Veterinary Economics September 2012 Mailbox

Veterinary Economics September 2012 Mailbox

Dr. Jeff Werber's article "Extinguish negative reviews" in our June 2012 issue triggered some strong reactions from our readers. Here are a few letters we received, plus Dr. Werber's response and a legal point of view from Dr. Karl Salzsieder, JD.
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Sep 01, 2012
By dvm360.com staff

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Dr. Jeff Werber’s article “Extinguish negative reviews” (June 2012) was well done, but I was astonished at his lack of knowledge concerning prescription pet foods. The customer who wanted to purchase a prescription pet food from his hospital without establishing or having an existing doctor-client-patient relationship was 100 percent correct in her criticism of him and his hospital’s policy.

It may be his policy not to sell prescription pet foods to customers who aren’t his clients, but the law says otherwise and he should know that. These foods aren’t drugs and don’t require a doctor-client-patient relationship. There are no restrictions to sell such foods, except those made by the veterinarian or the manufacturer. The history of Hill’s Prescription Diets demonstrates a marketing approach rather than a pharmacological need.

There’s absolutely no legal prohibition to selling any prescription pet foods as over-the-counter products. Dr. Werber’s hospital policy may be rationalized in many economic ways, but it’s not by any legal requirements.

Name withheld

In Dr. Werber’s article, he recounts a negative review he received regarding his hospital’s reluctance to sell a non-client a case of prescription pet food because she needed a doctor-client-patient relationship. But when it comes to prescription pet foods, this isn’t required.

Manufacturers of prescription pet foods have chosen to sell their products only to veterinarians; that’s their marketing strategy. Also, companies such as Hill’s Pet Nutrition have chosen to include the word “prescription” in the names of some of its foods; that’s also a marketing strategy. But the FDA doesn’t control these foods, and a prescription isn’t required to purchase them. If a prescription was required, there would be a notice on the bag.

I agree that if there’s any confusion as to which prescription food a non-client’s pet is on, it’s good practice to call his or her regular hospital and confirm. However, many pet owners are aware that these pet foods don’t require a prescription or a doctor-client-patient relationship. When we tell pet owners that we must examine their pet first, they could leave with the perception that veterinarians are simply trying to extract more money from them.

Robert Cartin, DVM
Mission Animal & Bird Hospital
Oceanside, CA

To view author Dr. Jeff Werber's response, click the Next button below.

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Dr. Jeff Werber responds:
I appreciate the comments regarding the “legalities” of selling prescription pet foods to non-clients. My concerns, however, have more to do with patient care and practice standards. As we know, Hill’s Pet Nutrition is no longer the only player in the prescription pet food arena, yet possibly because of their success and market share, many of the new players have also adopted the format of using letters in the names of their food.

Whether it’s k/d or KO, pet food names become very confusing to some pet owners. Many of these foods have restrictions regarding the age and condition of the pet and the recommended length of time for feeding the product. Most have specific nutrient adjustments as well.

Personally, I don’t think it’s good medical practice to sell a restricted or prescription pet food to clients simply because they want it. With all the different, yet similar-sounding foods available, the possibility for confusion is too great. And I certainly wouldn’t want the responsibility or the blame for selling the wrong food or a food that may do more harm than good. If a problem were to ensue, you could be assured it would be the fault of the veterinary practice. I feel it’s good practice to either check with the pet’s veterinarian (which is free to the client and was my request in this case) or set up an office exam to get a thorough history and examine the pet (to make sure we are dispensing the correct and necessary diet).

Jeff Werber, DVM
Century Veterinary Group
Los Angeles, Calif.

Veterinary Economics sought the counsel of Editorial Advisory Board Member, Dr. Karl Salzsieder, DVM, JD, for his legal and veterinary knowledge on this subject. Click the Next button below to view his response.

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Dr. Karl Salzsieder, DVM, JD, responds:
As is usually the case, some topics related to medical issues and the law are not as simple as they seem on the surface. On the surface it would seem that if prescription pet foods aren’t deemed drugs, then the FDA doesn’t regulate them. Additionally, if they don’t have the label, “available only by or on the order of a licensed veterinarian,” then they don’t require a prescription or an established doctor-client-patient relationship.

But there are legitimate concerns for veterinarians selling pet foods labeled as prescription diets. Most of these foods supplement specific ingredients or have limited quantities of certain ingredients to aid in the prevention or delay of a particular disease process. So even if the food is not a prescription, it could affect a pet’s current condition or lead to a nutritional imbalance in a healthy patient. In other words, feeding these supplemented or restricted pet foods to a patient could cause a health condition that could trigger a malpractice lawsuit against the veterinarian. If the food doesn’t require a prescription, then by verifying the prior veterinarian’s recommendation (which could be obtained by phone if the prior veterinarian’s office was open and available for the call), the pet food sale could be made without as great a risk of liability.

However, in the malpractice example above, there may also be another possible risk to the veterinarian who sold the pet food. At any time, upon examination of the labeling, the FDA could rule that the food is a drug, if the claim on the packaging indicates that it treats a particular disease or symptoms of a particular disease. In that case, the FDA could also rule that the manufacturer get the food approved as a drug. This scenario has actually happened, as indicated in an FDA warning letter to a major prescription pet food manufacturer. Even though the food remained on the market for a while until changes were made to the claims on the label, the FDA warned that this food was a drug and should be treated as a truly prescription food.

Generally, prescription-labeled pet foods aren’t drugs and aren’t controlled by the FDA. But the doctor does have a contractual relationship with the manufacturer to sell them under the appropriate usage guidelines, or risk a lawsuit if the patient’s condition changes. The doctor also faces the risk that some of the prescription pet foods may be ruled a drug at any time, upon an FDA label review. Further, there are some ethical responsibilities for veterinarians to consider (even though we all know that ethics are not laws, but only evidence of the proper behavior of a veterinarian). Basically, a veterinarian should be able to set his or her practice’s operation standards or policies as they see fit—as long as they’re within the parameters of the law—to limit the practice’s risk for liability.

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