Download - Purina Complaint Against Blue Buffalo
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1IN THE UNITED STATES DISTRICT COURTFOR THE EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
NESTL PURINA PETCARE COMPANY,
Plaintiff,
v.
THE BLUE BUFFALO COMPANY LTD.,
Defendant.
)))))))))
Case No. 4:14-cv-00859-RWS
JURY TRIAL DEMANDED
SECOND AMENDED COMPLAINT
Plaintiff, Nestl Purina PetCare Company (Purina), for its Second Amended Complaint
against defendant The Blue Buffalo Company Ltd. (Blue Buffalo or Defendant), and
pursuant to Federal Rule of Civil Procedure 15(a)(2), hereby alleges and states as follows:
NATURE OF ACTION
1. This is an action for false advertising, commercial disparagement, and unjust
enrichment arising from defendant Blue Buffalos pattern of false and deceptive advertising.
This is also an action for declaratory judgment pursuant to 28 U.S.C. 2201 et seq. and Federal
Rule of Civil Procedure 57, seeking a declaration that Purinas filing of this false advertising
action against Blue Buffalo and related statements regarding this action do not constitute
defamation or other actionable disparagement of Blue Buffalo.
2. With tens of millions of dollars in advertising and a small army of in-store
marketers, Blue Buffalo has targeted its advertising at ingredient-conscious pet owners. It has
become increasingly clear, however, that Blue Buffalos brand is built on a platform of
dishonesty and deception. Testing from an independent laboratory reveals that Blue Buffalo is
falsely advertising its pet food as containing NO Chicken/Poultry By-Product Meals when, in
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2fact, Blue Buffalo pet food contains significant amounts of chicken/poultry by-product meals.
Contrary to Blue Buffalos so-called True Blue Promise, many Blue Buffalo products also
contain corn, other grains, and artificial preservatives when they promise otherwise.
3. Spending roughly $50 million per year on advertising, Blue Buffalo puts heavy
emphasis on its ingredient and nutritional claims throughout its website, product packaging, and
advertisements. Despite Blue Buffalos massive advertising barrage, Purina has discovered that
Blue Buffaloand not the big name pet food manufacturers Blue Buffalo routinely criticizes
in its advertisingis concealing the truth about the ingredients in, and benefits of, its products.
As Blue Buffalos CEO, Bill Bishop, admitted publicly after Purina filed this lawsuit:
Slap on a good label, come up with a slogan, and off you go . . .There were already a lot of smoke and mirrors in how pet food wasadvertised, and that was the sort of stuff we were good at.
Barrett, Paul M., Dog Food Fight! Purina Says Blue Buffalo is Built on Lies, Bloomberg
Businessweek Companies & Industries (July 24, 2014).
4. Blue Buffalo has indeed mastered the art of smoke and mirrors. Investigation
and scientific testing by an independent laboratory completed in April 2014 reveals that certain
Blue Buffalo products in fact contain poultry by-product meal and that Blue Buffalo products
labeled grain-free contain rice hulls and/or corn. (See Exhibit A). Testing was conducted using
samples of multiple formulas of Blue Buffalo pet food purchased at retail stores on both the East
and West Coasts.
5. Fundamental to Blue Buffalos advertising are categorical assertions that Blue
Buffalo products are allegedly superior to competitor brands. Through Blue Buffalos advertising
in which it advocates its products as made with only the finest natural ingredients and free
from less than desirable ingredients such as chicken/poultry by-product meals, corn, and
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3preservatives, Blue Buffalo has become a pet food brand that consumers have come to
associatefalsely with very high, ultra-premium healthy pet food. To make matters worse,
Blue Buffalo charges very high ultra-premium prices based on the same false attributes. Blue
Buffalos products are significantly more expensive than the pet food products they use for
comparison purposes on their website.
6. Another hallmark of Blue Buffalos advertising is a vicious and false attack on all
big name pet foods. Among these, the biggest falsehood is Blue Buffalos lengthy national
advertising campaign claiming that big name pet food manufacturers are concealing the truth
about the ingredients in their products. Blue Buffalo has spent millions on television
commercials touting this themewhich is false and unsubstantiated. Purina brings this lawsuit
to stop Blue Buffalos wrongdoing and to set the record straight.
7. Purina is not alone in exposing Blue Buffalos lack of honesty with consumers.
Purina brings this lawsuit in the wake of an investigation and two recent rulings from the
National Advertising Division of the Council of Better Business Bureaus (NAD) that Blue
Buffalo is engaging in misleading advertising practices. At the conclusion of a process where
Blue Buffalo had the opportunity to submit substantiation for its attack advertisements, the NAD
concluded in a detailed written decision: [Blue Buffalo] has not provided any evidence that big
name pet food manufacturers . . . are actively concealing the truth about the ingredients in their
products. (NAD Case #5696, decided March 11, 2014, attached hereto as Exhibit B, hereinafter
NAD Ruling).
8. Consequently, and as the NAD concluded, Blue Buffalo is misleading consumers
not only about the ingredients in its own products, but also about the ingredients in competing
products. The NAD sharply criticized Blue Buffalos advertising tactics and recommended that
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4Blue Buffalo stop unsupported advertising claiming that Blue Buffalos competitors are
misleading consumers. (Id. at 8-10, 14).
9. The NAD also instructed Blue Buffalo to overhaul its True Blue Test, which
Blue Buffalo offers on its website as a comparison tool for consumers to use to compare certain
characteristics of Blue Buffalos products versus those of competitors (including Purina
products). The NAD determined, among other things, that: (a) Blue Buffalo was guilty of
making sweeping allegations about the ingredient content of all products offered by certain
competitors, when in fact such statements may only be true for a fraction of those competitors
product offerings; and (b) the information displayed about competitor products was not always
current. (Id. at 11-4). Blue Buffalo preaches a message of truth, but is not practicing it.
10. After Purinas original complaint was filed, Blue Buffalo appealed the NADs
ruling. On July 9, 2014, a four-member panel of the National Advertising Review Board
(NARB) upheld the original decision of the NAD on appeal. (See Exhibit C). After losing its
appeal, Blue Buffalo finally agreed, reluctantly, that it would strive to abide by the NADs
recommendations, [o]ut of respect for that process, because it voluntarily committed to
participate in the self-regulatory process of the NAD and NARB. (NARB Case #5696, decided
July 9, 2014, hereinafter NARB Ruling).
11. Blue Buffalos pattern of behavior is unlawful and just plain wrong. Through this
legal action, Purina seeks to halt Blue Buffalos pattern of false advertising and consumer
deception.
THE PARTIES
12. Plaintiff Purina is a leading pet food and nutrition company with a rich history
spanning over 85 years. Purina makes and sells pet food, treats, and related products in the
United States and worldwide in grocery stores, mass merchandisers, pet stores, and online.
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5Purina is a Missouri corporation with headquarters at 901 Chouteau Avenue, St. Louis, Missouri
63102.
13. On information and belief, Defendant Blue Buffalo is a Delaware corporation
with its headquarters at 444 Danbury Road, Wilton, Connecticut 06897. Blue Buffalo is in the
business of advertising and selling pet food, pet treats, and related products.
JURISDICTION AND VENUE
14. This is an action for false advertising and arises under the Trademark Act of 1946,
15 U.S.C. 1051, et seq. (Lanham Act) and the common law of the State of Missouri.
15. This Court has subject matter jurisdiction over this action pursuant to 15 U.S.C.
1121 and 28 U.S.C. 1331, 1338 and 2201. This Court has supplemental jurisdiction over the
related state and common law claims pursuant to 28 U.S.C. 1338(b) and 1367(a). This Court
also has subject matter jurisdiction on the separate and independent ground of diversity of
citizenship pursuant to 28 U.S.C 1332(a). The parties are citizens of different states and the
amount in controversy exceeds $75,000, exclusive of interest and costs.
16. This Court has personal jurisdiction over Blue Buffalo pursuant to Missouri
Revised Statute 506.500 because, as admitted by Blue Buffalo in its Answer to Purinas First
Amended Complaint (Dkt. 21 at 12), Blue Buffalo advertises and sells its products to retailers
and consumers in Missouri. Upon information and belief, Blue Buffalo and its agents have
prepared, disseminated, made available or broadcasted television commercials, in-person
promotions, print advertisements, Internet advertisements and related materials, all of which are
at issue here, in this District. On information and belief, Blue Buffalo employs pet detectives
in Missouri to promote sales of Blue Buffalo products to consumers in various retail outlets in
Missouri. Blue Buffalo maintains a registered agent for service of process in Missouri.
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617. Venue is proper in this District under 1391(b)(2) and (c) because a substantial
part of the events or omissions giving rise to this action have occurred and/or will occur within
this District, and the Defendant resides in this District.
BLUE BUFFALOS FALSE AND MISLEADING ADVERTISING ACTIVITIES
18. Blue Buffalos advertising strategy is centered around its ingredient and product
claims and promises, and the value of its brand is dependent on such claims. Nutritional,
ingredient and product performance claims pervade Blue Buffalos website, its product
packaging, its print ads, its television ads and other like advertising materials. As a consequence
of and in reliance on these claims, retailers and consumers are willing to pay and have paid a
substantial price premium for Blue Buffalo products.
19. Blue Buffalos false advertising statements have had wide consumer reach. On
information and belief, Blue Buffalo spent over $50 million on advertising in 2013 comprised of
a wide array of national print, television, and Internet ads. On information and belief, Blue
Buffalo is poised to spend another $50 million or more on advertising in 2014. Many of these
advertisements include statements that are materially false and misleading, and were made with
the specific intent to persuade consumers to purchase Blue Buffalo products. Consumers have
relied on these false and misleading statements in making their decisions to purchase Blue
Buffalo products.
NO Chicken/Poultry By-Product Meals
20. Blue Buffalo advertises a so-called TRUE BLUE PROMISE claiming
unequivocally that its products contain NO chicken/poultry by-product meals.
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7Source: Blue Buffalo website 4/22/2014
In addition to its website, Blue Buffalo places the True Blue Promise on every label of its
products. Additionally, Blue Buffalos sales employees verbally communicate this promise to
consumers on-site at pet stores. The True Blue Promise is false because Blue Buffalo products
actually contain chicken/poultry by-product meals and other ingredients, contrary to the
promise.
21. Blue Buffalo tries to boost the credibility of its advertising through more detailed
explanations and Q&A segments on its website:
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8Source: Blue Buffalo website 4/22/2014
Source: Blue Buffalo website 4/22/2014
22. Blue Buffalos statements that its products contain NO chicken/poultry by-
product meals and its attempt to differentiate Blue Buffalo products from competing brands are
false because Blue Buffalos products actually contain a significant amount of chicken/poultry
by-product meals. In short, Blue Buffalo has broken its True Blue Promise to consumers. For
example, Blue Buffalo attempts to differentiate its products from many of the leading pet food
brands by contending that Blue Buffalo products do not contain ingredients . . . considered less
than desirable by pet parents such as chicken or poultry by-product meals. This is false.
23. Purina engaged an independent laboratory to conduct testing to determine the
ingredient makeup of a number of Blue Buffalo products. The scientific testing revealed that,
contrary to Blue Buffalos representations to consumers that its products do not contain
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9chicken/poultry by-product meals, Blue Buffalos products actually do contain a substantial
percentage of chicken/poultry by-product mealsnot trace amounts. Indeed, the testing revealed
that chicken/poultry by-product meals were the most prevalent ingredients and comprised
upwards of 20% of the product by weight of some of the tested Blue Buffalo products.
Superior Nutrition
24. Blue Buffalo makes statements that consumers should Choose BLUE because
its products allegedly provide pets with superior nutrition as compared to those of competitor
products. Blue Buffalos superior nutrition claims are premised in part on its assertions that its
products do not contain certain ingredients such as chicken/poultry by-product meals. In
addition, Blue Buffalo attributes special nutritional significance to its exclusive LifeSource
Bits.
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Source: Blue Buffalo website 4/22/2014
25. Blue Buffalos superior nutrition claims were sharply criticized in the recent
NAD decision. Particularly, the NAD concluded:
[Blue Buffalo] has not provided any evidence that meat by-product mealis not a high quality ingredient or that it is not nutritious, or that productswhich include meat by-product meal are less nutritious than BLUEs orsimilarly positioned products that do not.
(NAD Ruling at 10). In its criticism of Blue Buffalos efforts to disparage the nutritional value of
by-product meals, the NAD also explained that [i]n fact, NAD has noted in prior decisions
involving advertising for pet foods that chicken by-product meals are nutritious. (Id.). In
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support of its finding that Blue Buffalos statements alleging superior nutrition were false and
baseless, the NAD explained:
some dogs and cats have allergies or sensitive stomachs which precludeeating foods which include meat, and no allowance is made for productsdesigned for pets with dietary restrictions in any of the challengedadvertisements.
(Id.).
26. Blue Buffalos statements that its products are nutritionally superior to those of
competitors are false because, as the NAD found, there is no evidence that Blue Buffalos
products are any more nutritious than similarly positioned competitive products. Furthermore,
Blue Buffalo cannot distinguish its products as allegedly superior over competitive products
for not having chicken/poultry by-product meals as the testing reveals that its products contain
this precise ingredient.
Comparative Advertising
27. Blue Buffalos advertising features comparisons between Blue Buffalo products
and those of its competitors, which represents and sends a message to consumers that Blue
Buffalos products contain better ingredients and that Blue Buffalo is, unlike its competitors,
honest about the ingredients that it uses. Blue Buffalo even offers to give consumers information
about How [] some brands categorize certain ingredients to make their food appear healthier,
falsely implying that Blue Buffalo is honest and does not engage in such tactics.
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Source: Blue Buffalo website 4/22/2014
28. Blue Buffalo has aired and continues to air nationally televised commercials
featuring pet owners who allegedly switch to Blue Buffalo after learning the truth about big
name dog foods. For example, one of Blue Buffalos attack ads states verbatim:
When pet parents learn the truth about big name dog foods, they switchto Blue Buffalo. All Blue Life Protection foods are made with real meatfirst, plus wholesome whole grains, veggies and fruit.
I didnt know how my dogs big name food stacked up, so I went to Blueswebsite, and I took the True Blue Test. It was clear, Blue had everythingthat I wanted and none of the stuff I didnt want.
Only Blue has LifeSource Bits. A precise blend of beneficial nutrients.And now weve enhanced LifeSource Bits with powerful antioxidant-richingredients, including pomegranate, pumpkin, spinach, apples,blackberries, blueberries and cranberries. We call it our Super 7 package.When you love them like family, you want to feed them like family.Thats why I feed him Blue. With Super 7 Life Source Bits, Blue is betterthan ever. Take the True Blue Test today, and see how your dogs foodcompares to Blue.
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(Blue Buffalo website: http://www.bluebuffalo.com/tv-commercials) (emphasis added).
Source: Blue Buffalo website 4/22/2014; BLUE Dog Food commercial
29. Despite being told by the NAD to cease its unsubstantiated attacks on competing
brands, Blue Buffalo continues to pepper consumers with these false messages.
30. To help misleadingly differentiate itself from other competing brands, Blue
Buffalo offers through its website what it has coined the True Blue Test, which allows
consumers to compare the alleged ingredient contents of Blue Buffalos products with those of
other leading brands, including those of Purina. Among other claims, the True Blue Test
falsely advocates that Blue Buffalos products NEVER Has Chicken (or Poultry) By-Product
Meals and identifies competing leading brands that, by Blue Buffalos assessment, do. (See,
e.g., id.). These statements are materially false because Blue Buffalo products, as tested, contain
chicken/poultry by-product mealsin significant amounts. Further, many Blue Buffalo products
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contain corn and artificial preservatives, also directly contrary to the representation that Blue
Buffalo products NEVER contain these ingredients.
Source: Blue Buffalo website 4/22/2014
31. Consumers of pet food and related products are becoming increasingly ingredient-
conscious and are being more particular than ever about the types of foods that they feed their
pets. Indeed, consumers rely on ingredient claims and other statements about nutritional value
and food quality when deciding the brand of food to feed their pets. Many consumers have
chosen to purchaseand pay a substantial premium forBlue Buffalo brand products over other
leading brands because of the false nutritional statements and promises made by Blue Buffalo,
including, for example, false statements that its products: (i) do not contain chicken/poultry by-
product meals; and (ii) contain none of the ingredients that ingredient-conscious consumers
would not want; when in fact, Blue Buffalos products contain chicken by-product meals and
other ingredients that Blue Buffalo itself advocates ingredient-conscious consumers should not
want.
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LifeSource Bits
32. Blue Buffalo has created what it calls LifeSource Bits that it represents as
containing special vitamins, minerals and antioxidants that are allegedly cold-formed. These
bits are distinct from and a different color than the kibble that constitutes about 95% of the
Blue Buffalo pet food as a whole. Blue Buffalo touts its LifeSource Bits as containing a precise
blend of vitamins, minerals and antioxidants and offering a series of special health benefits for
pets above and beyond the nutrition in Blue Buffalos own kibbles and other pet foods:
Source: Blue Buffalo website 4/22/2014
33. Blue Buffalo falsely implies that its LifeSource Bits are superior in nutritional
quality to vitamins, minerals, antioxidants and other ingredients included in other competing pet
food products. For example, Blue Buffalo includes LifeSource Bits on the results page of its
True Blue Test, advertising LifeSource Bits as one of the qualities that allegedly makes Blue
Buffalos products superior to those of competitors.
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Source: Blue Buffalo website 4/22/2014
34. In actuality, the low level of certain nutrients in Blue Buffalos LifeSource Bits
do not render them superior. Similarly, Blue Buffalo makes false and misleading statements that
its LifeSource Bits contain certain levels of vitamins, minerals and nutrients that provide specific
health benefits such as a healthy skin and coat and healthy bones and tissue.
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Source: Blue Buffalo website 4/22/2014
35. For example, Blue Buffalo claims that its LifeSource Bits contain taurine for
healthy eyes and heart. Taurine is an essential amino acid for cats, as cats have a limited ability
to synthesize it from other nutrients. Yet tests reveal that Blue Buffalos LifeSource Bits have
significantly less taurine than the kibbles themselves, constituting only 0.01% of the LifeSource
Bit. (See Exhibits D, E). Contrary to Blue Buffalos claim of greater potency, removing the
LifeSource Bits from the kibble would actually increase the amount of taurine per serving of
Blue Buffalo pet food. In fact, in order to obtain the same level of taurine from the touted
LifeSource Bits would require nearly 40 times as many LifeSource Bits as the Blue Buffalo
kibbles themselves. (See Exhibits D-G). The level of taurine in Blue Buffalos LifeSource Bits
is approximately ten times less than that required by the Association of American Feed Control
Officialsan independent industry standard that Blue Buffalo claims to follow on its website.
36. A similar circumstance exists with respect to lysine, another important amino
acid. Despite claiming that its LifeSource Bits contain lysine for growth and development, in
fact the LifeSource Bits contain less lysine than Blue Buffalos kibble. As with taurine, a pet
would get more lysine per serving if Blue Buffalos product contained no LifeSource Bits.
37. Blue Buffalo makes similarly dubious claims regarding the levels of omega-3 and
omega-6 fatty acids in its LifeSource Bits. Tests reveal that Blue Buffalos LifeSource Bits have
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slightly less omega-6 fatty acids than their regular kibble. Therefore, a pet would receive more
omega-6 fatty acids per serving if Blue Buffalo added no LifeSource Bits at all. Furthermore,
the LifeSource Bits are such a small fraction of the pet food as a whole that any additional
omega-3 fatty acids in the LifeSource Bits contribute a negligible amount per serving to a pet.
38. Blue Buffalos deceptions also extend to the vitamins in the LifeSource Bits.
Blue Buffalo advertises its LifeSource Bits for their levels of Vitamin B12, but in fact the
LifeSource Bits contain 2-3 times less Vitamin B12 than the regular kibble.
39. In sum, Blue Buffalos LifeSource Bits do not contain the requisite levels of
vitamins, minerals or nutrients to provide all of the health benefits that Blue Buffalo alleges. As
such, Blue Buffalos LifeSource Bits are precisely the type of smoke and mirrors touted by its
Chairman and Founder.
40. Blue Buffalo also makes false and misleading statements implying that the cold-
formed process that it purportedly uses to create its LifeSource Bits is the only way to preserve
the vitamins, minerals, antioxidants and enzymes contained in pet food and falsely asserts that its
competitors do not take steps to similarly preserve the nutritional qualities of their products. Blue
Buffalo also makes statements that other manufacturers process their foods with heat as high as
350 . . . [which] can destroy the potency of many vitamins, minerals, antioxidants and important
enzymes, while failing to disclose the reason why foods are processed with heat (e.g., to kill
harmful bacteria) and that, in fact, most of Blue Buffalos products are processed using the same
high-heat methods. (See, e.g., id.).
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Source: Blue Buffalo website 4/22/2014
Pet Treats
41. While Blue Buffalos focus on LifeSource Bits pervades its advertising for dog
and cat food, Blue Buffalo also advertises products allegedly providing specific health benefits.
For example, Blue Buffalo advertises a Jolly Joints pet treat that Helps Promote Healthy
Joints and Hips.
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Source: Blue Buffalo website 9/14/2014
42. By Blue Buffalos own admission, these pet treats contain only 300mg/kg of
glucosamine. An entire bag of Jolly Joints contains 92 grams of pet treats, and therefore contains
just 27.6 mg of glucosamine. Based upon published studies of glucosamine supplementation in
dogs, a 50-pound dog would have to eat hundreds of treats a day to receive the claimed benefit,
well above the intermittent or supplemental feeding Blue Buffalo recommends for its Jolly
Joints pet treats.
Natural Ingredients/NO Artificial Preservatives
43. Blue Buffalo has made and is currently making statements and promises to
consumers that its products contain Only the Finest Natural Ingredients and have NO
Artificial Preservatives.
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Source: Blue Buffalo website 4/22/2014
Source: Blue Buffalo website 4/22/2014
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44. These statements and promises are repeated throughout Blue Buffalos website,
its national television commercials and other advertising materials. Blue Buffalos employees
also make verbal statements to consumers that Blue Buffalos products contain Only the Finest
Natural Ingredients and like statements. Blue Buffalo even has a staff of salespeople who dress
similarly to pet store employees and approach consumers in pet stores to inform consumers of
the quality of Blue Buffalos products as compared to competitive products, including the
falsehood that Blue Buffalos products do not contain any chicken/poultry by-product meals and
that Blue Buffalo honors the True Blue Promise.
45. Blue Buffalos statements and promises that its products contain Only the Finest
Natural Ingredients and have NO Artificial Preservatives are false and misleading because,
among other things, Blue Buffalos products contain chicken/poultry by-product meals that
include artificial preservatives that are not present in chicken/poultry meal.
Grain-Free
46. Blue Buffalo advertises several of its products, including its Freedom and
Basics lines, as being grain-free, often as part of the product name. Blue Buffalo also
advertises that all of its products contain no corn, wheat or soy.
47. Grain-free pet foods are desired by many consumers who believe that dogs and
cats should be fed as carnivores because they may not get sufficient nutrients or have difficulty
digesting grains. Blue Buffalo attempts to seize upon consumers beliefs and advocates that not
including grains and glutens in its products is beneficial because consuming grains and glutens
can cause allergic reactions.
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Source: Blue Buffalo website 4/22/2014
Source: Blue Buffalo website 4/22/2014
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Source: Blue Buffalo website 4/22/2014
Source: Blue Buffalo website 4/22/2014
48. Blue Buffalos statements that its products are grain-free and contain no corn,
wheat or soy are, however, false and misleading as testing reveals that Blue Buffalo products
indeed do contain these ingredients. Specifically, independent testing commissioned by Purina
found grains (rice hulls and/or ground corn) in Blue Buffalos LifeSource Bits, which are
contained in all four Blue Buffalo grain-free products. These grains were found in
concentrations of up to 3% by weight.
49. By falsely advertising its products as grain-free when its products actually
contain grains, Blue Buffalo is deceiving consumers who intend to purchase grain-free products.
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Human-Grade Pet Food
50. Blue Buffalo makes statements that its products are human-grade and fit for
human consumption, and has adopted the slogan Love them like family. Feed them like family.
to convey this message to consumers. (See, e.g., Exhibit H).
Source: Blue Buffalo website 4/22/2014
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Source: Blue Buffalo website 4/22/2014
51. Blue Buffalos statements that its products are human-grade and/or fit for human
consumption are materially false because Blue Buffalos products contain ingredients such as
chicken/poultry by-product meals that are not human-grade.
BLUE BUFFALOS PRIOR DECEPTIVE PRODUCTLABELING AND ADVERTISING PRACTICES
52. In addition to the recent NAD dispute, Blue Buffalo has been no stranger to legal
disputes centered on its pattern of long-standing deceptive advertising practices. In 2008, Blue
Buffalos nutritional boasts were challenged by a competitor before the NAD. That challenge
resulted in, among other things, the NAD instructing Blue Buffalo to discontinue its no animal
by-products claims when made in reference to pet foods containing fish meal, lamb meal and/or
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liver. (See NAD Case #4892 at 10-11, decided July 31, 2008, attached hereto as Exhibit I). In
response to the NADs recommendations related to its no animal by-products claims, Blue
Buffalo has switched to an equally untrue claim that its products NEVER have Chicken (or
Poultry) By-Product Meals.
53. The NAD also recommended that Blue Buffalo discontinue the like you feed
your family portion of its slogan in connection with its non-organic product lines. (Id. at 14).
Despite submitting voluntarily to the NADs jurisdiction, Blue Buffalo did not make any
material changes to its slogan in response to the NADs recommendation and continues to
deceptively advertise all of its products using its Love them like family. Feed them like family.
slogan.
54. Rather than revise its advertising to remove deceptive content, Blue Buffalo has
actually increased the misleading and deceptive nature of its advertising over the years. It is time
for Blue Buffalos false and deceptive advertising practices to end.
BLUE BUFFALOS REACTION TO PURINAS COMPLAINT
55. On May 6, Purina filed the original version of this complaint. In addition to its
original complaint, Purina (A) issued a press release noting that it had filed suit, (B) launched a
website, www.petfoodhonesty.com, that hosted a copy of the original complaint, and (C) made
additional related statements regarding this lawsuit to the media.
56. On the day the original complaint was filed, Blue Buffalos Founder and
Chairman, Bill Bishop, made a public statement about the matter, claiming that Purina brought
suit to disparage and defame Blue Buffalo.
57. Mr. Bishop made a second public statement regarding the original complaint on
May 8, 2014 (see Exhibit J), which stated, in part, as follows (emphasis added):
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In my first letter I told you that Blue Buffalo would be respondingaggressively to Nestl Purinas lawsuit and its outrageous allegations withregard to BLUEs product quality. The first phase of this response will bea lawsuit against Nestl Purina, which will be filed in a matter of days. Wewill be suing both their company and those individuals who areresponsible for this malicious attempt to undermine the trust of our petparents.
58. Mr. Bishops statement put Purina in reasonable apprehension of suit for
defamation.
COUNT I(False Advertising Under the Lanham Act, 15 U.S.C. 1125(a))
59. Purina repeats and incorporates herein each and every allegation set forth in
paragraphs 1 to 58 of this Complaint.
60. Blue Buffalo, on or in connection with goods used in interstate commerce, made
and continues to make false statements of fact and false representations of fact as to the nature,
characteristics and/or qualities of its goods. Blue Buffalo has also made false statements of fact
and representations of fact as to the goods of its competitors.
61. Blue Buffalos false statements of fact and false representations of fact were made
and continue to be made in commercial advertising and on product labels in a manner material to
the publics decision to purchase Blue Buffalos products rather than those of competitors,
including Purina.
62. Such acts by Blue Buffalo constitute false statements, descriptions and
representations of fact in commercial advertising and are a violation of Section 43(a) of the
Lanham Act, 15 U.S.C. 1125(a).
63. As a proximate result of Blue Buffalos willful conduct, Purina has suffered
irreparable harm, including irreparable harm to its reputation and goodwill and the reputation of
its products, for which it has no adequate remedy at law, and Purina will continue to suffer
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irreparable injury unless and until Blue Buffalo ceases making false statements in connection
with and to advertise its products.
64. Unless Blue Buffalos activities cease, Blue Buffalo will unjustly profit from sales
of its products that are based on consumer reliance on the false statements that it has made and is
making about its products. Purina has suffered and will continue to suffer economic harms,
including losses in sales as proximately caused by Blue Buffalos actions.
65. Purina has suffered and will continue to suffer economic harms and injuries to its
commercial interests, including losses in sales, which have been and are being proximately
caused by Blue Buffalos actions and misrepresentations.
66. Pursuant to 15 U.S.C. 1117, Purina is entitled to actual damages to be
determined at trial, to have such damages trebled, to disgorgement of Blue Buffalos profits, and
to be reimbursed for the costs of this action and its related attorneys fees.
COUNT II(Commercial Disparagement Under the Lanham Act, 15 U.S.C. 1125(a))
67. Purina repeats and incorporates herein each and every allegation set forth in
paragraphs 1 to 66 of this Complaint.
68. Blue Buffalo, on or in connection with goods used in interstate commerce, made
and continues to make false comparisons of its products as compared to those of competitors,
including Purina.
69. Blue Buffalos false statements of fact and false comparisons were made and
continue to be made in commercial advertising and on product labels in a manner material to the
publics decision to purchase Blue Buffalos products over those of competitors, including
Purina.
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70. Such acts by Blue Buffalo constitute false statements, descriptions and
representations of fact in commercial advertising and are a violation of Section 43(a) of the
Lanham Act, 15 U.S.C. 1125(a).
71. As a proximate result of Blue Buffalos willful conduct, Purina has suffered
irreparable harm, including irreparable harm to its reputation and goodwill and the reputation of
its products, for which it has no adequate remedy at law, and Purina will continue to suffer
irreparable injury unless and until Blue Buffalo ceases making false statements and comparisons
in connection with and to advertise its products pursuant to 15 U.S.C. 1116.
72. Unless Blue Buffalos activities cease, Blue Buffalo will unjustly profit from sales
of its products that are based on consumer reliance on the false and deceptive comparisons that it
has made and is making about its products as compared to those of competitors, including
Purina.
73. Purina has suffered and will continue to suffer economic harms and injuries to its
commercial interests, including losses in sales, which have been and are being proximately
caused by Blue Buffalos actions and misrepresentations.
74. Pursuant to 15 U.S.C. 1117, Purina is entitled to actual damages to be
determined at trial, to have such damage trebled, to disgorgement of Blue Buffalos profits, and
to be reimbursed for the costs of this action and its related attorneys fees.
COUNT III(Common Law Unfair Competition)
75. Purina repeats and incorporates herein each and every allegation set forth in
paragraphs 1 to 74 of this Complaint.
76. Blue Buffalo has engaged in and continues to engage in unfair competition by
making false, misleading and deceptive statements about its products while disparaging the
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products of competitors. Blue Buffalos misleading and deceptive statements have caused and
continue to cause consumers to purchase Blue Buffalos products over the products of
competitors, including Purina.
77. Blue Buffalo acted and continues to act in bad faith in making claims about its
products that it knew and knows to be materially false and deceptive.
78. Blue Buffalos acts constitute false advertising and unfair competition under the
common law of the State of Missouri.
COUNT IV(Common Law Unjust Enrichment)
79. Purina repeats and incorporates herein each and every allegation set forth in
paragraphs 1 to 78 of this Complaint.
80. Blue Buffalo has enjoyed substantial profits from the sale of its products to
consumers who purchased Blue Buffalos products over the products of competitors based on
false statements made by Blue Buffalo, including that Blue Buffalos pet food products do not
contain chicken/poultry by-products meals when its products in fact do. These statements made
by Blue Buffalo include false comparative statements about the ingredients and nutritional values
of Blue Buffalos product as compared to those of competitors, including Purina.
81. Blue Buffalo would not have made such sales or earned the profits therefrom but
for the misrepresentations and false statements that it made and continues to make about its
products. On information and belief, Blue Buffalos profits were further inflated via cost savings
for less expensive ingredients than advertised. For example, poultry by-product meal is
generally less expensive than the real meat that Blue Buffalo references in its advertising.
82. Blue Buffalos gain from sales of falsely advertised products and disparagement
of competitors came at the expense of competitors, including Purina.
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83. Blue Buffalo has been unjustly enriched as a result of its false statements and
misleading advertising practices, and under principles of equity should not be permitted to retain
these unjustly acquired gains.
COUNT V(Declaratory Judgment)
84. Purina repeats and incorporates herein each and every allegation set forth in
paragraphs 1 to 83 of this Complaint.
85. An actual and immediate controversy exists between the parties hereto in
connection with Blue Buffalos threats to sue Purina and certain unnamed individuals with
respect to the statements made in the original complaint and related statements to the media.
86. Purina seeks a declaration by this Court that this action and related statements do
not constitute defamation, including because such statements are true and are privileged
statements made in connection with litigation.
87. A declaration by this Court as outlined in paragraph 86 above would resolve all or
a complete part of the controversy between the parties as to this Count, prevent Blue Buffalo
from continuing to threaten legal action, determine the parties rights and responsibilities for the
statements made in this action and related statements, and be in the interests of justice.
PRAYER FOR RELIEF
WHEREFORE, Purina prays that the Court enter a judgment against Blue Buffalo:
(a) Finding that, by the acts complained of above, Blue Buffalo has engaged
in false advertising in violation of 15 U.S.C. 1125(a);
(b) Finding that, by the acts complained of above, Blue Buffalo has engaged
in false advertising in violation of Missouri common law;
(c) Finding that the acts complained of above were willful;
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(d) Finding that Blue Buffalo has been unjustly enriched as a result of its false
advertising and false comparative advertising tactics;
(e) Enjoining Blue Buffalo, its agents, servants, employees, officers, and all
persons in active concern and participation with Blue Buffalo from
making false and/or misleading statements about its products, including
statements that are likely to lead consumers to believe that its pet food
products are free from by-product meals or are of a human-grade quality;
(f) Enjoining Blue Buffalo, its agents, servants, employees, officers, and all
persons in active concern and participation with Blue Buffalo from
making false and/or misleading statements about its products as compared
to those of competitors, including that its pet food products are more
nutritious, free from chicken/poultry by-product meals or are of a human-
grade quality;
(g) Requiring Blue Buffalo to engage in corrective advertising, including
advertising that informs consumers that Blue Buffalos pet food products
are not free from by-product meals and are not of a human-grade quality;
(h) Requiring Blue Buffalo to destroy all product packaging and all other
materials displaying false statements, including that its pet food products
are free from by-product meals and are of human-grade quality (e.g., the
Feed them like family. slogan);
(i) Declaring that this is an exceptional case due to the willful nature of
Blue Buffalos conduct;
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(j) Ordering Blue Buffalo to account to Purina for all gains, profits, savings
and advantages obtained by Blue Buffalo as a result of its false advertising
and unfair competition and disgorge to Purina restitution in the amount of
such gains, profits, savings and advantages;
(k) Ordering Defendant to pay Purina:
i. Treble actual damages, costs and reasonable attorneys fees
pursuant to 15 U.S.C. 1117;
ii. Blue Buffalos profits and cost savings from the sale of its
products resulting from its false advertising practices; and
iii. Pre-judgment and post-judgment interest;
(l) Declaring that Purinas statements in this action and related statements are
not defamatory or otherwise actionable by Blue Buffalo; and
(m) Awarding Purina such other and further relief as this Court may deem just
and proper.
JURY DEMAND
Purina hereby demands a trial by jury.
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Dated: November 13, 2014 Respectfully submitted,
NESTL PURINA PETCARE COMPANY
/s/ Carmine R. Zarlenga
Carmine R. Zarlenga 386244DC (Lead attorney)MAYER BROWN LLP1999 K Street NWWashington, DC 20006Telephone: (202) 263-3227Facsimile: (202) [email protected]
Richard M. Assmus (pro hac vice)Kristine M. Young (pro hac vice)MAYER BROWN LLP71 South Wacker DriveChicago, Illinois 60606Telephone: (312) 782-0600Facsimile: (312) [email protected]@mayerbrown.com
David A. Roodman, 38109MOBRYAN CAVE LLP211 North Broadway #3600St. Louis, Missouri 63102Telephone: (314) 259-2000Facsimile: (314) [email protected]
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CERTIFICATE OF SERVICE
The undersigned hereby certifies that he caused a true and correct copy of the foregoing
Second Amended Complaint to be served on all counsel of record who are deemed to have
consented to electronic service on this day of November 13, 2014 via the Courts CM/ECF
system.
s/ Carmine R. Zarlenga
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EXHIBIT A
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Windsor Laboratories 894 Hawthorn Avenue Mechanicsburg, PA 17055 Phone: (717) 796-0537 Fax: (717) 796-0537 Microscopic Evaluation of Agricultural Products Members of the American Oil Chemists Society (AOCS) July23,2014
EXPERTREPORTOFJAMESV.MAKOWSKII. EXECUTIVESUMMARYThisReportsummarizesthemicroscopicanalysesIperformedonthefollowingpetfoodstodeterminetheiringredientcontent:
BlueBuffaloLifeProtectionAdultChickenandBrownRice(Dog) BlueBuffaloFreedomAdultGrainFreeChicken(Dog) BlueBuffaloWildernessAdultChickenRecipe(Dog) BlueBuffaloBasicsAdultTurkey&Potato(Dog) BlueBuffaloLongevityLongevityforAdultDogs(Dog) PurinaProPlanSELECTAdultGrainFreeFormula(Dog) PurinaONEbeyOndWhiteMeatChicken&WholeBarleyRecipe(Dog) BlueBuffaloLifeProtectionIndoorHealthChicken&BrownRiceRecipe(Cat) BlueBuffaloFreedomGrainFreeChickenforIndoorCats(Cat) BlueBuffaloWildernessAdultChickenRecipe(Cat) BlueBuffaloBasicsAdultTurkey&Potato(Cat) BlueBuffaloLongevityLongevityforAdultCats(Cat) PurinaONEbeyOndWhiteMeatChicken&WholeOatMealRecipe(Cat) PurinaONEbeyOndSalmon&WholeBrownRiceRecipe(Cat)
Based on the microscopic analyses of these products, I conclude that several of the Blue Buffaloproductstestedcontainmeasurableamountsofchicken/poultrybyproductmealorgrains.II. EXPERIENCEANDQUALIFICATIONSI, JamesV.Makowski,ampresentlyemployedbyMessiahCollege inMechanicsburg,Pennsylvania,asProfessorofBiology. I teachcourses including,amongothers,undergraduatecoursesonCellularandMolecular Biology, Microbiology, and Genetics (all of which include units on microscopic analysismethods andprocedures) and conduct corresponding research. I also teach a seniorundergraduatecourseinBioethics.IearnedaPh.D.inCurriculum&Instruction/ScienceEducationattheUniversityofDelaware, aMasterofArts inBiology atWestChester StateUniversity and aBachelorof Science inBiology at Messiah College. I am the Owner and Microscopist of Windsor Laboratories ofMechanicsburg,Pennsylvania,apositionIhaveheldfor28years.Inthiscapacity,Iconductmicroscopicanalysis for clients in theagricultural industryand related industries, including thepet food industry.AttachedtothisreportasExhibit1ismycurriculumvitaestatingmyqualifications,includingalistofallpublicationsauthoredintheprevious10years.Iamanauthorand the leadeditorofMICROSCOPICANALYSISOFAGRICULTURALPRODUCTS (4thed.2010),withNeilVary,MarjorieMcCutcheonandPascalVeys,publishedby theAmericanOilChemists
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Society.Thisbookistheleadingmanualforthemicroscopicanalysisofagriculturalproducts,includinganimalproteinproducts,intheUnitedStatesandworldwide.Itisusedasaprimarytrainingresourceonthe subject of microscopic analysis of agricultural products by the United States Food and DrugAdministration (FDA). Ispeakwidelyon theuseofmicroscopy forpurposessuchas thedetectionofprohibited protein in ruminant feed, including at workshops conducted by the FDA and NationalInstitutesofHealth (NIH). Ihavealsotaughtnumerous35dayshortcoursesonusingmicroscopytoidentify components in various agricultural products for the Association of American Feed ControlOfficials and the American Association of Cereal Chemists. I have instructed microscopists for theAmerican SoybeanAssociation, including in Jamaica and Trinidad. I am also the Chairperson of theTrainingCommitteefortheAgriculturalMicroscopyDivisionoftheAmericanOilChemistsSociety.III. SCOPEOFENGAGEMENTIwasretainedinFebruary2014byNestlPurinaPetCaretoconductmicroscopicanalysisofseveraldogandcatfoods.Atthetimeofmyretention,IwasaskedtoanalyzeandlistallingredientsthatIwasableto identify inthedogandcatfoodsprovidedtome. Iwasnotawareofthereasonfortherequestedwork until after I completed my analysis. I was not provided with any reasons, hypotheses,expectations, suspicions, or goals associated with my analysis. After completing my independentanalysis, Iwas informed that thepurposeof the requestedworkwas toprocurean independentandunbiased analysis and determination ofwhether Blue Buffalo brand dog and cat foods contain anyingredientsthatBlueBuffalosmarketingmaterialsclaimthattheydonotcontain,includingchickenandpoultrybyproductmealand,forsomeproducts,grains.IV. SOURCINGOFANALYZEDPRODUCTSI was provided and received from Purina by personal delivery on February 27, 2014, the followingcommercially available products: (i) 10 sealed, new, unopened bags of the Blue Buffalo productsidentifiedabove;and (ii)4sealed,new,unopenedbagsofPurinadogandcatpet foodsas identifiedabove from Christopher Purschke at Purina. It ismy understanding that these bagswere obtainedcommercially from a PetCo retail store inornearMechanicsburg. OnMarch 5, 2014, I receivedbyFederalExpressanadditional14unopenedbags,duplicatesoftheoriginalfoods,fromMarkRogersatPurina. Thepurposeofsourcingduplicateproductswas toobtainsamples fromdifferentgeographicregions and production batches. I transported the bags to the microbiology laboratory at MessiahCollege,where theywere securely stored pending examination. I personally inspected each bag toensurethattheywerenew,unopened,andingoodcondition.TheunopenedbagswereidentifiedandtaggedonMarch12,2014.Eachcommercialproductpackagewasrandomlyanduniquelylabeledusingasimplenumberingmethod(0012014,0022014,0032014,etc.), and matching labels were applied to product sample bags (Ziploc brand freezer bags). Anapproximately 200gram sample of pet food was removed and weighed from each identifiedcommercialproductpackageandplacedinthecorrespondinglabeledZiplocbag,whichwasthensealed.Afterallofthepetfoodproductpackagingwaslabeled,andthecorrespondingsampleswereplacedandsealedintheproperlyidentifiedandlabeledZiplocbags,thecommercialproductpackagingcontainingtheremainderofthepet foodsshippedtomewasreturnedtoa lockedstorageroom intheMessiahCollegemicrobiologylaboratory,whereitremainsasofthedateofthisreport.ItransportedtheZiplocsamplebagstoWindsorLaboratoriesforsecureretentionandanalysis.V. RESEARCHPROTOCOL(PROCEDURE)
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ThissectionprovidesadetaileddescriptionoftheproceduresIfollowedincarryingoutthemicroscopicanalysesoftheproductsamplesidentifiedabove.Agriculturalmicroscopyisanestablished,reliabletoolfordetermining ingredientspresent in agivenproduct,particularlywhere theoriginsof theproductand/or its ingredientsareunknown. Byseparating theconstituentsofagivensamplebydensityandcharacterizing the particles by shape, color, size, softness/hardness, texture, luster, odor and otherhistological andmorphological features using amicroscope, amicroscopist can reliably identify andquantifythoseconstituents inthesamplebycomparingthemtoknownstandards. Indeed,as Inotedabove,thistechniqueisroutinelyusedbytheFDAandothersinthefoodindustrytoidentifyingredientsinfoodproducts.ThemicroscopicanalysismethodologiesusedtoobtaintheresultssummarizedinthisReport are the same as those I have used for the past 28 years when performing similar analysesrelatingtononlitigationprojects.A. PreparationoftheSamplesforAnalysisIloggedineachsamplebagbycodenumberinmylabnotebookatWindsorLaboratories,assigningeachtoanexaminationboard.Ipreparedandinspectedeachproductsampleindividuallyinordertoensurethattherewasnoconfusionormistakeregardingthespecificsamplesbeingtested.WhenIcompletedthepreparation,analysis,andrecordingofresultsforeachuniquelyidentifiedsample,Ireturnedunusedmaterialstothecorrespondinguniquelyidentifiedsamplebagandthoroughlycleanedtheareaandalltoolsemployedbeforeproceedingtothenextsamplebag.In themajority of cases, the sampleswere comprised of kibble and dark bits. In all such cases, Ipersonally and manually separated the kibble and dark bit components, and then weighed eachcomponentusinganOhausE400Danalyticalbalance. Ithencalculatedandrecordedthepercentagesofkibbleanddarkbitsinmylabnotebook.Afterweighingeachcomponent (kibbleanddarkbits), Isubdivided them intocombinedquartersandoppositequartersforsamplepreparationandanalysis. Thiswasdonebyspreadingeachsampleontoparchmentpaper,dividing intoquadrants(upper left,upperright, lower leftand lowerright)andthensamplingthediagonallyoppositequarters.Quarteringinthiswayisanacceptedprocedureforensuringastatisticallyvalidsample.SeeMICROSCOPICANALYSISOFAGRICULTURALPRODUCTS(2010)at3.Thisaliquotwas then ground in a grain flourmill to crush the particleswithout causing any damage tocellular components, and 2 grams of the ground sample were transferred into a Coors porcelainevaporatingdish.Allequipmentwascleanedthoroughlybeforeeachuse.Theremainderof200gramsampleswerebagged,sealedandstoredatWindsorLaboratories.B. SampleSeparationbyFlotation:After transferring representative2gramsamples intocleanevaporatingdishes, Iadded6mlofa1:1carbontetrachloride:chloroformmixturetotheevaporatingdishandstirredthesample thoroughlytoallowmineral,boneandotherheavycomponentstosettle.Itransferredthematerialthatfloatedtothetop by pouring the CCL4:CHCL3, into another evaporating dish. The mineral/bone fraction, typicallyreferred to as the heavy fraction,was allowed to evaporate todryness,which took approximatelythirtyminutes.Ithenadded2mlofpetroleumethertotheCCL4:CHCL3mixturecontainingthefloatingmaterial. Thisaltersthedensityoftheliquid,whichcausesalessdensefractionofthesampletofloattothesurface.Thefloatingmaterialisthenpouredoffontoadryingmedium,leavingbehindamoredensefraction.Istirredthismixturethoroughly,transferredthefloatingmaterialtofiltermedium,andallowedittodry.
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Iaddedadditional2mlaliquotsofCCHL3untilnomaterial floated. Thisprocedure resulted in3or4densitydependentfractionsofingredientsinlightertoheavierorder.Allfractionswereallowedtodryfor at least thirty minutes. This is the accepted method of separating material by density formicroscopicexamination.SeeMICROSCOPICANALYSISOFAGRICULTURALPRODUCTS(2010)at57.IthenweighedeachfractionontheOhausE400Danalyticalbalancetothenearest0.01g,recordingtheresults inmy labnotebook. Onceafractionwasweighed, itwastransferredontoanew,clean,blackMasoniteexaminationboardproducedatWindsorLaboratories,onwhichtheparticleswerespreadtoensureasinglelayerofmaterialformicroscopicanalysis.C. MicroscopicExaminationoftheProductSamplesImicroscopicallyexaminedeachfraction,fromheaviestto lightest,using aNikonModel76210stereomicroscopeonabotanicalboomat1020X,which isthestandardrangeforanalysisofparticlesofthistype. SeeMICROSCOPICANALYSISOFAGRICULTURALPRODUCTS (2010) at23. Foreach fraction, Ilisted and recorded all identified components in my lab notebook and calculated and recorded theapproximatepercentageofeachcomponentusingstandardmethods.SeeMICROSCOPICANALYSISOFAGRICULTURALPRODUCTS (2010)at57. I identifiedeachcomponentbycomparing it toareferencelibraryofknown ingredientsandwithmyknowledgeofparticlecharacteristicsbasedonmyextensiveexperiencewith examination of similar particles. I estimated the proportion of each component byvisuallyestimating thepercentageofeach typeofparticleviewed through themicroscope. Thiswasrepeatedforeachfractionandthetotalsforeachcomponentpresentwerecalculated.In instanceswhere Iwas unable to identify a specific particlewhen doing this type of analysiswithcertainty, I transferred the relevantparticle toaNikonAlphaphotYScompoundmicroscope formoredetailed examination. These particleswere placed on a new, cleanmicroscope slide and a drop ofmountingmedium added. Themountingmediumused is a1:1:1 (v/w/v)mixtureofdistilledwater,chloralhydrateandglycerol,whichhelps todisplace trappedairandallow some ingredientsof finercellular structure to be more readily observable. See MICROSCOPIC ANALYSIS OF AGRICULTURALPRODUCTS (2010)at5. I thenobserved theparticleunder the compoundmicroscope (100400x) todetermine cellular structure for identification. Identification of components at thismagnification isbasedoncellularstructureratherthanoncharacteristicsoflargerparticles.The samples from the examination boardswere retained for a period of onemonth butwere thendiscardedbecausesamplesundergoanunacceptabledegreeofdecompositionbeyondthispoint.VI. RESULTSOFTHEMICROSCOPICANALYSISAspreviouslynoted,theidentitiesofthe28sampleswereblindedduringmyanalysis.OnceIcompletedmyanalysisandrecordedmyresultsinthelaboratorynotebook,thecodedlognumberscorrespondingto each Ziploc bag samplewerematched to the corresponding numbers placed on the commercialproductpackaging.Atthatpoint,Iaddedthecommercialnamesofsomeoftheexaminedpetfoodstotheentries in the labnotebook. Upuntil this time, Iwasunawareof thepurposeof the requestedanalysisofthesamplesandofanyhypothesesbeingtested.Ithencomparedthe ingredients identifiedbymymicroscopicanalysistothe labelsofeachdogorcatfood tested. The results ofmy testing and analysis reveal that in some instances, the Blue Buffaloproducts that I tested contained poultry byproductmeal, even though the packaging indicated the
PUR_000210
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contrary.ThiswasespeciallyevidentinthetwosamplesofBlueBuffaloLifeProtectionIndoorChicken& Brown Rice Formula. In both the original and duplicate samples, I found approximately 2224%poultrybyproductmealpresent inthekibble. Inboth instances Ifoundsmallfragmentsofeggshell,rawfeatherand legscale. Further, inseveralBlueBuffalosamples,Ifoundquantitiesofgrainpresentwherethecorrespondingproductswerelabeledasbeinggrainfree.Forillustrativepurposes,photosof representative poultry byproduct and grain particles are attached in Exhibit 2, a PhotographicAppendixtothisreport.ThetablebelowsummarizestheresultsfortheBlueBuffaloproductsamples.Discrepanciesbetweenthepackageclaimandmyresultsareboldedandhighlightedinyellow.
BlueBuffaloProduct
Component %PoultryByProductMeal(Two
Samples)%Riceand/orCorn(TwoSamples)
PackageClaim
WildernessAdultChickenRecipe
(Dog)Kibble 0%,0% 0%,0% NoPoultryBy
ProductMeal/NoGrainsDarkBits 9%,11% 2.2%,1.5%
WildernessAdultChickenRecipe(Cat)
Kibble 0%,0% 0%,1% NoPoultryByProductMeal/No
GrainsDarkBits 8%,5% 2.2%,2.5%LongevityAdult
DogsKibble 0%,0% N/A NoPoultryBy
ProductMealDarkBits 2%,1% N/ALongevityAdult
CatsKibble 0%,0% N/A NoPoultryBy
ProductMealDarkBits 3%,0% N/ALifeProtectionIndoorHealth
Chicken&BrownRiceRecipe
Kibble 22%,24% N/ANoPoultryByProductMealDarkBits 2%,2% N/A
LifeProtectionAdultChicken&BrownRice(Dog)
Kibble 22%,0% N/ANoPoultryByProductMealDarkBits 0%,0% N/A
FreedomAdultGrainfreeChicken
(Dog)Kibble 0%,0% 0%,0% NoPoultryBy
ProductMeal/NoGrainsDarkBits 2%, 2% 3%, 1%
FreedomGrainFreeChickenforIndoorCats
Kibble 0%,0% 0%,0% NoPoultryByProductMeal/No
GrainsDarkBits 2%, 1% 2%, 2% BasicsAdult
Turkey&Potato(Cat)
Kibble 0%,0% N/ANoPoultryByProductMealDarkBits 2%,2% N/A
BasicsAdultTurkey&Potato
(Dog)Kibble 0%,0% N/A
NoPoultryByProductMealDarkBits 0%,0% N/A
Thefullresultsofmyanalysesoftheproductsareprovidedonthefollowingpages.
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Windsor Laboratories 894 Hawthorn Avenue Mechanicsburg, PA 17055 Phone: (717) 796-0537 Fax: (717) 796-0537 Microscopic Evaluation of Agricultural Products Members of the American Oil Chemists Society (AOCS) April21,2014Sample:BlueBuffalo;WildernessAdultChickenRecipe(Dog);5961000270BIUBMAR0315L12109:20 EstimatedPercent:Kibble 96.0DarkBits 4.0Sample:0012014(Kibble) EstimatedPercent:Chicken/TurkeyMeal 36Chicken 26TotalFat 15TotalStarch 12VegetablePomace 8TotalChloridesasNaCl 0.5DehydratedAlfalfaMeal 0.2 pH=6.0Sample:0012014(DarkBits) EstimatedPercent:Flax(Linseed) 48TotalFat 16Starch 8PoultryByProductMeal 9DehydratedAlfalfaMeal 8PeaFiber 4RiceHulls 2VegetablePomace 2TotalChloridesasNaCl 0.6GroundYellowCorn 0.2 pH=5.8
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2.Sample:BlueBuffaloWildernessAdultChickenRecipe(Cat);5961000140BIUBFEB0415B310620 EstimatedPercent:Kibble 98.2DarkBits 1.8 Sample:0022014(Kibble) EstimatedPercent:Chicken/TurkeyMeal 36Chicken 26TotalFat 15TotalStarch 12VegetablePomace 8TotalChloridesasNaCl 0.5DehydratedAlfalfaMeal 0.2 pH=6.0Sample:0022014(DarkBits) EstimatedPercent:Flax(Linseed) 50TotalFat 16Starch 9PoultryByProductMeal 8DehydratedAlfalfaMeal 8PeaFiber 3RiceHulls 2VegetablePomace 2TotalChloridesasNaCl 0.6GroundYellowCorn 0.2 pH=5.8
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8
3.Sample:BlueBuffaloLongevityLongevityforAdultDogs;5961000802BIUBJAN0815L13110:45 EstimatedPercent:Kibble 92.4DarkBits 7.6Sample:0032014(Kibble) EstimatedPercent:Fish 28FishMeal 18GroundRice 16GroundBarley 15TotalFat 11Starch 10TotalChloridesasNaCl 0.5 pH=6.0 Sample:0032014(DarkBits) EstimatedPercent:Flax(Linseed) 62TotalFat 12Starch 8DehydratedAlfalfaMeal 8PeaFiber 5PoultryByProductMeal 2RiceHulls 1VegetablePomace 0.3TotalChloridesasNaCl 0.6GroundYellowCorn 0.2CalciumCarbonate Trace(
-
9
4.Sample:BlueBuffaloLongevityLongevityforAdultCats;5961000814BIUBJUN1314L13215:02 EstimatedPercent:Kibble 93.0DarkBits 7.0Sample:0042014(Kibble) EstimatedPercent:FishMeal 32Fish 19TotalFat 17GroundRice 16GroundOats 8GroundBarley 6TotalChloridesasNaCl 0.7 pH=6.0Sample:0042014(DarkBits) EstimatedPercent:Flax(Linseed) 50TotalFat 16DehydratedAlfalfaMeal 12Starch 10PeaFiber 4PoultryByProductMeal 3VegetablePomace 2RiceHulls 1TotalChloridesasNaCl 0.7GroundYellowCorn 0.2 pH=6.0
PUR_000215
Case: 4:14-cv-00859-RWS Doc. #: 104-1 Filed: 11/13/14 Page: 10 of 47 PageID #: 2403
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10
5.Sample:LifeProtectionIndoorHealthChicken&BrownRiceRecipe;5961000087FEB0915J220439 EstimatedPercent:Kibble 91.5DarkBits 8.5Sample:0052014(Kibble) EstimatedPercent:Chicken 28PoultryByProductMeal 22TotalFat 17GroundBarley 12GroundRice 8GroundOats 5FishMeal 3Flax(Linseed) 3TotalChloridesasNaCl 0.7Carrot 0.2 pH=6.0Sample:0052014(DarkBits) EstimatedPercent:Flax(Linseed) 54TotalFat 17Starch 10DehydratedAlfalfaMeal 8PeaFiber 5PoultryByProductMeal 2VegetablePomace 1RiceHulls 1TotalChloridesasNaCl 0.7GroundYellowCorn 0.2 pH=6.0
PUR_000216
Case: 4:14-cv-00859-RWS Doc. #: 104-1 Filed: 11/13/14 Page: 11 of 47 PageID #: 2404
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11
6.Sample:BlueBuffaloLifeProtectionAdultChicken&BrownRice(Dog);5961000011BIUBJAN1515T481:15 EstimatedPercent:Kibble 95.5DarkBits 4.5Sample:0062014(Kibble) EstimatedPercent:Chicken 20PoultryByProductMeal 22TotalFat 15GroundRice 15GroundBarley 10TotalStarch 8VegetablePomace 6DehydratedAlfalfaMeal 2TotalChloridesasNaCl 0.5Flax Trace(
-
12
7.Sample:BlueBuffaloFreedomAdultGrainFeeChicken(Dog);5961000680BIUBMAR1715VS06:20 EstimatedPercent:Kibble 93.8DarkBits 6.2Sample:0072014(Kibble) EstimatedPercent:ChickenMeal 32Chicken 21TotalFat 16TotalStarch 10Peas 8VegetablePomace 7DehydratedAlfalfaMeal 2Flax(Linseed) 2TotalChloridesasNaCl 0.7 pH=5.2Sample:0072014(DarkBits) EstimatedPercent:Flax(Linseed) 57TotalFat 16TotalStarch 9DehydratedAlfalfaMeal 8PeaFiber 5PoultryByProductMeal 2GroundYellowCorn 2RiceHulls 1TotalChloridesasNaCl 0.6 pH=5.4
PUR_000218
Case: 4:14-cv-00859-RWS Doc. #: 104-1 Filed: 11/13/14 Page: 13 of 47 PageID #: 2406
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13
8.Sample:BlueBuffaloFreedomGrainFeeChickenforIndoorCats;5961000707BIUBJAN1215P161433K14 EstimatedPercent:Kibble 95.7DarkBits 4.3Sample:0082014(Kibble) EstimatedPercent:Chicken 32ChickenMeal 28TotalFat 14TotalStarch 14PeaFiber 6Flax(Linseed) 2DehydratedAlfalfaMeal 1VegetablePomace 1TotalChloridesasNaCl 0.58 pH=5.7Sample:0082014(DarkBits) EstimatedPercent:Flax(Linseed) 53TotalFat 15DehydratedAlfalfaMeal 9PeaFiber 8TotalStarch 8PoultryByProductMeal 2RiceHulls 2VegetablePomace 1TotalChloridesasNaCl 0.6 pH=5.7
PUR_000219
Case: 4:14-cv-00859-RWS Doc. #: 104-1 Filed: 11/13/14 Page: 14 of 47 PageID #: 2407
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14
9.Sample:BlueBuffaloBasicsAdultTurkey&Potato(Cat);5961000727BIUBMAY0614P173733BO5 EstimatedPercent:Kibble 96.1DarkBits 3.9Sample:0092014(Kibble) EstimatedPercent:Chicken 35ChickenMeal 24TotalStarch 16TotalFat 12PeaFiber 6Flax(Linseed) 2VegetablePomace 2DehydratedAlfalfaMeal 1TotalChloridesasNaCl 0.60 pH=5.5Sample:0092014(DarkBits) EstimatedPercent:Flax(Linseed) 54TotalFat 16DehydratedAlfalfaMeal 10PeaFiber 7TotalStarch 7PoultryByProductMeal 2RiceHulls 1VegetablePomace 1TotalChloridesasNaCl 0.6 pH=5.7
PUR_000220
Case: 4:14-cv-00859-RWS Doc. #: 104-1 Filed: 11/13/14 Page: 15 of 47 PageID #: 2408
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15
10.Sample:BlueBuffaloBasicsAdultTurkey&Potato(Dog);5961000752BIUBMAR0515P104133MO5 EstimatedPercent:Kibble 96.1DarkBits 3.9Sample:0102014(Kibble) EstimatedPercent:Chicken 50ChickenMeal 22TotalStarch 12TotalFat 12DehydratedAlfalfaMeal 2VegetablePomace 0.2RiceHulls 0.2TotalChloridesasNaCl 0.60DicalciumPhosphate Trace(
-
16
11.Sample:PurinaONEbeyOndSalmon&WholeBrownRiceRecipe;1780012702328160010110L04 EstimatedPercent:DarkKibble 58.7LightKibble 41.3Sample:0112014(DarkKibble) EstimatedPercent:ChickenMeal 24Fish 22TotalFat 18GroundRice 15SoybeanMeal 8FishMeal 4GroundBarley 4GroundOats 2SoyProteinIsolate 0.5BeetPulp 0.5TotalChloridesasNaCl 0.60 pH=5.8Sample:0112014(LightKibble) EstimatedPercent:ChickenMeal 25Fish 23TotalFat 16GroundRice 16SoybeanMeal 7FishMeal 5GroundBarley 3GroundOats 2SoyProteinIsolate 0.5BeetPulp Trace(
-
17
12.Sample:PurinaONEbeyOndWhiteMeatChicken&WholeOatMealRecipe;1780014418331560012305L05 EstimatedPercent:DarkKibble 58.7LightKibble 41.3Sample:0122014(DarkKibble) EstimatedPercent:Chicken 27ChickenMeal 22TotalFat 17GroundRice 13SoybeanMeal 11GroundBarley 6GroundOats 2SoyProteinIsolate 0.5BeetPulp 0.5TotalChloridesasNaCl 0.6 pH=5.7Sample:0122014(LightKibble) EstimatedPercent:Chicken 26ChickenMeal 20TotalFat 17GroundRice 12SoybeanMeal 12GroundBarley 8GroundOats 2SoyProteinIsolate 0.2BeetPulp 0.3VegetablePomace 0.1TotalChloridesasNaCl 0.5CalciumCarbonate Trace(
-
18
13.Sample:PurinaProPlanSELECTAdultGrainFreeFormula(Dog);3810015196307110820548Ll5Kibble(0132014) EstimatedPercent:CanolaMeal 28Chicken 26TotalFat 18TotalStarch 18FishMeal 4PeaFiber 3NaCl 0.6BeetPulp 0.5 pH=5.7Sample:PurinaONEbeyOndWhiteMeatChicken&WholeBarleyRecipe(Dog);1780014936331810850201L04Kibble(0142014) EstimatedPercent:Chicken 36GroundRice 22TotalFat 18CanolaMeal 12GroundBarley 10NaCl 0.58CalciumCarbonate 0.1VegetablePomace Trace(
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19
14.Sample:BlueBuffaloFreedomGrainFeeChickenforIndoorCats;BIUBSEP0514J111635 EstimatedPercent:Kibble 94.9DarkBits 5.1Sample:0152014(Kibble) EstimatedPercent:Chicken 33ChickenMeal 28TotalFat 13TotalStarch 15PeaFiber 5Flax(Linseed) 2DehydratedAlfalfaMeal 1.5VegetablePomace 0.5TotalChloridesasNaCl 0.6 pH=5.8Sample:0152014(DarkBits) EstimatedPercent:Flax(Linseed) 52TotalFat 16TotalStarch 10DehydratedAlfalfaMeal 8PeaFiber 7RiceHulls 2VegetablePomace 2TotalChloridesasNaCl 0.71PoultryByProductMeal 1 pH=5.7
PUR_000225
Case: 4:14-cv-00859-RWS Doc. #: 104-1 Filed: 11/13/14 Page: 20 of 47 PageID #: 2413
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20
15.Sample:BlueBuffaloLongevityLongevityforAdultCats;BIUBNOV2914L13301:12 EstimatedPercent:Kibble 90.0DarkBits 10.0Sample:0162014(Kibble) EstimatedPercent:FishMeal 20Fish 20GroundRice 18TotalFat 16GroundOats 12GroundBarley 12TotalChloridesasNaCl 0.6 pH=6.1Sample:0162014(DarkBits) EstimatedPercent:Flax(Linseed) 54TotalFat 15DehydratedAlfalfaMeal 9Starch 8PeaFiber 4VegetablePomace 4RiceHulls 2GroundYellowCorn 1WheatMiddlings 1TotalChloridesasNaCl 0.5 pH=6.3
PUR_000226
Case: 4:14-cv-00859-RWS Doc. #: 104-1 Filed: 11/13/14 Page: 21 of 47 PageID #: 2414
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21
16.Sample:BlueBuffaloLifeProtectionAdultChicken&BrownRice(Dog);BIUBJAN1415T1C16:02 EstimatedPercent:Kibble 91.0DarkBits 9.0Sample:0172014(Kibble) EstimatedPercent:Chicken 22ChickenMeal 20TotalFat 14GroundRice 13GroundBarley 12TotalStarch 8VegetablePomace 8DehydratedAlfalfaMeal 1TotalChloridesasNaCl 0.51 pH=5.0Sample:0172014(DarkBits) EstimatedPercent:Flax(Linseed) 52TotalFat 16TotalStarch 10DehydratedAlfalfaMeal 8PeaFiber 6VegetablePomace 3GroundYellowCorn 2RiceHulls 2TotalChloridesasNaCl 0.6 pH=5.0
PUR_000227
Case: 4:14-cv-00859-RWS Doc. #: 104-1 Filed: 11/13/14 Page: 22 of 47 PageID #: 2415
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22
17.Sample:PurinaONEbeyOndSalmon&WholeBrownRiceRecipe;400710831313L05BIUBJUL2015 EstimatedPercent:DarkKibble 54.2LightKibble 45.8Sample:0182014(DarkKibble) EstimatedPercent:ChickenMeal 26Fish 21TotalFat 18GroundRice 14SoybeanMeal 7FishMeal 5GroundBarley 3GroundOats 3SoyProteinIsolate 0.5BeetPulp 0.5TotalChloridesasNaCl 0.58 pH=5.7Sample:0182014(LightKibble) EstimatedPercent:ChickenMeal 27Fish 22TotalFat 16GroundRice 15SoybeanMeal 8FishMeal 4GroundBarley 3GroundOats 3SoyProteinIsolate 0.2BeetPulp 0.1TotalChloridesasNaCl 0.62 pH=5.8
PUR_000228
Case: 4:14-cv-00859-RWS Doc. #: 104-1 Filed: 11/13/14 Page: 23 of 47 PageID #: 2416
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23
18.Sample:BlueBuffaloBasicsAdultTurkey&Potato(Cat);BIUBSEP08142321933 EstimatedPercent:Kibble 97.7DarkBits 2.3Sample:0192014(Kibble) EstimatedPercent:Chicken 35ChickenMeal 20TotalFat 16TotalStarch 15PeaFiber 7Flax(Linseed) 2DehydratedAlfalfaMeal 2VegetablePomace 1TotalChloridesasNaCl 0.50 pH=5.5Sample:0192014(DarkBits) EstimatedPercent:Flax(Linseed) 55TotalFat 15DehydratedAlfalfaMeal 11PeaFiber 6TotalStarch 6PoultryByProductMeal 2RiceHulls 2VegetablePomace 0.5TotalChloridesasNaCl 0.6 pH=5.7
PUR_000229
Case: 4:14-cv-00859-RWS Doc. #: 104-1 Filed: 11/13/14 Page: 24 of 47 PageID #: 2417
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24
19.Sample:BlueBuffaloWildernessAdultChickenRecipe(Cat);BIUBMAR0215B311446 EstimatedPercent:Kibble 96.1DarkBits 3.9 Sample:0202014(Kibble) EstimatedPercent:ChickenMeal 32Chicken 31TotalFat 18FishMeal 9TotalStarch 8RiceHulls 1DehydratedAlfalfaMeal 0.7TotalChloridesasNaCl 0.69BloodMeal 0.1 pH=5.7Sample:0202014(DarkBits) EstimatedPercent:Flax(Linseed) 58TotalFat 14Starch 8PoultryByProductMeal 5DehydratedAlfalfaMeal 7PeaFiber 4RiceHulls 1.5GroundYellowCorn 1TotalChloridesasNaCl 0.4CalciumCarbonate 0.1 pH=5.5
PUR_000230
Case: 4:14-cv-00859-RWS Doc. #: 104-1 Filed: 11/13/14 Page: 25 of 47 PageID #: 2418
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25
20.Sample:PurinaONEbeyOndWhiteMeatChicken&WholeBarleyRecipe(Dog);BIUBJAN2015319710830939L09Kibble(0212014): EstimatedPercent:Chicken 35GroundRice 24TotalFat 18CanolaMeal 11GroundBarley 10NaCl 0.61CalciumCarbonate 0.1VegetablePomace Trace(
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26
21.Sample:BlueBuffaloBasicsAdultTurkey&Potato(Dog);BIUBAPR0815P200534RO8 EstimatedPercent:Kibble 96.9DarkBits 3.1Sample:0222014(Kibble) EstimatedPercent:Chicken 48ChickenMeal 22TotalStarch 13TotalFat 12DehydratedAlfalfaMeal 3VegetablePomace 0.2TotalChloridesasNaCl 0.70DicalciumPhosphate Trace(
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27
22.Sample:BlueBuffaloFreedomAdultGrainFeeChicken(Dog);BIUBFEB0415P011733L06 EstimatedPercent:Kibble 95.8DarkBits 4.2Sample:0232014(Kibble) EstimatedPercent:ChickenMeal 32Chicken 25TotalFat 15TotalStarch 8VegetablePomace 8Peas 6DehydratedAlfalfaMeal 2Flax(Linseed) 2TotalChloridesasNaCl 0.7 pH=5.2Sample:0232014(DarkBits) EstimatedPercent:Flax(Linseed) 55TotalFat 16TotalStarch 10DehydratedAlfalfaMeal 9PeaFiber 3PoultryByProductMeal 2VegetablePomace 2GroundYellowCorn 1TotalChloridesasNaCl 0.61 pH=5.0
PUR_000233
Case: 4:14-cv-00859-RWS Doc. #: 104-1 Filed: 11/13/14 Page: 28 of 47 PageID #: 2421
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28
23.Sample:BlueBuffaloLongevityLongevityforAdultDogs;BIUBNOV2614L12301:52 EstimatedPercent:Kibble 84.0DarkBits 16.0Sample:0242014(Kibble) EstimatedPercent:Fish 25GroundRice 20GroundBarley 18FishMeal 15TotalFat 12TotalStarch 8TotalChloridesasNaCl 0.4Carrots Trace(
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29
24.Sample:PurinaONEbeyOndWhiteMeatChicken&WholeOatMealRecipe;BIUBJUL2015334710830419L05 EstimatedPercent:DarkKibble 51.1LightKibble 48.9Sample:0252014(DarkKibble) EstimatedPercent:Chicken 28ChickenMeal 18TotalFat 17GroundRice 15SoybeanMeal 12GroundBarley 7BeetPulp 0.2VegetablePomace 0.2SoyProteinIsolate 0.1CalciumCarbonate 0.1TotalChloridesasNaCl 0.6 pH=5.7Sample:0252014(LightKibble) EstimatedPercent:Chicken 28ChickenMeal 20TotalFat 16GroundRice 12SoybeanMeal 11GroundBarley 9GroundOats 1SoyProteinIsolate 0.3BeetPulp 0.3VegetablePomace 0.2TotalChloridesasNaCl 0.5CalciumCarbonate Trace(
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30
25.Sample:BlueBuffalo;WildernessAdultChickenRecipe(Dog);BIUBFEB2515L12304:25 EstimatedPercent:Kibble 92.0DarkBits 8.0Sample:0262014(Kibble) EstimatedPercent:ChickenMeal 35Chicken 28TotalFat 14TotalStarch 12VegetablePomace 7Flax(Linseed) 1.5DehydratedAlfalfaMal 0.3TotalChloridesasNaCl 0.54 pH=6.0Sample:0262014(DarkBits) EstimatedPercent:Flax(Linseed) 50TotalFat 15PoultryByProductMeal 11DehydratedAlfalfaMeal 8Starch 7PeaFiber 3VegetablePomace 2RiceHulls 1.5TotalChloridesasNaCl 0.55Dirt&Grit Trace(
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31
26.Sample:PurinaProPlanSELECTAdultGrainFreeFormula(Dog);BIUBSEP2014307110821052L15Kibble(0272014) EstimatedPercent:CanolaMeal 26Chicken 25TotalFat 18TotalStarch 18FishMeal 6PeaFiber 4NaCl 0.54BeetPulp 0.5 pH=5.8
PUR_000237
Case: 4:14-cv-00859-RWS Doc. #: 104-1 Filed: 11/13/14 Page: 32 of 47 PageID #: 2425
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32
27.Sample:LifeProtectionIndoorHealthChicken&BrownRiceRecipe;BIUBAPR2415B420041 EstimatedPercent:Kibble 80.3DarkBits 19.7Sample:0282014(Kibble) EstimatedPercent:Chicken 30PoultryByProductMeal 24TotalFat 16GroundBarley 12GroundRice 7GroundOats 6FishMeal 3TotalChloridesasNaCl 0.6Carrot 0.1 pH=6.0Sample:0282014(DarkBits) EstimatedPercent:Flax(Linseed) 52TotalFat 16Starch 12DehydratedAlfalfaMeal 8PeaFiber 6PoultryByProductMeal 2VegetablePomace 1RiceHulls 1TotalChloridesasNaCl 0.62GroundYellowCorn 0.1 pH=6.0
PUR_000238
Case: 4:14-cv-00859-RWS Doc. #: 104-1 Filed: 11/13/14 Page: 33 of 47 PageID #: 2426
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33
PUR_000239
Case: 4:14-cv-00859-RWS Doc. #: 104-1 Filed: 11/13/14 Page: 34 of 47 PageID #: 2427
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EXHIBIT1CURRICULUMVITAE
PUR_000240
Case: 4:14-cv-00859-RWS Doc. #: 104-1 Filed: 11/13/14 Page: 35 of 47 PageID #: 2428
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1
Messiah College-Department of Natural Sciences Grantham, PA 17027
(717) 766-2511
Curriculum Vitae JAMES V. MAKOWSKI Home Address: 894 Hawthorn Avenue
Mechanicsburg, PA 17055 Office Address:
Department of Natural Sciences Messiah College Grantham, PA 17027
Education:
1976 B.A. Messiah College (Biology) 1978-79 Trenton State University, NSF Fellowship 1980 M.A. West Chester State University (Biology) 1991 Ph.D. University of Delaware (Curriculum & Instruction/ Science
Education) Teaching Experience:
1975-76 Messiah College, Teaching Assistant 1976-81 Central Bucks School District, Senior High School Biology 1981-86 Messiah College, Instructor in Biology 1986-1992 Messiah College, Assistant Professor of Biology 1993-1999 Messiah College, Associate Professor of Biology 2000- Messiah College, Professor of Biology
PUR_000241
Case: 4:14-cv-00859-RWS Doc. #: 104-1 Filed: 11/13/14 Page: 36 of 47 PageID #: 2429
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2
While at Messiah College, I have taught the following courses in the Department of Biological Sciences:
BIO 150 Biology I (First semester Biology majors) BIO 102 Bioscience (Non-majors Biology) BIO 106 Life Science for Elementary Education (Biological principles for BIO 114 Heredity & Human Affairs (Ethics based genetics course for non- BIO 281 Genetics (Introductory genetics for majors) BIO 313 Developmental Biology (for majors) BIO 347 Comparative Anatomy (for majors) BIO 381 Microbiology (for biology majors) BIO 382 Microbiology for Health Professionals (for nursing & pre-med majors) NSC 496 Science Seminar (Capstone course for senior majors) IDS 101 First Year Seminar: Science & the Media IDS 101 First Year Seminar: Science in Science Fiction IDS 101 First Year Seminar: Science Fiction & Society IDST 300 Genetics & Society BIOL189 Genetics for Health Professionals BIOL160 Introduction to Cellular & Molecular Biology BIOL 260 Genetics & Development BIOL 317 Bioethics BIOL/CHEM 495 Capstone
I also am responsible for teaching BIO 407 & CHE 407 Secondary Subject Methods: Science for students majoring in biology and chemistry who wish to become secondary teaching certification. In addition, I supervise these students during their professional semester of student teaching.
Additional Professional Experience:
1986-87 Hershey Foods Corporation. Consultant in Food Microbiology, 1988 Polyclinic Medical Center, Faculty Intern to Medical Microbiology
Laboratory, 1988 1989 Quaker Oats Corporation, Faculty Intern in Quality Assurance
Lab, Shiremanstown, PA, 1989. Responsible for the development of several new procedures for quality assurance laboratory.
PUR_000242
Case: 4:14-cv-00859-RWS Doc. #: 104-1 Filed: 11/13/14 Page: 37 of 47 PageID #: 2430
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3
1987-present Owner, Windsor Laboratories a private consulting laboratory for forensic microscopy of animal feed and human food, as well unknown particles, etc.
Awards:
1991 Robert T Stegnar award in Science Education. Recognizes the graduate student who has made the most significant contributions to the advancement of science education. The University of Delaware, May, 1991.
Publications:
Makowski, J. (1979). Nucleosomes: Intracellular chromatin packaging units. Unpublished Research Article, West Chester University, 1979.
Makowski, J. (1980). Autecology of the White-Tailed Deer (Odocoileus
virginianus). Unpublished research article, West Chester University, 1980.
Makowski, J. (1983). Concepts of Biology Laboratory Manual, Messiah College,
1983.
Makowski, J. (1988). Problem-solving in genetics: A review. Unpublished
Makowski, J. (1991). High school teachers' conceptions of genetics and their
Makowski, J. (1992). The influence of curriculum content knowledge of genetics instruction. Journal of Research in Science Teaching, Vol 31, 2, February, 1994.
Makowski, J. (1992). A Microbiologist's View of Feed Microbiology.
Proceedings of the American Association of Feed Microscopists, Vol. 39, 1.
Makowski, J. (1996). The Use of Polarized Light Microscopy. Proceeding of
the American Association of Feed Microscopists, Vol. 43, 2
PUR_000243
Case: 4:14-cv-00859-RWS Doc. #: 104-1 Filed: 11/13/14 Page: 38 of 47 PageID #: 2431
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4
Makowski, J. (1998). Feed Microscopy: An Undervalued Quality Assurance Technique. Inform (9), 11, November, 1999.
Makowski, J. (2000). Electrophoretic Separation of Mammalian Hair Proteins as
a Means of Species Identification of Meat & Bone Meal Sources in Animal Feeds. Inform (11), April 2000.
Makowski, J. (2006). Microscopy Techniques for the Identification of Animal
Protein Products. Inform.(17), September 2006 Makowski, J., Ed., (2011). Microscopic Analysis of Agricultural Products, 4th
Ed., Champagne, IL, AOCS Press. Presentations:
"The Effects of Varied Instructional Strategies on Student Problem-Solving Behaviors." Paper presented at the Annual Meeting of the Eastern
"Inhibition of Salmonella sp. in Extruded Feeds." A Paper presented at the Annual Meeting of the American Association of Feed Microscopists,
"Hands-on Science Activities for Elementary School Students." Capital Area Intermediate Unit Regional In-Service day, October, 1991.
"Classroom-Tested Recommendations for Improving High School Genetics Instruction." Capital Area Intermediate Unit In-Service day, October,
"The Influence of Curriculum Content Knowledge on Genetics Instruction." A Paper presented at the Fourth Meeting of the International Consortium
"A Microbiologist's View of Feed Microscopy."