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

On February 6th, 2024, Keto Natural Pet Foods filed

what it described as the largest lawsuit in the history of the U.

S.

pet food industry.

The suit alleges that Hills Pet Nutrition and a cluster of affiliates

fabricated the high profile controversy over dilated cardiomyopathy or DCM

in an effort to get pet parents to abandon certain dog foods and switch to

more mainstream or traditional diets.

These terms in air quotes as they're arbitrary at best and lack any kind of

true scientific or regulatory definitions.

In the initial complaint of the lawsuit, Keto Natural Pet Food

states, In the four years immediately preceding the controversy, so 2013

to 2017, Hill's annual revenues grew by a total of only about 1%.

But, in the five years since the controversy began, so 2018 to 2023, the

company's revenues nearly doubled to 4.

2 billion.

This lawsuit is the culmination of a seismic shift in the industry, stemming

from unsubstantiated science from a group of veterinarians and a premature public

announcement by the FDA that led the grain free pet food industry into disaster.

And some even speculate the ordeal gave rise to large, multinational

kibble brands who were losing market share to some of the more emerging

pet food formulation philosophies.

But how did we get to this point?

In today's episode, we explore the rise and fall of grain free dog food,

the pronounced impacts felt across the pet food industry, from farmers and

brands all the way through retailers and consumers, And we'll share how one legally

savvy pet food entrepreneur is seeking justice for his brand and the many others

harmed as a result of the DCM debacle.

Welcome to Barking Mad, a podcast by BSM Partners.

I'm your host, Jordan Tyler.

Now, before we get into it, let's quickly recap the DCM controversy.

So, in 2018, a group of veterinarians voiced 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 lacked any data to prove that grain free

diets were particularly good or bad.

Now, these veterinarians reported what they saw to the FDA, who then called

on the public, essentially saying, if you have a dog with DCM that's eaten

grain free dog food, let us know.

Unsurprisingly, This call was answered with widespread concern and

panic and led to the FDA eventually publicly naming 16 grain free dog

food brands linked to cases submitted by veterinarians and pet parents.

And ultimately, this resulted in the demonization of pulse ingredients

like peas, lentils, and legumes in pet food, and the downfall

of grain free as we knew it.

Now, obviously, there is much more nuance to this story, and we'll get

to that throughout this episode.

But to really paint this picture and all the messy, mind boggling

misconceptions that contributed to it, let's start at the very beginning,

the rise of grain free pet foods.

To understand the trends that drove such widespread acceptance of these

formulas, we spoke with BSM Partners consumer strategy expert, Michael

Johnson, who details the interesting inclinations among pet food shoppers

and veterinarians when it came to grain free in the early 21st century.

Now, to be clear, these diets were seen by many as a beacon of health and wellness

before the FDA's announcement in 2018.

So let's hear from him about how these diets went from

shining examples to scapegoats.

So the story of pet products in this country

has always been kind of onwards and upwards in terms of quality.

So in a very broad sense, it was just the right time for this kind of food.

Specifically, however, there were a number of factors that set

the table for grain free growth.

Veterinarians, for one, often recommended grain free foods

for pets with grain allergies.

And grain free also aligned with human diet trends of the day.

Things like low carb, Atkins, gluten free, so on and so forth.

Contemporary pet product marketing was starting to lean into trends

like no corn, no wheat, no soy.

And ancestral diets, these high protein and low or no grain formulations, made

grain free foods seem more natural and certainly more instinctive.

On top of that, grain free foods were positioned as very premium products,

which gave them cachet and made them more desirable to consumers.

We also spoke with Dr.

Katie Miller, BSM Partners, who was working in pet retail at the time of

the FDA's initial DCM announcement.

She recalls store shelves stocked nearly exclusively with grain free

options in the years leading up to 2018.

And this was largely due to consumer demand.

Dr. Katy Miller: Just like different people have different

nutritional requirements, so do dogs.

And so, some dogs just do better on a grain free food than they

did on a grain inclusive food.

So, it started to turn the tides when they kind of came out as an option because

there were dogs that, did do better if they had an intolerance to certain

ingredients or they had skin and coat issues or some GI issues really responded

well to being on a diet that didn't have grains in it and so the grain free foods

became that option to be able to still feed the kibble but be able to get some

of the Benefits that some pets saw in it.

Veterinarians were recommending grain 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 grain free foods as being a healthier option

only because there were so many options to choose from because it had such

huge growth in demand by the customer.

That became a lot of what was on the 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 have a gluten sensitivity and the rest do

not, but people think that because they're gluten intolerant that their

dog might be gluten intolerant.

This common misunderstanding highlights another point that

helped drive Grain Free to success.

which is a lack of research around not only grain free

diets, pet nutrition in general.

And this lack of research perpetuates a general lack of consumer

understanding when it comes to what's best for our furry friends to eat.

According to Dr.

Bradley Quest, principal of veterinary services 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: And then the other part of it is, uh, as folks come into,

to veterinary clinics and they have dogs who have, Or pets in general, dogs

and cats who have different types of allergies, whether it's environmental

allergies or actually true food allergies.

Veterinarians are looking for etiologies or causes of these allergies, whether it's

the skin symptoms or it's GI symptoms.

And, you know, kind of building on what Katie said, some dogs actually responded,

um, to some of these diet changes.

Now, was it because they actually had a food allergy?

Or was something else changed?

When you change multiple things, you never know exactly what the, you know, thing

that caused the condition to improve.

So in a way, you know, veterinarians may have pushed this.

So you can already see a bit of a whiplash happening here.

First vets thought grain free was all the rage, the pinnacle of health.

Later it became a scapegoat for a perceived issue that may not

have even been as sizable as it seemed in the first place.

Michael Johnson brings up another interesting early 21st century mishap

that could have tipped the scales toward grain free, and also illustrates why

pet nutrition is such an emotional topic for pet lovers like you and me.

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 failure in likely thousands of dogs and cats,

and it made international headlines.

This incident was a tipping point in the pet industry, and it led to

enhanced safety and regulatory reforms.

But it also led horrified consumers to seek natural and grain free

food options because they seemed more safe, and it really propelled

this premium food format forward.

The average pet owner wants to do right for their pets, for the best

of their understanding at least, but they're not scientists, and

they're certainly not nutritionists.

Bad news travels very fast, and humans can be quite reactionary.

So when all of the sudden pet owners were starting to hear that grain free

foods may be causing heart issues in their pets, They did what people do, and

they began skifting purchase behaviors.

This was evidenced in a pet food industry article that quoted work

by Nielsen IQ, a leading market research firm, which shared that grain free pet

food sales, which were burgeoning in the 2010s, began slowing toward the end of

2018 and continued to slide as each new DCM update was released through 2020.

Remember the 16 brands that were named in the investigation in the summer of 2019?

Well, those brands would go on to see double digit declines in grain free

sales by the end of that same year.

Interestingly, some of these brands also sold grain inclusive pet foods.

But their sales in that category also fell due to the reputational damage they'd

suffered as a result of the investigation.

This story was seen, played out in real time in pet retail stores as

explained by both Michael and Dr.

Katie Miller.

Dr. Katy Miller: We got a mad rush for anything that had grains in it, which

unfortunately at the time we were at a loss 'cause we didn't have very many grain

inclusive diets in the store because.

They just didn't sell before this and then after that it exploded and we

had to shift the whole store to have more grain inclusive, ancient grains,

grain friendly, all these different types of diets that just included

grain because that's what customers were coming in and looking for now.

The DCM debacle didn't just impact the grain free category.

In fact, this argument was strategically adapted to demonize

an entire swath of the industry.

This comes back to the BEG piece I mentioned earlier.

So leading up to the FDA announcement, BEG or BEG diets, which stands for

Boutique Exotic and Grain Free, were defined as Quote, non traditional,

by the same group of veterinarians who started the dialogue around DCM.

And let's just take a minute to break that down.

If you think about the term traditional, that feels comfy, right?

That feels familiar.

Then you have a non traditional, which typically carries a

more negative connotation.

Maybe it feels a little less comfortable, a little more unfamiliar.

So you could see how calling boutique, exotic, and grain free diets non

traditional incites a sense of discomfort and even distrust, maybe

a disruption to the status quo.

And this can largely be seen as a fear mongering tactic that contributed to the

public's shift away from certain types of diets and, as a result, the smaller

and medium sized brands that make them.

Dr. Bradley Quest: I think this was one of the UC Davis studies

where they were using, I think, traditional and non traditional.

Literally, there was only three manufacturers that could

be in the traditional group.

It was Mars, Nestle, and Hills because it was all based on dollar sales.

And they were the only three companies that would meet that threshold.

And it can only be kibble.

So that's the only, the only diets.

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 large companies that weren't in the top three.

Everything down to raw diets that weren't even nutritionally complete and balanced.

It was such a poor study design that it actually invalidated any conclusions

that the authors made out of that study.

What is a boutique for the pet food 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 self explanatory, but to categorize diets based

on just made up nomenclature, I mean it, it's, it really has no place in research.

In other words, the concept of BEG pet food is not only

unfounded, but those who coined it are misleading consumers down a path

that is based more in conjecture than it is in scientific evidence.

Now, 16 brands were called out in the FDA's announcement.

And these brands, along with others that fell within the BEG category,

however fictional it may be, quickly found themselves on the wrong side

of unsubstantiated messages that pulse 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 the industry, as well as for his own company.

And instead of throwing in the towel or turning a blind eye, He doubled

down and dedicated countless hours to understanding what he believes are the

true motivations behind the DCM debacle.

Daniel's background as a lawyer has put him in a unique position

to champion brands and individuals negatively impacted by this ordeal.

He's doing this through a class action lawsuit.

filed against Hill's Pet Nutrition in February 2024, which alleges

that Hill's Pet Nutrition and a cluster of affiliates fabricated the

high profile controversy over DCM.

But long before Daniel became a pet food entrepreneur and activist, he

became, like many of us, a dedicated dog owner, a labor of love that

ultimately led him to write a book.

Dogs, dog food, and dogma, an in depth investigation of the science and business

of America's pet obesity epidemic.

It was in part due to his experience writing this book that he began looking

closer at the pet food industry and ultimately launched his own brand.

So circa 2011, I was a practicing lawyer.

I worked at one of the biggest law firms in the world doing

intellectual property litigation.

I got my first dog, and I was kind of this like, single, yuppie,

city dweller, got my own dog.

He was a Rottweiler, and he was kind of like, quintessentially Rottweiler

y, in that he was intense, and big, strong dog, protective instincts.

Super high drive.

And, you know, one of the things that means is that he needed a good bout

of daily exercise every day in order to become a polite member of society.

Right.

As I was doing that, like I, big part of my career and I guess my

personal interests at that point involve like reading a lot of.

Scientific stuff, kind of like when you do intellectual property litigation,

you're often litigating cases against scientists or with your own scientists.

And I think between that and my own just personal background, I

went into the dog rearing process with like a scientific bent.

And so when it came time to figure out how do I exercise this dog

effectively, that's kind of where I went.

And I went to PubMed and I tried to understand.

Alright, what's the best way 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 me away that I always remind folks of

when I talk about the scale of the companion animal obesity problem.

One, it's the norm, okay?

In the United States, there are more overweight or obese dogs and cats than

non overweight or obese dogs and cats.

You pick one, the next one you see at random, more likely to be fat than not.

So it's very common.

Second, it's really, really, really, really bad for them.

And the way I like to express it is when, you know, folks have, uh, studied

the impact of obesity on longevity in dogs to some degree, they've studied the

impact of smoking on the longevity of human beings a lot, well, it turns out.

that the impact of being moderately overweight on expected lifespan in

dogs and cats is significantly worse than the impact of smoking every day

from the time you're 18 years old until the time you die in human beings.

Your expected lifespan will go down by more if you're a fat dog than if

you are a lifelong smoker in people.

And it just kind of blew me away like how could this be that this

common thing everybody I love my dog everybody loves their dog.

And I just sort of started following the rabbit hole further, and I

became obsessed with it, honestly.

And I spent four years writing, working on a book.

I eventually quit my job working as a lawyer so I could

work on the book full time.

And it's my attempt to explain this weird thing.

How could so many dogs, cats in the country be fat?

The main thesis that I put forth in the book, that I believe in strongly, is that

carbohydrate is the fundamental cause, the fundamental underlying, single,

primary cause of obesity in dogs and cats.

You wouldn't have an obesity problem among dogs and cats if carbohydrate

wasn't the s Backbone of the US pet food industry and I make the case in

the book and so after that I founded a company once the book was out there.

You know, for people that read the book and felt persuaded or people that

came to the same conclusion in their own mind, thought I'd make products

for people that agreed with me, pick products that I wanted that weren't in

the market, which is to say very low carbohydrate kibble style products.

So I founded a company called keto natural pet foods in 2017.

We make the lowest carbohydrate, highest protein kibble products

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.

The question of carbs in pet food is an interesting one, and requires

at least some level of understanding of how pet food, particularly dry

pet food or kibble, is formulated and manufactured, as highlighted by Dr.

Katie Miller.

Dr. Katy Miller: 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 nutritional requirement for them, so they

don't need them in their food.

But you do need it to make a kibble.

And so, some people mistakenly felt like if dogs don't need

carbohydrates, they don't need grains.

Which is true, they don't need grains, but they also don't need

what we put in place of grains, which were legumes and peas and tubers,

like, they don't need those either.

But we do need them to make a kibble shape.

Unfortunately, some people misunderstood that as being, well, that's a low

carb diet is because it doesn't have grains and that isn't necessarily true.

All that to say, it is absolutely critical that brands educate

their consumers about what they're really 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.

Now, bringing things back to the lawsuit, Daniel was eager to discuss

the details, and while the suit is still in its early stages, there could be

significant impacts for the industry, depending on the court's ruling.

One of the things that we're alleging and proving up

in the course of the litigation is that we've been damaged by misconduct

that relates to the TCM issue.

One of the issues in the litigation is, well, how much, how do you

quantify that damage, okay?

And our lawsuit is a class action lawsuit, which means, for the listeners

that don't already know, what we're essentially asking the court to do

is let us Keto natural pet foods, my company represent a bunch of other

companies that are in a similar position.

They've been damaged through the same legal theory.

And so the issue is not in the case is not only how much have

I been damaged, but how much has the industry broadly been damaged?

One thing I will say is that to this day, Keto natural gets customer

service tickets from consumers or.

Would be consumers that say essentially some version of the following.

I want your product.

It sounds great to me, or I am feeding your product to my dog already.

And it is going great, but I went to the veterinarian the other day and

they told me I shouldn't do it anymore.

Or I shouldn't try the product in the first instance because of DCM like we

get those kind of tickets today We got more of them in the period where DCM was

still in major media headlines when it was 2018 2019 we were a smaller company

then but the issue was a bigger Impacted a greater percentage of our customers,

but it's still a thing today One thing I can highlight is the market research for

Nielsen in the 2018, 2019, 2020 period had done a good deal of kind of industry wide

research on the impact of the DCM scandal.

And I know that in 2019 alone, estimated kind of took more than a billion dollars

out of the grain free industry, that the growth trajectory that the grain

free side of the industry was on.

Prior to DCM and then the trajectory that it was on after the FDA announced its

investigation that the delta there was more than a billion dollars and that's

like in, you know, the first 12 months.

So you're talking about a really, really major number.

It looks like the damages.

in our case are at least 2.

6 billion.

That's what we think at least the damage associated with the misconduct

in the lawsuit represents here.

So you're talking about a huge, huge number.

It's, it's difficult to overstate the impact of DCM.

And

I'm assuming those numbers don't even touch the impacts that were

seen across the pulse industry, which had gotten a huge bump when grain

free diets started to gain popularity.

Like I remember when we talked to Tim McGreevey of the American Pulse

Association, and he described a huge devastating impact from DCM that rippled

all the way back to the family farmers who 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 the overall impact of DCM, You really can't

isolate it to the pet food companies that were named in the FDA investigation.

You also have to consider other quote unquote BEG brands that

were affected, as well as farmers, ingredient manufacturers, retailers.

I mean, really, it's the whole value chain.

You're exactly right.

The farmers that are responsible for creating the ingredients that are

used in the products, the associations of those ingredient suppliers, the

folks that are involved in making the products, selling the product.

In the United States, in the Western world, there's a, uh, you

know, a kind of specific channel.

That is devoted, disproportionately devotes its product line to the BG

type of product, which is an American pet specialty retailers, the mom

and pop pet stores that carry the better for your dog type of brands.

DCM became a thing.

It was a.

Big, big deal right when COVID was a big, big deal too.

And so a lot of those stores, I know folks personally that had to close their

stores because of the one, two punch of DCM and COVID there was a chain of

pet retailers called, uh, independent pet partners was one of the largest.

Pet specialty chains in the United States doing something like

200 million in revenue in 2022.

I believe they're one of the fastest growing pet specialty

retail chains in the United States.

2022 they filed for chapter 11.

Well, what happened?

You go look up the chapter 11 filings and they'll tell you why

they went bankrupt more than COVID.

The first thing they list is the DCM controversy drove one of the

largest pet specialty chains in the United States into bankruptcy.

This is as big an impact as it could be.

And then the last group that it's important to, anytime you're having this

conversation to mention is individual pet owners and the pets that they're

charged with, you know, taking care of that's part of the reason why the

veterinary community has so uncritically accepted the notion that BEG equals DCM.

At least in my experience, like, kind of like logic that I hear vets

articulate around why they say stay away from BEG is essentially like this.

Well, look, we don't know whether these 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.

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 vets honestly believe that, and I think

that it's a really, uh, not nuanced at all understanding of the reality.

Coming back to the BEG piece, these brands were particularly

vulnerable because as Daniel and Dr.

Quest explained, this category is made up of smaller and medium

sized companies for the most part.

So it's interesting to understand this whole ordeal as, instead of a battle of

truth, More of a battle of semantics.

You know, it's almost like people were more concerned about how to

frame the issue than getting down to the actual root cause of it.

Different people that have played a role in organizations

in the DCM controversy kind of characterize this somewhat differently.

When the FDA first announced its investigation into DCM in 2018, it

generally got reported in the media as they're investigating grain free products.

The FDA didn't actually use that language, to the best of my knowledge.

Knowledge specifically, but they did define it in terms of ingredients

that they were looking at.

And they're the ingredients that are most commonly found in grain free diets.

And so in the New York Times, Washington Post wrote stories about it.

Grain free was kind of how it was framed up.

Within a year later, Some of the folks that played an important role

in the FDA's investigation, veterinary academics that are in practice at major

research universities, published a paper and put out a bunch of consumer

facing writing where they defined the group of products somewhat differently.

They described it More broadly as what you, you mentioned BEG diets, which

is an acronym, standing for boutique exotic ingredient or grain free.

So it's inclusive of everything that's grain free, but it's also

larger than that because it includes boutique, which is to say made by a

manufacturer that is not colossal.

Or exotic ingredient, which is paraphrasing, but like the woman who

coined this term came up with that in her judgment constitutes exotic.

And so when the FDA announced its investigation at DCM, we're talking

about one massive already group of products, but then later some folks

tried to even expand that and make the group 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 or grain free is so diverse that it knocks

you over the head with, how could this characterization 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 if you're going to defend the

thesis that that's the problem.

They have to share something in common.

What is it?

No, there's nothing.

This is interesting for several reasons.

But first, the general public's reaction to the DCM scare led to the

creation of several large communities of veterinarians and pet parents who

had either been impacted by DCM or were scared by it and wanted to know more.

One of these communities is a Facebook group that has more than 130, 000 members.

And the facilitators of the group have provided recommendations to its members

on what pet foods are safe to feed for pet owners concerned about DCM.

Interestingly enough, the only diets recommended in this particular

Facebook group are manufactured by three of the largest multinational

pet food companies that exist today.

So if Daniel's thesis is correct and the DCM debacle was.

Truly manufactured as a profit grab by big industry players, a ruling in

keto natural pet foods favor would be unprecedented, earth shattering, and

could possibly cause a lot of people to walk back on their prior assumptions.

When the FDA announced that it had begun an investigation

into whether grain free dog foods were giving dogs DCM, I think a fair

number of folks in the industry, it like, didn't smell right, right away.

Immediately there were things that I noticed at least that were like

suspicious, you know, like at that time 2018 I'd already, I'd spent four years

writing a book about the overlap between Pet food industry, clinical veterinary

practice, regulatory world, all that stuff and how misinformation spreads within

it, I was able to recognize some things that maybe escaped the lay person's.

You know, observation, but there are things like names of people that I

wrote about in my book who I wrote about critically was that I think

they did some stuff wrong here.

Oh, I see their names in the FDA in the media about this.

That's interesting sign.

I see like a sort of tactical similarity the way that the like TCM issue is

being framed up in the early stages.

was consistent with how similar types of issues had been put out,

in my estimation, in the past in like really similar instances.

If you go to a veterinarian's office today, and you ask them, what do you think

about raw diets, raw diet for my dog?

What your vet will probably tell you is Well, there's no evidence that

they're any better, and there is some evidence that they might give your

dog some kind of foodborne pathogen.

Therefore, we really recommend that you stay away.

It's like that, as a matter of like, how the argument is made,

looks exactly like the DCM argument.

And that's, that's just one of several other issues that

are framed up in that way.

And then of course, I was running a company, young company, just

trying to get off the ground, that's getting defamed by this.

So I grew very interested in it, I grew very skeptical of it.

I took a few actions in light of the skepticism.

One thing is, I tried to get a article that you probably have talked about on

this show that was published in Journal of the American Veterinary Medical

Association, tried to get it retracted.

But it was a editorial about DCM that included a whole bunch of

factually inaccurate information.

It was able to get published in the journal anyway because it wasn't

peer reviewed, and I made the case that 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 is called 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.

If you ask them for it, it's got a bunch of exceptions.

They can't ask them for your social security number.

I can't ask for nuclear codes, but generally 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 a FOIA request, give me the entire DCM file.

I want to look at it.

They say, no, we don't have to do that.

They try to claim it's an exception.

It falls into an active investigation exception.

It's a, it's a nonsense argument.

There is a real exception for ongoing.

Criminal investigations, like if I'm being investigated for murder,

I can't be like, Hey, FBI, give me your whole file on me because it

compromises the investigation, right?

But this is not an investigation in that kind of sense.

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're going to give you a huge file,

tens of thousands of pages of documents takes a really long time.

I'd get a new CD, another 500, 000 documents every six weeks for three years.

And I eventually sifted through all of them and categorized them

and looked at what everything said.

And there is, within that, that corpus of documents, smoking gun evidence of fraud.

What do you do with that?

File a lawsuit to try to hold accountable the people that committed the fraud

and try to get them to pay for the damage they've caused to everyone else.

That's what the justice system is for.

And so that's, that's how the lawsuit came about.

Okay, so this lawsuit was filed in February 2024 in

the District Court of Kansas.

And on November 5th, 2024, the court dismissed the suit on the basis

that the initial complaint filed by Keto Natural did not contain enough

specific factual details to support the claims made against Hills.

Daniel and his team are not ready to throw in the towel.

And honestly, when I followed up with Daniel, he only seemed more

impassioned to move forward, which is why they have appealed the case

in the 10th Circuit of the United States Court of Appeals in Denver.

What that means is that for the next It's somewhat unclear.

There's not a fixed timeline, but something like six to 12 months, you

know, it's going to be pending at the 10th circuit and we'll go through

the process of making argument.

They'll make their argument.

Um, it'll be narrowly tailored to just have to do with this one

decision that the trial court reached.

Uh, if the court agrees with us and overrules the trial court's

decision, then it'll go back to the 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 opportunity to appeal that as well to the U.

S.

Supreme Court.

So help us understand why exactly the suit was dismissed

in the District Court of Kansas.

I read the brief, but oh man, I don't read legalese very well, so

I'd love to get your take on it.

This was them saying, look, as a matter of law, there are some

things here that should prohibit this case 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 is prohibited and there's a whole body

of case law that's developed to explain Well, what does that mean?

What it will constitutes false advertising, but in essence there are

kind of like two Main elements of it.

There's the false part and the advertising part they made some degree of arguments

pertaining to both of those two general elements and one of the things about

this case is that like the advertising component of it is not a slam dunk like it

ought to be that like I believe that with all my heart but at the end of the day

we're not talking about commercials that the defendant put up that say DCM is real.

Don't feed keto natural pet foods, feed hills instead, because otherwise

your dog is going to get DCM.

What we had was different.

We had a whole range of different kinds of statements that in one way

or another amount to advertising in my judgment, but aren't garden variety.

center of the target advertising, like the advertising side,

okay, I can see the arguments.

It's ultimately within the court's determination.

The court's not really so constrained by the facts of the case that they've got a

rule in one way, reasonable people, some fraction of every 10 people, some number

of them might side with the other side.

element.

On the other hand, I never really thought we could lose because at the

core of the case is the false statement that DCM is associated with BEG diets.

I never thought we could lose on the falsity element because that is false.

There is no evidence.

There's never been a study carried out where the finding was that DCM.

Therefore, it's false.

Therefore, I'm not too worried 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 eyes of false advertising law, the statement

DCM is associated with BEG diets.

Is not literally false.

And, um, as a result, granted the motion to dismiss.

That's not something that's like subject to interpretation and legal analysis.

It's just factual stuff straight up as such.

I can say with a great degree of confidence that unlike any

of judgments about advertising.

The court got that wrong.

In essence, what the court did, the reasoning that the court used to reach its

conclusion that it's not literally false to say DCM is associated with the EG diets

is, um, the court essentially said, look.

It's always possible.

You can't prove beyond a doubt that there's never going to be any evidence

that's going to come forward that's going to show that actually it is associated.

And then unless you have ironclad evidence that it isn't associated

with BEG diets, then you can't say it's literally false to say it is.

That kind of logic is, um, something that is like an error of scientific reasoning.

That's taken place for a long time, long enough to have its own Wikipedia page.

Um, the Wikipedia page is called Russell's teacup, but it's sometimes

also like more offhandedly called you can't prove a negative, but the Russell's

teacup thing, the name for that.

Yeah, it comes from the like super British philosopher Bertrand

Russell, who, you know, is a mega figure in Western philosophy.

And what he said was, in essence, if somebody says to you, Hey, you know,

Jordan, I figured out there is a full, you know, eight ounce cup of Earl Grey

tea in a porcelain teacup orbiting the earth 35 miles beyond the atmosphere.

That there is no amount of evidence that any form of scientific experimentation

can produce that will absolutely discredit that statement conclusively.

You could always, I could say look I spent 100 years working with SpaceX and the, you

know, Hubble telescope and everybody else.

And we looked everywhere there was that we could come up with.

And we found no evidence of the teacup.

That doesn't amount to evidence 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.

Yeah, I guess kind of my two cents is if we took that

approach for everything, then it would all be a cop out, right?

Like, like we wouldn't be able to get to the bottom of anything

because what we don't know would always undermine what we do know.

And I guess I understand, I understand it on a philosophical level, but in

practice and in law seems Like a silly thing to be basing our decisions on.

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 know that is because it is this kind of

error that's been taking place for centuries, and is famous enough

to have its own Wikipedia page.

But another thing that having its own Wikipedia page Demonstrates

is that this is kind of common.

People make this mistake.

Smart people make this mistake.

And I don't know that much about the judge in our case, but I do

know that like educated people.

that aren't professionally involved in the practice of science are

prone to this kind of mistake.

It doesn't sound completely illogical until you walk through some of that stuff.

And so when I look inward, one of the things I can say is like, we didn't

do a good enough job of meeting the court where the court was likely to

be going into this ruling that like.

We looked past this too much and said that, in essence, the court

will get this, and so we spent more time 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.

So, this lawsuit currently sits in the Tenth Circuit Court of

Appeals in Denver, and we'll be sure to 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?

Number one is to make sure that the people that enjoyed a billion

dollar windfall as a result of this and saw their careers enhanced and made a

lot of money by damaging all the various groups 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 that the court has the power to essentially

make that right, to assure that the money goes back to the people who, uh,

have been harmed or been damaged by it.

And that the bad guys don't get to just make off with money.

Second thing though, is I, maybe I'm in the minority here by virtue

of my professional background, but I'm a believer that the legal system

in the United States, the judicial system is sometimes a very good

vehicle for social change, industry improvement, those types of things.

Daniel's faithful outlook in the U.

S.

legal system means he's far from shying away 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 this episode, we've highlighted several

trends and misconceptions that fueled a huge shift in the industry.

The ramifications of which persist today.

In a knee jerk reaction, sweeping changes were made across the

industry to make grains good again.

And none of these changes were actually researched before being implemented.

So we're just perpetuating the issue that caused the DCM debacle in the first place.

And as Dr.

Katie Miller puts it, This is a dangerous approach.

Dr. Katy Miller: When this came about and somebody said, Hey, there's a concern

with these diets, everybody kind of lost their mind and went crazy, and so it

was like, Oh, okay, the grain free foods are bad, let's add grains to the food.

So, all of a sudden everything came in with ancient grains,

grain friendly, wholesome grains.

We added things like taurine, cysteine, methionine, things, amino

acids that are good for heart health.

Like, we, all of a sudden, everybody was just panicking and adding things to foods

because we didn't know what was going on.

And so, when you don't have the scientific foundation to be able to

determine what was going on and how to 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 75 to 90 percent to 100 percent grain free

stores to all of a sudden needing to have this room for these grain inclusive foods.

And so, there was a big shift in the whole industry when this happened.

And unfortunately, I think that this happened because we had a lack

of good scientific research to be able to support the grain free food.

We just didn't have that information.

And I think that we kind of jumped out of one fire and could have jumped into

another by adding in ancient grains.

Like what, what information do we have on ancient grains?

Those weren't traditionally used as pet food ingredients either.

So they can be lacking some of the same research that our grain free ingredients

had like the pulses and the legumes and we could have created a whole nother problem.

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 we had had the research be there to be able

to back it up, we would have been able to go on the things that we knew instead

of just kind of throw the kitchen sink at it and hope that something sticks.

Dr. Bradley Quest: I think Katie brought up a, you know, a lot of great, great

points there about, you know, was there enough research around grain free

before 40 percent of the industry was, you know, feeding grain free diets?

Is there enough research out there 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 research done into adding, You know, some

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 food companies 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 talked about it before, but, um, pet food

companies need to do research.

with their diets.

They need to do feeding studies.

And if they're not, you need to ask them why they don't do it.

And if they are doing them, ask them why they're not sharing the results.

Dr. Katy Miller: Well, and really it's a huge competitive advantage

to be able to say that you have done research on your foods.

You've actually fed these to dogs 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 able to use a real life situation and test

these diets, there's no reason that you shouldn't be doing this testing and making

sure that these diets are complete and balanced before they're in the market.

Dr. Bradley Quest: People look at us being, you know, our consulting

company and our research arm of that 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 of diets, but what we are advocates of

is actual truth and good research.

So.

You know, that was the reason why we did our research and why we

tried to investigate this so much because we wanted to know if there

actually was something to this.

We should know about it because we, we touched so many products

in the, in the pet food space.

We did as much as probably anybody did to try to investigate this and

there just is no definitive link between any of these diets and DCM.

So of all the things we talked about today, perhaps

the most salient point is this.

When scientific rigor takes a backseat to speculation and unsubstantiated

fear mongering, the consequences can have seismic effects for entire

industries, and more importantly, for the health of our pets.

The DCM controversy, whether manufactured or misunderstood, serves as a reminder

that transparent research Evidence based product development and good old

critical thinking should always be the key drivers of pet nutrition innovation.

Not fear, not marketing, and not the profit interests of big business.

As Daniel points out, the pet nutrition space is rife with misinformation.

And placing the burden of scientific literacy on veterinarians and other

industry stakeholders is no longer enough to ensure the best interests

of our canine and feline companions.

is taken to heart.

Rather, those who can educate themselves and who are willing to challenge

narratives that lack substantive evidence to back them up will be crucial to

ensuring history doesn't repeat itself.

The only way for you to ensure you're getting accurate

information is to make sure that you are personally scientifically literate

enough to evaluate statements on your own, that you understand, given the

tools that are available to you in this day and age between internet

technologies and what have you.

That you can run this stuff down on your own.

If you have to rely on somebody else telling you, that

ought to be how things work.

Like there, it can't be the case that we're all experts in every

scientific domain that we can do that.

You know, there's plenty of hyper technical stuff that if somebody was

like, well, Dan, which of these two theories 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.

And in those fields, it's like, of course, very useful to have experts

that you can go, Well, these people said that, and they're the experts.

We trust them.

It is not that way in the veterinary nutrition world, unfortunately.

And, um, You gotta improve your scientific literacy.

That's just kind of the sad reality of the current situation.

So, lots to unpack today, but I think if

we takeaway, maybe it's this.

When it comes to complex topics like this, The importance of

research cannot be overstated.

It's only through peer reviewed, collaborative studies that we

can truly get to the bottom of DCM and other hard hitting topics

impacting pets and their people.

If you'd like to learn more about DCM, check out our wealth of previous

episodes, which we've linked in the show notes for today's episode.

These include conversations highlighting the true incidence rates of DCM and

how they don't match up with what was reported to and by the FDA.

Look for the episode titled, A Mountain or a Molehill, for that one.

In our Pawing Through the Research episode, we discussed how we can use

literature reviews to pave the way for future research and to debunk understudied

or unsubstantiated preconceptions about pet health and nutrition.

We've also shared an episode about how study design can make or break a piece

of research, and how pet parents can empower themselves to think critically

about the studies they read before jumping to conclusions, or believing the

conclusions that others have jumped to.

Check out our Think Twice episode to get the scoop on study design.

And stay tuned for a future episode on how to interpret scientific literature so

you can learn how to make the best, most informed decisions for you and your pet.

Thank you for tuning in to another episode of Barking Mad.

If you want to learn more about us or BSM Partners, please visit us at www.

bsmpartners.

org.

Don't forget to subscribe on your favorite leading podcast platform and share it with

a friend to stay current on the latest pet industry trends and conversations.

A huge thank you to Daniel Shuloff for sharing his

perspectives on today's episode.

If you'd like to keep up with him in the Keto Natural Pet Foods lawsuit,

we've linked some resources for you in the show notes of this episode.

We'd also like to thank Parker Dodson with podcastvideos.

com for his post production support, as well as the dedicated team behind

this podcast, Adamiette Thomas, Mili Bowden, Kate Wright, Katie Wolf, and Dr.

Katie Miller.

An extra thank you to Leanne Haggerty and Michael Johnson

in support of this episode.

See you next time!