What its like to get information from FDA – Truth about Pet Food

Especially when they don’t want to give you the information. A real life example of FDA’s stall tactics.

One of the most important things that pet owners (and veterinarians) need to know – but don’t have access to – is the definitions of pet food ingredients. FDA has access to those definitions, in fact they co-author the definitions and utilize them in regulating pet food. In 2017 we filed a Freedom of Information Act request with FDA for those definitions. The Agency still hasn’t provided the information they are legally required to provide; here’s how they have stalled for twenty-eight months.

Background: Every pet food ingredient has its own very distinct legal definition. Those definitions of ingredients are very different than the same ingredient in human food. As example…

Human food can only contain USDA inspected and passed chicken. But the legal definition of pet food chicken allows USDA inspected and passed chicken, or chicken skin (little to no meat, or chicken bones (little to no meat), or condemned chicken (considered inedible), or a combination of any or all.

Without knowing the definition of chicken, pet owners don’t know to ask the pet food manufacturer if the pet food contains chicken skin or bones or condemned chicken. Most pet owners assume that chicken is chicken and don’t know to ask detailed questions of the pet food manufacturer.

And its not just chicken. The same variations occur in every single pet food ingredient definition. Without pet owners knowing what the pet food definition is for all pet food ingredients, they don’t know what to ask the manufacturer to learn what is actually in their pet’s food.

So…

In November of 2017, we asked FDA for all of the pet food ingredient definitions (through Freedom of Information Act request). We asked FDA for: “Records requested are definitions of all feed/pet food ingredients, which includes the common ingredient name, description, and any appropriate limitations for its use. These records are published in the AAFCO 2017 Official Publication under a Memorandum of Understanding agreement between FDA and AAFCO.” FDA acknowledged our request on December 1, 2017. Click Here to read.

And then we waited.

Nineteen months later – June 27, 2019 – the FDA finally responded to our FOIA request stating “We are denying your entire request. Specifically, we are denying a copyrighted document.” Click Here to read the FDA response.

AAFCO does claim the definitions are copyrighted. Published on the opening page of their 2019 Official Publication is the statement “Copyright 2019 by Association of American Feed Control Officials Inc. All Rights Reserved“. Regardless, the ingredient definitions are utilized by regulatory authorities as part of the regulation of pet food (utilized as legal definitions of ingredients) – they are law, thus the FDA is required to provide those documents through FOIA request. Justifiably, we contested the FDA denial.

On September 21, 2019 we filed an appeal with FDA stating grounds that the agreement between FDA and AAFCO does not specify the legal definitions are to be kept from the public, thus the FDA has full authority to provide the requested pet food ingredient definitions. Click Here to read our appeal.

The next day (September 22, 2019), we added an addendum to our appeal – providing further grounds to FDA the Agency could not deny our request for pet food ingredient definitions. We provided FDA with detailed evidence the legal definitions of pet food ingredients are a shared work product of FDA and AAFCO – FDA and AAFCO together write the legal definitions of pet food ingredients. “Being a shared work product, FDA is required to provide the requested information of the FOIA. FDA utilizes the shared work product to regulate pet food, thus it cannot be considered trade secret, confidential commercial information exempt from FOIA.” Click Here to read the addendum to our appeal.

After 3 months of more waiting, we emailed the FDA on December 19, 2019 asking about the status of our appeal. The FDA did not respond.

At 4 months after filing our appeal (January 27, 2019) we again emailed FDA asking about our appeal. The FDA did not respond to that email either.

On March 6, 2019, we called the FDA FOIA office asking about our appeal. This FDA representative was very helpful and provided a new contact person for us to connect with. This person – Michael Marquis – was the Director of Freedom of Information requests at FDA. He responded personally to us stating he would look into the situation. Click Here to read.

Mr. Marquis also provided us with a FOIA Appeal acknowledgement letter (which we never previously received). Click Here to read.

Mr. Marquis also responded later that same day (March 6, 2019) apologizing for the acknowledgement letter never being received and stated “I hope to get an updated status to you in the next couple of workdays.” Click Here to read.

Unfortunately, more than a “couple of workdays” passed with no response from Mr. Marquis. After 3 weeks of waiting we sent a follow up email to Mr. Marquis asking for an update to our appeal (March 30, 2020). The response we received was “Thank you for your email.  My last day with the U.S. Department of Health and Human Services is Friday, March 27, 2020.   I have accepted another position within the Federal government. If you need immediate assistance, please contact Brandon Gaylord, Supervisory Government Information Specialist, or Kim Hutchinson, Executive Officer and Deputy Agency Chief FOIA Officer on (202) 690-7453.“

Mr. Marquis left his job at FDA without providing us any information about our appeal.

With the knowledge that the person who promised to follow up was no longer at the FDA, we reached back out to a previous contact. Now we are being told by the Deputy Agency Chief FOIA Officer we will be provided a response “by no later than Wednesday” (April 1, 2020).

Twenty-eight months later…from the first date of filing the FOIA request in November 2017 to present…we are still waiting. Waiting twenty-eight months for information that we never should have had to ask for is absurd; legal definitions of pet food ingredients SHOULD be public information available for everyone to read.

Should we ever receive the FOIA requested pet food ingredient definitions, they will be provided to all pet owners.

Wishing you and your pet(s) the best,

Susan Thixton
Pet Food Safety Advocate
Author Buyer Beware, Co-Author Dinner PAWsible
TruthaboutPetFood.com
Association for Truth in Pet Food

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