
creation of several large communitiesof veterinarians and pet parents who
had either been impacted by DCM or werescared by it and wanted to know more.
One of these communities is a Facebookgroup that has more than 130, 000 members.
(30:35):
And the facilitators of the group haveprovided recommendations to its members
on what pet foods are safe to feedfor pet owners concerned about DCM.
Interestingly enough, the onlydiets recommended in this particular
Facebook group are manufactured bythree of the largest multinational
pet food companies that exist today.
(30:57):
So if Daniel's thesis iscorrect and the DCM debacle was.
Truly manufactured as a profit grabby big industry players, a ruling in
keto natural pet foods favor would beunprecedented, earth shattering, and
could possibly cause a lot of people towalk back on their prior assumptions.
Daniel Schulof (31:20):
When the FDA announced that it had begun an investigation
into whether grain free dog foodswere giving dogs DCM, I think a fair
number of folks in the industry, itlike, didn't smell right, right away.
Immediately there were things thatI noticed at least that were like
suspicious, you know, like at that time2018 I'd already, I'd spent four years
(31:40):
writing a book about the overlap betweenPet food industry, clinical veterinary
practice, regulatory world, all that stuffand how misinformation spreads within
it, I was able to recognize some thingsthat maybe escaped the lay person's.
You know, observation, but there arethings like names of people that I
wrote about in my book who I wroteabout critically was that I think
(32:03):
they did some stuff wrong here.
Oh, I see their names in theFDA in the media about this.
That's interesting sign.
I see like a sort of tactical similaritythe way that the like TCM issue is
being framed up in the early stages.
was consistent with how similartypes of issues had been put out,
(32:25):
in my estimation, in the past inlike really similar instances.
If you go to a veterinarian's officetoday, and you ask them, what do you think
about raw diets, raw diet for my dog?
What your vet will probably tell youis Well, there's no evidence that
they're any better, and there is someevidence that they might give your
dog some kind of foodborne pathogen.
(32:45):
Therefore, we reallyrecommend that you stay away.
It's like that, as a matter oflike, how the argument is made,
looks exactly like the DCM argument.
And that's, that's just oneof several other issues that
are framed up in that way.
And then of course, I was runninga company, young company, just
trying to get off the ground,that's getting defamed by this.
So I grew very interested init, I grew very skeptical of it.
(33:08):
I took a few actions inlight of the skepticism.
One thing is, I tried to get a articlethat you probably have talked about on
this show that was published in Journalof the American Veterinary Medical
Association, tried to get it retracted.
But it was a editorial about DCMthat included a whole bunch of
factually inaccurate information.
It was able to get published in thejournal anyway because it wasn't
(33:30):
peer reviewed, and I made the casethat it ought to be retracted, um,
and I ultimately lost the fight.
But a second thing that I did is,um, like I said, I'm a lawyer.
I know something about the law.
One of the things I know about iscalled the freedom of information act.
Freedom of information act is a law,federal law that says in essence, the
government has to show you their records.
(33:50):
If you ask them for it, it'sgot a bunch of exceptions.
They can't ask them foryour social security number.
I can't ask for nuclear codes, butgenerally speaking of them, some don't
fall into one of those exceptions.
They got to give it to you.
So I'm suspicious about the DCM thing.
I say to the FDA, in essence, I have aFOIA request, give me the entire DCM file.
I want to look at it.
They say, no, we don't have to do that.
(34:11):
They try to claim it's an exception.
It falls into an activeinvestigation exception.
It's a, it's a nonsense argument.
There is a real exception for ongoing.
Criminal investigations, like ifI'm being investigated for murder,
I can't be like, Hey, FBI, give meyour whole file on me because it
compromises the investigation, right?
But this is not an investigationin that kind of sense.
(34:32):
And so they tried to make that argument.
So I sued them and I won.
And so they said, fine,we'll give you the file.
When the US government says we'regoing to give you a huge file,
tens of thousands of pages ofdocuments takes a really long time.
I'd get a new CD, another 500, 000documents every six weeks for three years.
And I eventually sifted throughall of them and categorized them
(34:53):
and looked at what everything said.
And there is, within that, that corpus ofdocuments, smoking gun evidence of fraud.
What do you do with that?
File a lawsuit to try to hold accountablethe people that committed the fraud
and try to get them to pay for thedamage they've caused to everyone else.
That's what the justice system is for.
(35:13):
And so that's, that's howthe lawsuit came about.
Jordan Tyler (35:16):
Okay, so this lawsuit was filed in February 2024 in
the District Court of Kansas.
And on November 5th, 2024, the courtdismissed the suit on the basis
that the initial complaint filed byKeto Natural did not contain enough
specific factual details to supportthe claims made against Hills.
(35:37):
Daniel and his team are notready to throw in the towel.
And honestly, when I followed upwith Daniel, he only seemed more
impassioned to move forward, whichis why they have appealed the case
in the 10th Circuit of the UnitedStates Court of Appeals in Denver.
Daniel Schulof (35:52):
What that means is that for the next It's somewhat unclear.
There's not a fixed timeline, butsomething like six to 12 months, you
know, it's going to be pending atthe 10th circuit and we'll go through
the process of making argument.
They'll make their argument.
Um, it'll be narrowly tailoredto just have to do with this one
decision that the trial court reached.
(36:14):
Uh, if the court agrees with usand overrules the trial court's
decision, then it'll go back tothe trial court and the trial court
will have to let it go forward.
If the court agrees with the defendant.
Then we will have an opportunityto appeal that as well to the U.
S.
Supreme Court.
Jordan Tyler (36:31):
So help us understand why exactly the suit was dismissed
in the District Court of Kansas.
I read the brief, but oh man, Idon't read legalese very well, so
I'd love to get your take on it.
Daniel Schulof (36:44):
This was them saying, look, as a matter of law, there are some
things here that should prohibit thiscase from going forward, even if these
guys can prove up everything they've said.
What this case is, at its core,is a false advertising lawsuit.
What we have alleged, there's a law,a federal law in the United States.
That says false advertising isprohibited and there's a whole body
(37:07):
of case law that's developed toexplain Well, what does that mean?
What it will constitutes falseadvertising, but in essence there are
kind of like two Main elements of it.
There's the false part and the advertisingpart they made some degree of arguments
pertaining to both of those two generalelements and one of the things about
(37:28):
this case is that like the advertisingcomponent of it is not a slam dunk like it
ought to be that like I believe that withall my heart but at the end of the day
we're not talking about commercials thatthe defendant put up that say DCM is real.
Don't feed keto natural pet foods,feed hills instead, because otherwise
(37:52):
your dog is going to get DCM.
What we had was different.
We had a whole range of differentkinds of statements that in one way
or another amount to advertising in myjudgment, but aren't garden variety.
center of the target advertising,like the advertising side,
okay, I can see the arguments.
It's ultimately withinthe court's determination.
(38:15):
The court's not really so constrained bythe facts of the case that they've got a
rule in one way, reasonable people, somefraction of every 10 people, some number
of them might side with the other side.
element.
On the other hand, I never reallythought we could lose because at the
(38:35):
core of the case is the false statementthat DCM is associated with BEG diets.
I never thought we could lose on thefalsity element because that is false.
There is no evidence.
There's never been a study carriedout where the finding was that DCM.
(38:59):
Therefore, it's false.
Therefore, I'm not tooworried about that issue.
If you've read the court's decision,you'll know already that the court
actually didn't take that position.
The court ruled that this, in this eyesof false advertising law, the statement
DCM is associated with BEG diets.
(39:21):
Is not literally false.
And, um, as a result, grantedthe motion to dismiss.
That's not something that's like subjectto interpretation and legal analysis.
It's just factual stuffstraight up as such.
I can say with a great degreeof confidence that unlike any
(39:42):
of judgments about advertising.
The court got that wrong.
In essence, what the court did, thereasoning that the court used to reach its
conclusion that it's not literally falseto say DCM is associated with the EG diets
is, um, the court essentially said, look.
It's always possible.
(40:03):
You can't prove beyond a doubt thatthere's never going to be any evidence
that's going to come forward that's goingto show that actually it is associated.
And then unless you have ironcladevidence that it isn't associated
with BEG diets, then you can't sayit's literally false to say it is.
(40:23):
That kind of logic is, um, something thatis like an error of scientific reasoning.
That's taken place for a long time, longenough to have its own Wikipedia page.
Um, the Wikipedia page is calledRussell's teacup, but it's sometimes
(40:43):
also like more offhandedly called youcan't prove a negative, but the Russell's
teacup thing, the name for that.
Yeah, it comes from the likesuper British philosopher Bertrand
Russell, who, you know, is a megafigure in Western philosophy.
And what he said was, in essence, ifsomebody says to you, Hey, you know,
(41:06):
Jordan, I figured out there is a full,you know, eight ounce cup of Earl Grey
tea in a porcelain teacup orbiting theearth 35 miles beyond the atmosphere.
That there is no amount of evidence thatany form of scientific experimentation
(41:29):
can produce that will absolutelydiscredit that statement conclusively.
You could always, I could say look I spent100 years working with SpaceX and the, you
know, Hubble telescope and everybody else.
And we looked everywhere therewas that we could come up with.
And we found no evidence of the teacup.
(41:50):
That doesn't amount toevidence of no teacup, right?
There's always the possibility that,well, we just didn't look in this one
other corner and maybe it was right there.
And the court made that error of logic.
And it's ruined.
Um, and as a result, dismiss the case.
Jordan Tyler (42:08):
Yeah, I guess kind of my two cents is if we took that
approach for everything, then itwould all be a cop out, right?
Like, like we wouldn't be ableto get to the bottom of anything
because what we don't know wouldalways undermine what we do know.
And I guess I understand, I understandit on a philosophical level, but in
(42:29):
practice and in law seems Like a sillything to be basing our decisions on.
Daniel Schulof (42:37):
Yeah, you can start to say almost anything you want in your
advertising, if that's the principle.
The court is wrong.
And one of the reasons we knowthat is because it is this kind of
error that's been taking place forcenturies, and is famous enough
to have its own Wikipedia page.
But another thing that having itsown Wikipedia page Demonstrates
(42:58):
is that this is kind of common.
People make this mistake.
Smart people make this mistake.
And I don't know that much aboutthe judge in our case, but I do
know that like educated people.
that aren't professionally involvedin the practice of science are
(43:19):
prone to this kind of mistake.
It doesn't sound completely illogicaluntil you walk through some of that stuff.
And so when I look inward, one of thethings I can say is like, we didn't
do a good enough job of meeting thecourt where the court was likely to
be going into this ruling that like.
We looked past this too much andsaid that, in essence, the court
(43:42):
will get this, and so we spent moretime focused on other things and
kind of skirted this to some degree.
In retrospect, that was an error, um,and it's not one we'll make again.
Jordan Tyler (43:54):
So, this lawsuit currently sits in the Tenth Circuit Court of
Appeals in Denver, and we'll be sureto keep in touch to share any material
developments as they become available,but in the meantime, Daniel, what are you
hoping to accomplish with this lawsuit?
Daniel Schulof (44:09):
Number one is to make sure that the people that enjoyed a billion
dollar windfall as a result of this andsaw their careers enhanced and made a
lot of money by damaging all the variousgroups that we talked about before.
And they have to give that money back,that they're penalized for committing the
misconduct that they committed, and thatthe court has the power to essentially
(44:31):
make that right, to assure that themoney goes back to the people who, uh,
have been harmed or been damaged by it.
And that the bad guys don't getto just make off with money.
Second thing though, is I, maybeI'm in the minority here by virtue
of my professional background, butI'm a believer that the legal system
(44:52):
in the United States, the judicialsystem is sometimes a very good
vehicle for social change, industryimprovement, those types of things.
Jordan Tyler (45:03):
Daniel's faithful outlook in the U.
S.
legal system means he's far from shyingaway from this issue anytime soon.
As we wrap up today's episode,let's bring it back to BSM
Partners Veterinary Experts.
Throughout the course of thisepisode, we've highlighted several
trends and misconceptions thatfueled a huge shift in the industry.
(45:25):
The ramifications of which persist today.
In a knee jerk reaction, sweepingchanges were made across the
industry to make grains good again.
And none of these changes were actuallyresearched before being implemented.
So we're just perpetuating the issue thatcaused the DCM debacle in the first place.
(45:46):
And as Dr.
Katie Miller puts it, Thisis a dangerous approach.
Dr. Katy Miller (45:51):
When this came about and somebody said, Hey, there's a concern
with these diets, everybody kind of losttheir mind and went crazy, and so it
was like, Oh, okay, the grain free foodsare bad, let's add grains to the food.
So, all of a sudden everythingcame in with ancient grains,
grain friendly, wholesome grains.
We added things like taurine,cysteine, methionine, things, amino
(46:14):
acids that are good for heart health.
Like, we, all of a sudden, everybody wasjust panicking and adding things to foods
because we didn't know what was going on.
And so, when you don't have thescientific foundation to be able to
determine what was going on and howto stop it, it may, just created
this mass panic in the industry of,well, let's do something about it.
And so, the stores went from being 75to 90 percent to 100 percent grain free
(46:41):
stores to all of a sudden needing to havethis room for these grain inclusive foods.
And so, there was a big shift in thewhole industry when this happened.
And unfortunately, I think thatthis happened because we had a lack
of good scientific research to beable to support the grain free food.
We just didn't have that information.
(47:02):
And I think that we kind of jumped outof one fire and could have jumped into
another by adding in ancient grains.
Like what, what informationdo we have on ancient grains?
Those weren't traditionally usedas pet food ingredients either.
So they can be lacking some of the sameresearch that our grain free ingredients
had like the pulses and the legumes and wecould have created a whole nother problem.
(47:25):
Luckily, I don't think that we did,but I think that we need to be more
strategic in our response to things.
And this is one of those areas that if wehad had the research be there to be able
to back it up, we would have been ableto go on the things that we knew instead
of just kind of throw the kitchen sinkat it and hope that something sticks.
Dr. Bradley Quest (47:47):
I think Katie brought up a, you know, a lot of great, great
points there about, you know, wasthere enough research around grain free
before 40 percent of the industry was,you know, feeding grain free diets?
Is there enough research outthere about ancient grains?
You know, what is an ancient grain?
Is that an actual regulatory definition?
No, it actually isn't.
Um, should there be more researchdone into adding, You know, some
(48:09):
of these other, uh, as Katie said,carbohydrate ingredients into pet foods
at relatively high, um, inclusion rates.
Absolutely.
There should be, you know, pet foodcompanies that are doing that, they should
be doing feeding studies with their diets.
That's really what it all boils down to.
You know, I know we've talkedabout it before, but, um, pet food
companies need to do research.
(48:31):
with their diets.
They need to do feeding studies.
And if they're not, you need toask them why they don't do it.
And if they are doing them, ask themwhy they're not sharing the results.
Dr. Katy Miller (48:41):
Well, and really it's a huge competitive advantage
to be able to say that you havedone research on your foods.
You've actually fed these todogs that aren't just my dogs.
And we have the ability now to do, um,like in home feeding trials where we're
using real life dogs and being ableto use a real life situation and test
these diets, there's no reason that youshouldn't be doing this testing and making
(49:05):
sure that these diets are complete andbalanced before they're in the market.
Dr. Bradley Quest (49:09):
People look at us being, you know, our consulting
company and our research arm ofthat and they say, Oh my gosh,
you guys are grain free advocates.
We're actually not.
We, we do, we do product development.
We do research on all kinds ofdiets, but what we are advocates of
is actual truth and good research.
So.
You know, that was the reason whywe did our research and why we
(49:30):
tried to investigate this so muchbecause we wanted to know if there
actually was something to this.
We should know about it becausewe, we touched so many products
in the, in the pet food space.
We did as much as probably anybodydid to try to investigate this and
there just is no definitive linkbetween any of these diets and DCM.
Jordan Tyler (49:54):
So of all the things we talked about today, perhaps
the most salient point is this.
When scientific rigor takes a backseatto speculation and unsubstantiated
fear mongering, the consequencescan have seismic effects for entire
industries, and more importantly,for the health of our pets.
(50:16):
The DCM controversy, whether manufacturedor misunderstood, serves as a reminder
that transparent research Evidencebased product development and good old
critical thinking should always be thekey drivers of pet nutrition innovation.
Not fear, not marketing, and not theprofit interests of big business.
(50:40):
As Daniel points out, the pet nutritionspace is rife with misinformation.
And placing the burden of scientificliteracy on veterinarians and other
industry stakeholders is no longerenough to ensure the best interests
of our canine and feline companions.
is taken to heart.
Rather, those who can educate themselvesand who are willing to challenge
(51:02):
narratives that lack substantive evidenceto back them up will be crucial to
ensuring history doesn't repeat itself.
Daniel Schulof (51:10):
The only way for you to ensure you're getting accurate
information is to make sure that youare personally scientifically literate
enough to evaluate statements on yourown, that you understand, given the
tools that are available to you inthis day and age between internet
technologies and what have you.
That you can run thisstuff down on your own.
If you have to rely onsomebody else telling you, that
(51:34):
ought to be how things work.
Like there, it can't be the casethat we're all experts in every
scientific domain that we can do that.
You know, there's plenty of hypertechnical stuff that if somebody was
like, well, Dan, which of these twotheories of genetics do you endorse?
I would have to say, I don't know.
I just don't know the answer to that.
I don't know enough about it.
(51:55):
And in those fields, it's like, ofcourse, very useful to have experts
that you can go, Well, these peoplesaid that, and they're the experts.
We trust them.
It is not that way in the veterinarynutrition world, unfortunately.
And, um, You gotta improveyour scientific literacy.
That's just kind of the sadreality of the current situation.
Jordan Tyler (52:13):
So, lots to unpack today, but I think if
we takeaway, maybe it's this.
When it comes to complex topicslike this, The importance of
research cannot be overstated.
It's only through peer reviewed,collaborative studies that we
can truly get to the bottom ofDCM and other hard hitting topics
(52:36):
impacting pets and their people.
If you'd like to learn more aboutDCM, check out our wealth of previous
episodes, which we've linked inthe show notes for today's episode.
These include conversations highlightingthe true incidence rates of DCM and
how they don't match up with whatwas reported to and by the FDA.
(52:57):
Look for the episode titled, AMountain or a Molehill, for that one.
In our Pawing Through the Researchepisode, we discussed how we can use
literature reviews to pave the way forfuture research and to debunk understudied
or unsubstantiated preconceptionsabout pet health and nutrition.
We've also shared an episode about howstudy design can make or break a piece
(53:20):
of research, and how pet parents canempower themselves to think critically
about the studies they read beforejumping to conclusions, or believing the
conclusions that others have jumped to.
Check out our Think Twice episodeto get the scoop on study design.
And stay tuned for a future episode onhow to interpret scientific literature so
(53:41):
you can learn how to make the best, mostinformed decisions for you and your pet.
Thank you for tuning in toanother episode of Barking Mad.
If you want to learn more about us orBSM Partners, please visit us at www.
bsmpartners.
org.
Don't forget to subscribe on your favoriteleading podcast platform and share it with
(54:05):
a friend to stay current on the latestpet industry trends and conversations.
A huge thank you to DanielShuloff for sharing his
perspectives on today's episode.
If you'd like to keep up with him inthe Keto Natural Pet Foods lawsuit,
we've linked some resources for youin the show notes of this episode.
We'd also like to thank ParkerDodson with podcastvideos.
(54:26):
com for his post production support,as well as the dedicated team behind
this podcast, Adamiette Thomas, MiliBowden, Kate Wright, Katie Wolf, and Dr.
Katie Miller.
An extra thank you to LeanneHaggerty and Michael Johnson
in support of this episode.
See you next time!
On February 6th, 2024, Keto Natural Pet Foods filed
what it described as the largestlawsuit in the history of the U.
S.
pet food industry.
The suit alleges that Hills PetNutrition and a cluster of affiliates
fabricated the high profile controversyover dilated cardiomyopathy or DCM
in an effort to get pet parents toabandon certain dog foods and switch to
(00:44):
more mainstream or traditional diets.
These terms in air quotes as they'rearbitrary at best and lack any kind of
true scientific or regulatory definitions.
In the initial complaint of thelawsuit, Keto Natural Pet Food
states, In the four years immediatelypreceding the controversy, so 2013
to 2017, Hill's annual revenuesgrew by a total of only about 1%.
(01:09):
But, in the five years since thecontroversy began, so 2018 to 2023, the
company's revenues nearly doubled to 4.
2 billion.
This lawsuit is the culmination of aseismic shift in the industry, stemming
from unsubstantiated science from a groupof veterinarians and a premature public
announcement by the FDA that led the grainfree pet food industry into disaster.
(01:35):
And some even speculate the ordealgave rise to large, multinational
kibble brands who were losing marketshare to some of the more emerging
pet food formulation philosophies.
But how did we get to this point?
In today's episode, we explore therise and fall of grain free dog food,
the pronounced impacts felt across thepet food industry, from farmers and
(01:58):
brands all the way through retailers andconsumers, And we'll share how one legally
savvy pet food entrepreneur is seekingjustice for his brand and the many others
harmed as a result of the DCM debacle.
Welcome to Barking Mad, apodcast by BSM Partners.
I'm your host, Jordan Tyler.
(02:23):
Now, before we get into it, let'squickly recap the DCM controversy.
So, in 2018, a group of veterinariansvoiced concerns about increased
incidences of DCM in dogs.
In many of these cases,grain free dog foods were
implicated as a potential cause.
Even though the industry lackedany data to prove that grain free
(02:43):
diets were particularly good or bad.
Now, these veterinarians reported whatthey saw to the FDA, who then called
on the public, essentially saying, ifyou have a dog with DCM that's eaten
grain free dog food, let us know.
Unsurprisingly, This call wasanswered with widespread concern and
panic and led to the FDA eventuallypublicly naming 16 grain free dog
(03:08):
food brands linked to cases submittedby veterinarians and pet parents.
And ultimately, this resulted in thedemonization of pulse ingredients
like peas, lentils, and legumesin pet food, and the downfall
of grain free as we knew it.
Now, obviously, there is much morenuance to this story, and we'll get
(03:29):
to that throughout this episode.
But to really paint this pictureand all the messy, mind boggling
misconceptions that contributed toit, let's start at the very beginning,
the rise of grain free pet foods.
To understand the trends that drovesuch widespread acceptance of these
formulas, we spoke with BSM Partnersconsumer strategy expert, Michael
(03:52):
Johnson, who details the interestinginclinations among pet food shoppers
and veterinarians when it came tograin free in the early 21st century.
Now, to be clear, these diets were seenby many as a beacon of health and wellness
before the FDA's announcement in 2018.
So let's hear from him abouthow these diets went from
(04:15):
shining examples to scapegoats.
Michael Johnson (04:19):
So the story of pet products in this country
has always been kind of onwardsand upwards in terms of quality.
So in a very broad sense, it was justthe right time for this kind of food.
Specifically, however, therewere a number of factors that set
the table for grain free growth.
Veterinarians, for one, oftenrecommended grain free foods
(04:39):
for pets with grain allergies.
And grain free also aligned withhuman diet trends of the day.
Things like low carb, Atkins,gluten free, so on and so forth.
Contemporary pet product marketingwas starting to lean into trends
like no corn, no wheat, no soy.
And ancestral diets, these high proteinand low or no grain formulations, made
(05:01):
grain free foods seem more naturaland certainly more instinctive.
On top of that, grain free foods werepositioned as very premium products,
which gave them cachet and madethem more desirable to consumers.
Jordan Tyler (05:16):
We also spoke with Dr.
Katie Miller, BSM Partners, who wasworking in pet retail at the time of
the FDA's initial DCM announcement.
She recalls store shelves stockednearly exclusively with grain free
options in the years leading up to 2018.
And this was largelydue to consumer demand.
Dr. Katy Miller (05:41):
Just like different people have different
nutritional requirements, so do dogs.
And so, some dogs just do betteron a grain free food than they
did on a grain inclusive food.
So, it started to turn the tides whenthey kind of came out as an option because
there were dogs that, did do betterif they had an intolerance to certain
(06:03):
ingredients or they had skin and coatissues or some GI issues really responded
well to being on a diet that didn't havegrains in it and so the grain free foods
became that option to be able to stillfeed the kibble but be able to get some
of the Benefits that some pets saw in it.
(06:25):
Veterinarians were recommendinggrain free foods to treat a
lot of different problems.
Grain free became what consumers wanted.
So when you looked at the store.
The store looked like it supported grainfree foods as being a healthier option
only because there were so many optionsto choose from because it had such
(06:47):
huge growth in demand by the customer.
That became a lot of what was onthe shelf because grain inclusive
foods just wouldn't sell.
We had a large call for gluten free foods.
There's one breed of dogs that havea gluten sensitivity and the rest do
not, but people think that becausethey're gluten intolerant that their
dog might be gluten intolerant.
Jordan Tyler (07:09):
This common misunderstanding highlights another point that
helped drive Grain Free to success.
which is a lack of researcharound not only grain free
diets, pet nutrition in general.
And this lack of research perpetuatesa general lack of consumer
understanding when it comes to what'sbest for our furry friends to eat.
(07:33):
According to Dr.
Bradley Quest, principal of veterinaryservices at BSM Partners, when we don't
fully understand the cause of something,it's anybody's guess as to whether an
intervention, like changing the diet,
Dr. Bradley Quest (07:49):
And then the other part of it is, uh, as folks come into,
to veterinary clinics and they havedogs who have, Or pets in general, dogs
and cats who have different types ofallergies, whether it's environmental
allergies or actually true food allergies.
Veterinarians are looking for etiologiesor causes of these allergies, whether it's
(08:09):
the skin symptoms or it's GI symptoms.
And, you know, kind of building on whatKatie said, some dogs actually responded,
um, to some of these diet changes.
Now, was it because theyactually had a food allergy?
Or was something else changed?
When you change multiple things, you neverknow exactly what the, you know, thing
that caused the condition to improve.
(08:31):
So in a way, you know,veterinarians may have pushed this.
Jordan Tyler (08:35):
So you can already see a bit of a whiplash happening here.
First vets thought grain free wasall the rage, the pinnacle of health.
Later it became a scapegoat fora perceived issue that may not
have even been as sizable asit seemed in the first place.
Michael Johnson brings up anotherinteresting early 21st century mishap
(08:55):
that could have tipped the scales towardgrain free, and also illustrates why
pet nutrition is such an emotionaltopic for pet lovers like you and me.
Michael Johnson (09:05):
In 2007, the pet food industry had a massive melamine recall.
I think over 150 brands were affected.
This crisis was due to contaminated wheat,gluten, and rice protein in pet foods.
And this led to acute kidney failurein likely thousands of dogs and cats,
and it made international headlines.
(09:25):
This incident was a tipping pointin the pet industry, and it led to
enhanced safety and regulatory reforms.
But it also led horrified consumersto seek natural and grain free
food options because they seemedmore safe, and it really propelled
this premium food format forward.
The average pet owner wants to doright for their pets, for the best
(09:46):
of their understanding at least,but they're not scientists, and
they're certainly not nutritionists.
Bad news travels very fast, andhumans can be quite reactionary.
So when all of the sudden pet ownerswere starting to hear that grain free
foods may be causing heart issues intheir pets, They did what people do, and
they began skifting purchase behaviors.
Jordan Tyler (10:06):
This was evidenced in a pet food industry article that quoted work
by Nielsen IQ, a leading market researchfirm, which shared that grain free pet
food sales, which were burgeoning in the2010s, began slowing toward the end of
2018 and continued to slide as each newDCM update was released through 2020.
(10:28):
Remember the 16 brands that were named inthe investigation in the summer of 2019?
Well, those brands would go on to seedouble digit declines in grain free
sales by the end of that same year.
Interestingly, some of these brandsalso sold grain inclusive pet foods.
But their sales in that category alsofell due to the reputational damage they'd
(10:52):
suffered as a result of the investigation.
This story was seen, played out inreal time in pet retail stores as
explained by both Michael and Dr.
Katie Miller.
Dr. Katy Miller (11:03):
We got a mad rush for anything that had grains in it, which
unfortunately at the time we were at aloss 'cause we didn't have very many grain
inclusive diets in the store because.
They just didn't sell before this andthen after that it exploded and we
had to shift the whole store to havemore grain inclusive, ancient grains,
(11:25):
grain friendly, all these differenttypes of diets that just included
grain because that's what customerswere coming in and looking for now.
Jordan Tyler (11:34):
The DCM debacle didn't just impact the grain free category.
In fact, this argument wasstrategically adapted to demonize
an entire swath of the industry.
This comes back to the BEGpiece I mentioned earlier.
So leading up to the FDA announcement,BEG or BEG diets, which stands for
(11:54):
Boutique Exotic and Grain Free, weredefined as Quote, non traditional,
by the same group of veterinarianswho started the dialogue around DCM.
And let's just take aminute to break that down.
If you think about the termtraditional, that feels comfy, right?
That feels familiar.
(12:14):
Then you have a non traditional,which typically carries a
more negative connotation.
Maybe it feels a little lesscomfortable, a little more unfamiliar.
So you could see how calling boutique,exotic, and grain free diets non
traditional incites a sense ofdiscomfort and even distrust, maybe
a disruption to the status quo.
(12:36):
And this can largely be seen as a fearmongering tactic that contributed to the
public's shift away from certain typesof diets and, as a result, the smaller
and medium sized brands that make them.
Dr. Bradley Quest (12:49):
I think this was one of the UC Davis studies
where they were using, I think,traditional and non traditional.
Literally, there was onlythree manufacturers that could
be in the traditional group.
It was Mars, Nestle, and Hills becauseit was all based on dollar sales.
And they were the only three companiesthat would meet that threshold.
And it can only be kibble.
So that's the only, the only diets.
(13:09):
Everything else was in non traditional,so that could be everything from,
uh, kibble diets that were, you know,made by, we'll say, medium sized
companies or even relatively largecompanies that weren't in the top three.
Everything down to raw diets that weren'teven nutritionally complete and balanced.
It was such a poor study design thatit actually invalidated any conclusions
(13:34):
that the authors made out of that study.
What is a boutique for the petfood company is anybody's guess.
What is an exotic pet food ingredient?
Same thing.
It's anybody's guess.
Those are not regulatory terms.
They mean nothing.
The G is in grain free.
I guess that's Relatively selfexplanatory, but to categorize diets based
(13:55):
on just made up nomenclature, I mean it,it's, it really has no place in research.
Jordan Tyler (14:03):
In other words, the concept of BEG pet food is not only
unfounded, but those who coined itare misleading consumers down a path
that is based more in conjecturethan it is in scientific evidence.
Now, 16 brands were calledout in the FDA's announcement.
And these brands, along with othersthat fell within the BEG category,
(14:27):
however fictional it may be, quicklyfound themselves on the wrong side
of unsubstantiated messages thatpulse inclusive pet foods could
lead to diet induced DCM in dogs.
The founder of one of these brands,Daniel Shuloff of Keto Natural Pet
Foods, saw the impact this had across theindustry, as well as for his own company.
(14:47):
And instead of throwing in the towelor turning a blind eye, He doubled
down and dedicated countless hours tounderstanding what he believes are the
true motivations behind the DCM debacle.
Daniel's background as a lawyerhas put him in a unique position
to champion brands and individualsnegatively impacted by this ordeal.
He's doing this througha class action lawsuit.
(15:10):
filed against Hill's Pet Nutritionin February 2024, which alleges
that Hill's Pet Nutrition and acluster of affiliates fabricated the
high profile controversy over DCM.
But long before Daniel became a petfood entrepreneur and activist, he
became, like many of us, a dedicateddog owner, a labor of love that
(15:31):
ultimately led him to write a book.
Dogs, dog food, and dogma, an in depthinvestigation of the science and business
of America's pet obesity epidemic.
It was in part due to his experiencewriting this book that he began looking
closer at the pet food industry andultimately launched his own brand.
Daniel Schulof (15:53):
So circa 2011, I was a practicing lawyer.
I worked at one of the biggestlaw firms in the world doing
intellectual property litigation.
I got my first dog, and I waskind of this like, single, yuppie,
city dweller, got my own dog.
He was a Rottweiler, and he was kindof like, quintessentially Rottweiler
(16:14):
y, in that he was intense, and big,strong dog, protective instincts.
Super high drive.
And, you know, one of the things thatmeans is that he needed a good bout
of daily exercise every day in orderto become a polite member of society.
Right.
As I was doing that, like I, bigpart of my career and I guess my
(16:35):
personal interests at that pointinvolve like reading a lot of.
Scientific stuff, kind of like when youdo intellectual property litigation,
you're often litigating cases againstscientists or with your own scientists.
And I think between that and myown just personal background, I
went into the dog rearing processwith like a scientific bent.
(16:58):
And so when it came time to figureout how do I exercise this dog
effectively, that's kind of where I went.
And I went to PubMed andI tried to understand.
Alright, what's the bestway to exercise this guy?
What's the most efficient way?
Et cetera, et cetera.
And through the course of doing that,I learned about the problem of obesity
among pets in the Western world.
Here are the two facts that blew meaway that I always remind folks of
(17:22):
when I talk about the scale of thecompanion animal obesity problem.
One, it's the norm, okay?
In the United States, there are moreoverweight or obese dogs and cats than
non overweight or obese dogs and cats.
You pick one, the next one you see atrandom, more likely to be fat than not.
So it's very common.
(17:42):
Second, it's really, really,really, really bad for them.
And the way I like to express it iswhen, you know, folks have, uh, studied
the impact of obesity on longevity indogs to some degree, they've studied the
impact of smoking on the longevity ofhuman beings a lot, well, it turns out.
that the impact of being moderatelyoverweight on expected lifespan in
(18:03):
dogs and cats is significantly worsethan the impact of smoking every day
from the time you're 18 years olduntil the time you die in human beings.
Your expected lifespan will go downby more if you're a fat dog than if
you are a lifelong smoker in people.
And it just kind of blew me awaylike how could this be that this
common thing everybody I love mydog everybody loves their dog.
(18:25):
And I just sort of started followingthe rabbit hole further, and I
became obsessed with it, honestly.
And I spent four yearswriting, working on a book.
I eventually quit my jobworking as a lawyer so I could
work on the book full time.
And it's my attempt toexplain this weird thing.
How could so many dogs,cats in the country be fat?
The main thesis that I put forth in thebook, that I believe in strongly, is that
(18:49):
carbohydrate is the fundamental cause,the fundamental underlying, single,
primary cause of obesity in dogs and cats.
You wouldn't have an obesity problemamong dogs and cats if carbohydrate
wasn't the s Backbone of the US petfood industry and I make the case in
the book and so after that I foundeda company once the book was out there.
(19:09):
You know, for people that read thebook and felt persuaded or people that
came to the same conclusion in theirown mind, thought I'd make products
for people that agreed with me, pickproducts that I wanted that weren't in
the market, which is to say very lowcarbohydrate kibble style products.
So I founded a company calledketo natural pet foods in 2017.
We make the lowest carbohydrate,highest protein kibble products
(19:31):
for sale in the United States.
And we've been doing our thing since then.
And, um.
That's sort of my weird,how I transitioned from one
to the other, uh, story.
Jordan Tyler (19:43):
The question of carbs in pet food is an interesting one, and requires
at least some level of understandingof how pet food, particularly dry
pet food or kibble, is formulated andmanufactured, as highlighted by Dr.
Katie Miller.
Dr. Katy Miller (19:59):
There was some misconception where people felt like grain
free foods equals carbohydrate free foods.
And so we were starting to say,well, dogs don't need carbohydrates.
They have no nutritionalrequirement for them, so they
don't need them in their food.
But you do need it to make a kibble.
And so, some people mistakenlyfelt like if dogs don't need
(20:24):
carbohydrates, they don't need grains.
Which is true, they don't needgrains, but they also don't need
what we put in place of grains, whichwere legumes and peas and tubers,
like, they don't need those either.
But we do need them tomake a kibble shape.
Unfortunately, some people misunderstoodthat as being, well, that's a low
carb diet is because it doesn't havegrains and that isn't necessarily true.
Jordan Tyler (20:50):
All that to say, it is absolutely critical that brands educate
their consumers about what they'rereally feeding and that this education
is backed up by scientific research,feeding trials, and efficacy data.
This is how we can avoid future mishaps,similar to what we saw with DCM.
(21:10):
Now, bringing things back to thelawsuit, Daniel was eager to discuss
the details, and while the suit is stillin its early stages, there could be
significant impacts for the industry,depending on the court's ruling.
Daniel Schulof (21:23):
One of the things that we're alleging and proving up
in the course of the litigation isthat we've been damaged by misconduct
that relates to the TCM issue.
One of the issues in the litigationis, well, how much, how do you
quantify that damage, okay?
And our lawsuit is a class actionlawsuit, which means, for the listeners
(21:43):
that don't already know, what we'reessentially asking the court to do
is let us Keto natural pet foods, mycompany represent a bunch of other
companies that are in a similar position.
They've been damaged throughthe same legal theory.
And so the issue is not in thecase is not only how much have
I been damaged, but how much hasthe industry broadly been damaged?
(22:05):
One thing I will say is that tothis day, Keto natural gets customer
service tickets from consumers or.
Would be consumers that say essentiallysome version of the following.
I want your product.
It sounds great to me, or I am feedingyour product to my dog already.
And it is going great, but I went tothe veterinarian the other day and
(22:28):
they told me I shouldn't do it anymore.
Or I shouldn't try the product in thefirst instance because of DCM like we
get those kind of tickets today We gotmore of them in the period where DCM was
still in major media headlines when itwas 2018 2019 we were a smaller company
then but the issue was a bigger Impacteda greater percentage of our customers,
(22:51):
but it's still a thing today One thing Ican highlight is the market research for
Nielsen in the 2018, 2019, 2020 period haddone a good deal of kind of industry wide
research on the impact of the DCM scandal.
And I know that in 2019 alone, estimatedkind of took more than a billion dollars
(23:13):
out of the grain free industry, thatthe growth trajectory that the grain
free side of the industry was on.
Prior to DCM and then the trajectory thatit was on after the FDA announced its
investigation that the delta there wasmore than a billion dollars and that's
like in, you know, the first 12 months.
So you're talking about areally, really major number.
(23:34):
It looks like the damages.
in our case are at least 2.
6 billion.
That's what we think at least thedamage associated with the misconduct
in the lawsuit represents here.
So you're talking abouta huge, huge number.
It's, it's difficult tooverstate the impact of DCM.
(23:54):
And
Jordan Tyler (23:59):
I'm assuming those numbers don't even touch the impacts that were
seen across the pulse industry, whichhad gotten a huge bump when grain
free diets started to gain popularity.
Like I remember when we talked toTim McGreevey of the American Pulse
Association, and he described a hugedevastating impact from DCM that rippled
(24:20):
all the way back to the family farmerswho grew and tended the ingredients
that constitute grain free pet foods.
So peas, lentils, legumes, and the like.
And so when you're thinking about theoverall impact of DCM, You really can't
isolate it to the pet food companiesthat were named in the FDA investigation.
You also have to consider otherquote unquote BEG brands that
(24:44):
were affected, as well as farmers,ingredient manufacturers, retailers.
I mean, really, it'sthe whole value chain.
Daniel Schulof (24:52):
You're exactly right.
The farmers that are responsible forcreating the ingredients that are
used in the products, the associationsof those ingredient suppliers, the
folks that are involved in makingthe products, selling the product.
In the United States, in theWestern world, there's a, uh, you
know, a kind of specific channel.
That is devoted, disproportionatelydevotes its product line to the BG
(25:16):
type of product, which is an Americanpet specialty retailers, the mom
and pop pet stores that carry thebetter for your dog type of brands.
DCM became a thing.
It was a.
Big, big deal right whenCOVID was a big, big deal too.
And so a lot of those stores, I knowfolks personally that had to close their
(25:37):
stores because of the one, two punchof DCM and COVID there was a chain of
pet retailers called, uh, independentpet partners was one of the largest.
Pet specialty chains in theUnited States doing something like
200 million in revenue in 2022.
(25:57):
I believe they're one of thefastest growing pet specialty
retail chains in the United States.
2022 they filed for chapter 11.
Well, what happened?
You go look up the chapter 11filings and they'll tell you why
they went bankrupt more than COVID.
The first thing they list is theDCM controversy drove one of the
largest pet specialty chains inthe United States into bankruptcy.
(26:19):
This is as big an impact as it could be.
And then the last group that it'simportant to, anytime you're having this
conversation to mention is individualpet owners and the pets that they're
charged with, you know, taking careof that's part of the reason why the
veterinary community has so uncriticallyaccepted the notion that BEG equals DCM.
(26:43):
At least in my experience, like,kind of like logic that I hear vets
articulate around why they say stayaway from BEG is essentially like this.
Well, look, we don't know whetherthese things cause DCM yet.
The jury's still out.
We gotta figure that all out.
But it might, might not.
Some people say it does,some people say it doesn't.
(27:03):
But we know there's no real benefit.
So since there's no benefit,and there might be something
bad, therefore stay away.
And I think vets, a lot of vetshonestly believe that, and I think
that it's a really, uh, not nuancedat all understanding of the reality.
Jordan Tyler (27:22):
Coming back to the BEG piece, these brands were particularly
vulnerable because as Daniel and Dr.
Quest explained, this categoryis made up of smaller and medium
sized companies for the most part.
So it's interesting to understand thiswhole ordeal as, instead of a battle of
truth, More of a battle of semantics.
(27:46):
You know, it's almost like peoplewere more concerned about how to
frame the issue than getting downto the actual root cause of it.
Daniel Schulof (27:53):
Different people that have played a role in organizations
in the DCM controversy kind ofcharacterize this somewhat differently.
When the FDA first announced itsinvestigation into DCM in 2018, it
generally got reported in the media asthey're investigating grain free products.
The FDA didn't actually use thatlanguage, to the best of my knowledge.
(28:16):
Knowledge specifically, but they diddefine it in terms of ingredients
that they were looking at.
And they're the ingredients that aremost commonly found in grain free diets.
And so in the New York Times,Washington Post wrote stories about it.
Grain free was kind ofhow it was framed up.
Within a year later, Some of thefolks that played an important role
in the FDA's investigation, veterinaryacademics that are in practice at major
(28:39):
research universities, published apaper and put out a bunch of consumer
facing writing where they defined thegroup of products somewhat differently.
They described it More broadly as whatyou, you mentioned BEG diets, which
is an acronym, standing for boutiqueexotic ingredient or grain free.
So it's inclusive of everythingthat's grain free, but it's also
(29:00):
larger than that because it includesboutique, which is to say made by a
manufacturer that is not colossal.
Or exotic ingredient, which isparaphrasing, but like the woman who
coined this term came up with thatin her judgment constitutes exotic.
And so when the FDA announced itsinvestigation at DCM, we're talking
about one massive already group ofproducts, but then later some folks
(29:24):
tried to even expand that and make thegroup not just larger, but more diverse.
To say grain free, like you noted,is to describe a category that's
massively diverse in the first instance.
There's not a great deal of commonality,and there's a ton of variance.
Well, boutique exotic ingredient orgrain free is so diverse that it knocks
(29:47):
you over the head with, how could thischaracterization be a fair, accurate,
like, give me a nutritional quality.
Or any kind of substance quality,ingredient quality, nutritional quality,
something that all those products share.
Just highlight one.
Like there has to be one ifyou're going to defend the
thesis that that's the problem.
(30:08):
They have to share something in common.
What is it?
No, there's nothing.
Jordan Tyler (30:12):
This is interesting for several reasons.
But first, the general public'sreaction to the DCM scare led to the
creation of several large communitiesof veterinarians and pet parents who
had either been impacted by DCM or werescared by it and wanted to know more.
One of these communities is a Facebookgroup that has more than 130, 000 members.
(30:35):
And the facilitators of the group haveprovided recommendations to its members
on what pet foods are safe to feedfor pet owners concerned about DCM.
Interestingly enough, the onlydiets recommended in this particular
Facebook group are manufactured bythree of the largest multinational
pet food companies that exist today.
(30:57):
So if Daniel's thesis iscorrect and the DCM debacle was.
Truly manufactured as a profit grabby big industry players, a ruling in
keto natural pet foods favor would beunprecedented, earth shattering, and
could possibly cause a lot of people towalk back on their prior assumptions.
Daniel Schulof (31:20):
When the FDA announced that it had begun an investigation
into whether grain free dog foodswere giving dogs DCM, I think a fair
number of folks in the industry, itlike, didn't smell right, right away.
Immediately there were things thatI noticed at least that were like
suspicious, you know, like at that time2018 I'd already, I'd spent four years
(31:40):
writing a book about the overlap betweenPet food industry, clinical veterinary
practice, regulatory world, all that stuffand how misinformation spreads within
it, I was able to recognize some thingsthat maybe escaped the lay person's.
You know, observation, but there arethings like names of people that I
wrote about in my book who I wroteabout critically was that I think
(32:03):
they did some stuff wrong here.
Oh, I see their names in theFDA in the media about this.
That's interesting sign.
I see like a sort of tactical similaritythe way that the like TCM issue is
being framed up in the early stages.
was consistent with how similartypes of issues had been put out,
(32:25):
in my estimation, in the past inlike really similar instances.
If you go to a veterinarian's officetoday, and you ask them, what do you think
about raw diets, raw diet for my dog?
What your vet will probably tell youis Well, there's no evidence that
they're any better, and there is someevidence that they might give your
dog some kind of foodborne pathogen.
(32:45):
Therefore, we reallyrecommend that you stay away.
It's like that, as a matter oflike, how the argument is made,
looks exactly like the DCM argument.
And that's, that's just oneof several other issues that
are framed up in that way.
And then of course, I was runninga company, young company, just
trying to get off the ground,that's getting defamed by this.
So I grew very interested init, I grew very skeptical of it.
(33:08):
I took a few actions inlight of the skepticism.
One thing is, I tried to get a articlethat you probably have talked about on
this show that was published in Journalof the American Veterinary Medical
Association, tried to get it retracted.
But it was a editorial about DCMthat included a whole bunch of
factually inaccurate information.
It was able to get published in thejournal anyway because it wasn't
(33:30):
peer reviewed, and I made the casethat it ought to be retracted, um,
and I ultimately lost the fight.
But a second thing that I did is,um, like I said, I'm a lawyer.
I know something about the law.
One of the things I know about iscalled the freedom of information act.
Freedom of information act is a law,federal law that says in essence, the
government has to show you their records.
(33:50):
If you ask them for it, it'sgot a bunch of exceptions.
They can't ask them foryour social security number.
I can't ask for nuclear codes, butgenerally speaking of them, some don't
fall into one of those exceptions.
They got to give it to you.
So I'm suspicious about the DCM thing.
I say to the FDA, in essence, I have aFOIA request, give me the entire DCM file.
I want to look at it.
They say, no, we don't have to do that.
(34:11):
They try to claim it's an exception.
It falls into an activeinvestigation exception.
It's a, it's a nonsense argument.
There is a real exception for ongoing.
Criminal investigations, like ifI'm being investigated for murder,
I can't be like, Hey, FBI, give meyour whole file on me because it
compromises the investigation, right?
But this is not an investigationin that kind of sense.
(34:32):
And so they tried to make that argument.
So I sued them and I won.
And so they said, fine,we'll give you the file.
When the US government says we'regoing to give you a huge file,
tens of thousands of pages ofdocuments takes a really long time.
I'd get a new CD, another 500, 000documents every six weeks for three years.
And I eventually sifted throughall of them and categorized them
(34:53):
and looked at what everything said.
And there is, within that, that corpus ofdocuments, smoking gun evidence of fraud.
What do you do with that?
File a lawsuit to try to hold accountablethe people that committed the fraud
and try to get them to pay for thedamage they've caused to everyone else.
That's what the justice system is for.
(35:13):
And so that's, that's howthe lawsuit came about.
Jordan Tyler (35:16):
Okay, so this lawsuit was filed in February 2024 in
the District Court of Kansas.
And on November 5th, 2024, the courtdismissed the suit on the basis
that the initial complaint filed byKeto Natural did not contain enough
specific factual details to supportthe claims made against Hills.
(35:37):
Daniel and his team are notready to throw in the towel.
And honestly, when I followed upwith Daniel, he only seemed more
impassioned to move forward, whichis why they have appealed the case
in the 10th Circuit of the UnitedStates Court of Appeals in Denver.
Daniel Schulof (35:52):
What that means is that for the next It's somewhat unclear.
There's not a fixed timeline, butsomething like six to 12 months, you
know, it's going to be pending atthe 10th circuit and we'll go through
the process of making argument.
They'll make their argument.
Um, it'll be narrowly tailoredto just have to do with this one
decision that the trial court reached.
(36:14):
Uh, if the court agrees with usand overrules the trial court's
decision, then it'll go back tothe trial court and the trial court
will have to let it go forward.
If the court agrees with the defendant.
Then we will have an opportunityto appeal that as well to the U.
S.
Supreme Court.
Jordan Tyler (36:31):
So help us understand why exactly the suit was dismissed
in the District Court of Kansas.
I read the brief, but oh man, Idon't read legalese very well, so
I'd love to get your take on it.
Daniel Schulof (36:44):
This was them saying, look, as a matter of law, there are some
things here that should prohibit thiscase from going forward, even if these
guys can prove up everything they've said.
What this case is, at its core,is a false advertising lawsuit.
What we have alleged, there's a law,a federal law in the United States.
That says false advertising isprohibited and there's a whole body
(37:07):
of case law that's developed toexplain Well, what does that mean?
What it will constitutes falseadvertising, but in essence there are
kind of like two Main elements of it.
There's the false part and the advertisingpart they made some degree of arguments
pertaining to both of those two generalelements and one of the things about
(37:28):
this case is that like the advertisingcomponent of it is not a slam dunk like it
ought to be that like I believe that withall my heart but at the end of the day
we're not talking about commercials thatthe defendant put up that say DCM is real.
Don't feed keto natural pet foods,feed hills instead, because otherwise
(37:52):
your dog is going to get DCM.
What we had was different.
We had a whole range of differentkinds of statements that in one way
or another amount to advertising in myjudgment, but aren't garden variety.
center of the target advertising,like the advertising side,
okay, I can see the arguments.
It's ultimately withinthe court's determination.
(38:15):
The court's not really so constrained bythe facts of the case that they've got a
rule in one way, reasonable people, somefraction of every 10 people, some number
of them might side with the other side.
element.
On the other hand, I never reallythought we could lose because at the
(38:35):
core of the case is the false statementthat DCM is associated with BEG diets.
I never thought we could lose on thefalsity element because that is false.
There is no evidence.
There's never been a study carriedout where the finding was that DCM.
(38:59):
Therefore, it's false.
Therefore, I'm not tooworried about that issue.
If you've read the court's decision,you'll know already that the court
actually didn't take that position.
The court ruled that this, in this eyesof false advertising law, the statement
DCM is associated with BEG diets.
(39:21):
Is not literally false.
And, um, as a result, grantedthe motion to dismiss.
That's not something that's like subjectto interpretation and legal analysis.
It's just factual stuffstraight up as such.
I can say with a great degreeof confidence that unlike any
(39:42):
of judgments about advertising.
The court got that wrong.
In essence, what the court did, thereasoning that the court used to reach its
conclusion that it's not literally falseto say DCM is associated with the EG diets
is, um, the court essentially said, look.
It's always possible.
(40:03):
You can't prove beyond a doubt thatthere's never going to be any evidence
that's going to come forward that's goingto show that actually it is associated.
And then unless you have ironcladevidence that it isn't associated
with BEG diets, then you can't sayit's literally false to say it is.
(40:23):
That kind of logic is, um, something thatis like an error of scientific reasoning.
That's taken place for a long time, longenough to have its own Wikipedia page.
Um, the Wikipedia page is calledRussell's teacup, but it's sometimes
(40:43):
also like more offhandedly called youcan't prove a negative, but the Russell's
teacup thing, the name for that.
Yeah, it comes from the likesuper British philosopher Bertrand
Russell, who, you know, is a megafigure in Western philosophy.
And what he said was, in essence, ifsomebody says to you, Hey, you know,
(41:06):
Jordan, I figured out there is a full,you know, eight ounce cup of Earl Grey
tea in a porcelain teacup orbiting theearth 35 miles beyond the atmosphere.
That there is no amount of evidence thatany form of scientific experimentation
(41:29):
can produce that will absolutelydiscredit that statement conclusively.
You could always, I could say look I spent100 years working with SpaceX and the, you
know, Hubble telescope and everybody else.
And we looked everywhere therewas that we could come up with.
And we found no evidence of the teacup.
(41:50):
That doesn't amount toevidence of no teacup, right?
There's always the possibility that,well, we just didn't look in this one
other corner and maybe it was right there.
And the court made that error of logic.
And it's ruined.
Um, and as a result, dismiss the case.
Jordan Tyler (42:08):
Yeah, I guess kind of my two cents is if we took that
approach for everything, then itwould all be a cop out, right?
Like, like we wouldn't be ableto get to the bottom of anything
because what we don't know wouldalways undermine what we do know.
And I guess I understand, I understandit on a philosophical level, but in
(42:29):
practice and in law seems Like a sillything to be basing our decisions on.
Daniel Schulof (42:37):
Yeah, you can start to say almost anything you want in your
advertising, if that's the principle.
The court is wrong.
And one of the reasons we knowthat is because it is this kind of
error that's been taking place forcenturies, and is famous enough
to have its own Wikipedia page.
But another thing that having itsown Wikipedia page Demonstrates
(42:58):
is that this is kind of common.
People make this mistake.
Smart people make this mistake.
And I don't know that much aboutthe judge in our case, but I do
know that like educated people.
that aren't professionally involvedin the practice of science are
(43:19):
prone to this kind of mistake.
It doesn't sound completely illogicaluntil you walk through some of that stuff.
And so when I look inward, one of thethings I can say is like, we didn't
do a good enough job of meeting thecourt where the court was likely to
be going into this ruling that like.
We looked past this too much andsaid that, in essence, the court
(43:42):
will get this, and so we spent moretime focused on other things and
kind of skirted this to some degree.
In retrospect, that was an error, um,and it's not one we'll make again.
Jordan Tyler (43:54):
So, this lawsuit currently sits in the Tenth Circuit Court of
Appeals in Denver, and we'll be sureto keep in touch to share any material
developments as they become available,but in the meantime, Daniel, what are you
hoping to accomplish with this lawsuit?
Daniel Schulof (44:09):
Number one is to make sure that the people that enjoyed a billion
dollar windfall as a result of this andsaw their careers enhanced and made a
lot of money by damaging all the variousgroups that we talked about before.
And they have to give that money back,that they're penalized for committing the
misconduct that they committed, and thatthe court has the power to essentially
(44:31):
make that right, to assure that themoney goes back to the people who, uh,
have been harmed or been damaged by it.
And that the bad guys don't getto just make off with money.
Second thing though, is I, maybeI'm in the minority here by virtue
of my professional background, butI'm a believer that the legal system
(44:52):
in the United States, the judicialsystem is sometimes a very good
vehicle for social change, industryimprovement, those types of things.
Jordan Tyler (45:03):
Daniel's faithful outlook in the U.
S.
legal system means he's far from shyingaway from this issue anytime soon.
As we wrap up today's episode,let's bring it back to BSM
Partners Veterinary Experts.
Throughout the course of thisepisode, we've highlighted several
trends and misconceptions thatfueled a huge shift in the industry.
(45:25):
The ramifications of which persist today.
In a knee jerk reaction, sweepingchanges were made across the
industry to make grains good again.
And none of these changes were actuallyresearched before being implemented.
So we're just perpetuating the issue thatcaused the DCM debacle in the first place.
(45:46):
And as Dr.
Katie Miller puts it, Thisis a dangerous approach.
Dr. Katy Miller (45:51):
When this came about and somebody said, Hey, there's a concern
with these diets, everybody kind of losttheir mind and went crazy, and so it
was like, Oh, okay, the grain free foodsare bad, let's add grains to the food.
So, all of a sudden everythingcame in with ancient grains,
grain friendly, wholesome grains.
We added things like taurine,cysteine, methionine, things, amino
(46:14):
acids that are good for heart health.
Like, we, all of a sudden, everybody wasjust panicking and adding things to foods
because we didn't know what was going on.
And so, when you don't have thescientific foundation to be able to
determine what was going on and howto stop it, it may, just created
this mass panic in the industry of,well, let's do something about it.
And so, the stores went from being 75to 90 percent to 100 percent grain free
(46:41):
stores to all of a sudden needing to havethis room for these grain inclusive foods.
And so, there was a big shift in thewhole industry when this happened.
And unfortunately, I think thatthis happened because we had a lack
of good scientific research to beable to support the grain free food.
We just didn't have that information.
(47:02):
And I think that we kind of jumped outof one fire and could have jumped into
another by adding in ancient grains.
Like what, what informationdo we have on ancient grains?
Those weren't traditionally usedas pet food ingredients either.
So they can be lacking some of the sameresearch that our grain free ingredients
had like the pulses and the legumes and wecould have created a whole nother problem.
(47:25):
Luckily, I don't think that we did,but I think that we need to be more
strategic in our response to things.
And this is one of those areas that if wehad had the research be there to be able
to back it up, we would have been ableto go on the things that we knew instead
of just kind of throw the kitchen sinkat it and hope that something sticks.
Dr. Bradley Quest (47:47):
I think Katie brought up a, you know, a lot of great, great
points there about, you know, wasthere enough research around grain free
before 40 percent of the industry was,you know, feeding grain free diets?
Is there enough research outthere about ancient grains?
You know, what is an ancient grain?
Is that an actual regulatory definition?
No, it actually isn't.
Um, should there be more researchdone into adding, You know, some
(48:09):
of these other, uh, as Katie said,carbohydrate ingredients into pet foods
at relatively high, um, inclusion rates.
Absolutely.
There should be, you know, pet foodcompanies that are doing that, they should
be doing feeding studies with their diets.
That's really what it all boils down to.
You know, I know we've talkedabout it before, but, um, pet food
companies need to do research.
(48:31):
with their diets.
They need to do feeding studies.
And if they're not, you need toask them why they don't do it.
And if they are doing them, ask themwhy they're not sharing the results.
Dr. Katy Miller (48:41):
Well, and really it's a huge competitive advantage
to be able to say that you havedone research on your foods.
You've actually fed these todogs that aren't just my dogs.
And we have the ability now to do, um,like in home feeding trials where we're
using real life dogs and being ableto use a real life situation and test
these diets, there's no reason that youshouldn't be doing this testing and making
(49:05):
sure that these diets are complete andbalanced before they're in the market.
Dr. Bradley Quest (49:09):
People look at us being, you know, our consulting
company and our research arm ofthat and they say, Oh my gosh,
you guys are grain free advocates.
We're actually not.
We, we do, we do product development.
We do research on all kinds ofdiets, but what we are advocates of
is actual truth and good research.
So.
You know, that was the reason whywe did our research and why we
(49:30):
tried to investigate this so muchbecause we wanted to know if there
actually was something to this.
We should know about it becausewe, we touched so many products
in the, in the pet food space.
We did as much as probably anybodydid to try to investigate this and
there just is no definitive linkbetween any of these diets and DCM.
Jordan Tyler (49:54):
So of all the things we talked about today, perhaps
the most salient point is this.
When scientific rigor takes a backseatto speculation and unsubstantiated
fear mongering, the consequencescan have seismic effects for entire
industries, and more importantly,for the health of our pets.
(50:16):
The DCM controversy, whether manufacturedor misunderstood, serves as a reminder
that transparent research Evidencebased product development and good old
critical thinking should always be thekey drivers of pet nutrition innovation.
Not fear, not marketing, and not theprofit interests of big business.
(50:40):
As Daniel points out, the pet nutritionspace is rife with misinformation.
And placing the burden of scientificliteracy on veterinarians and other
industry stakeholders is no longerenough to ensure the best interests
of our canine and feline companions.
is taken to heart.
Rather, those who can educate themselvesand who are willing to challenge
(51:02):
narratives that lack substantive evidenceto back them up will be crucial to
ensuring history doesn't repeat itself.
Daniel Schulof (51:10):
The only way for you to ensure you're getting accurate
information is to make sure that youare personally scientifically literate
enough to evaluate statements on yourown, that you understand, given the
tools that are available to you inthis day and age between internet
technologies and what have you.
That you can run thisstuff down on your own.
If you have to rely onsomebody else telling you, that
(51:34):
ought to be how things work.
Like there, it can't be the casethat we're all experts in every
scientific domain that we can do that.
You know, there's plenty of hypertechnical stuff that if somebody was
like, well, Dan, which of these twotheories of genetics do you endorse?
I would have to say, I don't know.
I just don't know the answer to that.
I don't know enough about it.
(51:55):
And in those fields, it's like, ofcourse, very useful to have experts
that you can go, Well, these peoplesaid that, and they're the experts.
We trust them.
It is not that way in the veterinarynutrition world, unfortunately.
And, um, You gotta improveyour scientific literacy.
That's just kind of the sadreality of the current situation.
Jordan Tyler (52:13):
So, lots to unpack today, but I think if
we takeaway, maybe it's this.
When it comes to complex topicslike this, The importance of
research cannot be overstated.
It's only through peer reviewed,collaborative studies that we
can truly get to the bottom ofDCM and other hard hitting topics
(52:36):
impacting pets and their people.
If you'd like to learn more aboutDCM, check out our wealth of previous
episodes, which we've linked inthe show notes for today's episode.
These include conversations highlightingthe true incidence rates of DCM and
how they don't match up with whatwas reported to and by the FDA.
(52:57):
Look for the episode titled, AMountain or a Molehill, for that one.
In our Pawing Through the Researchepisode, we discussed how we can use
literature reviews to pave the way forfuture research and to debunk understudied
or unsubstantiated preconceptionsabout pet health and nutrition.
We've also shared an episode about howstudy design can make or break a piece
(53:20):
of research, and how pet parents canempower themselves to think critically
about the studies they read beforejumping to conclusions, or believing the
conclusions that others have jumped to.
Check out our Think Twice episodeto get the scoop on study design.
And stay tuned for a future episode onhow to interpret scientific literature so
(53:41):
you can learn how to make the best, mostinformed decisions for you and your pet.
Thank you for tuning in toanother episode of Barking Mad.
If you want to learn more about us orBSM Partners, please visit us at www.
bsmpartners.
org.
Don't forget to subscribe on your favoriteleading podcast platform and share it with
(54:05):
a friend to stay current on the latestpet industry trends and conversations.
A huge thank you to DanielShuloff for sharing his
perspectives on today's episode.
If you'd like to keep up with him inthe Keto Natural Pet Foods lawsuit,
we've linked some resources for youin the show notes of this episode.
We'd also like to thank ParkerDodson with podcastvideos.
(54:26):
com for his post production support,as well as the dedicated team behind
this podcast, Adamiette Thomas, MiliBowden, Kate Wright, Katie Wolf, and Dr.
Katie Miller.
An extra thank you to LeanneHaggerty and Michael Johnson
in support of this episode.
See you next time!
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