Animal Testing on Cosmetics Banned in New York

On January 1, 2023, New York became the tenth state to ban the sale of cosmetics tested on animals.

The New York Cruelty Free Cosmetic Act (“NYCFCA”), which took effect on January 1, 2023, prohibits manufacturers from importing for profit, selling, or offering to sell any cosmetic or ingredient in the state for which the manufacturer knew or reasonably should have known that animal testing was performed by or on behalf of the manufacturer, or manufacturer’s supplier, if the animal testing was conducted after January 1, 2023.

To read the full text of this blog post by Duane Morris attorneys Ethan Feldman and Kelly Bonner, please visit the Duane Morris Fashion, Retail and Consumer Branded Products Blog.

APHIS Initiates Rulemaking on Handling of Wild and Exotic Animals

On January 6, 2023, the Animal and Plant Health Inspection Service (APHIS) of the U.S. Department of Agriculture issued an advanced notice of proposed rulemaking (ANPR) and request for comments as to potential amendments to Animal Welfare Act regulations  governing exhibitors.  The ANPR solicits public comments  on APHIS’ “plan to strengthen regulations regarding the handling of wild and exotic animals for exhibition, as well as the training of personnel involved in the handling of wild and exotic animals, and to establish standards addressing environmental enrichment for all regulated animals.”

Continue reading “APHIS Initiates Rulemaking on Handling of Wild and Exotic Animals”

Fifth Circuit Declares Horseracing Integrity and Safety Act Unconstitutional

In 2020, Congress passed, and President Trump signed, the Horseracing Integrity and Safety Act (HISA) which empowers a private entity — the Horseracing Integrity and Safety Authority (Authority) — to formulate regulations applicable to the horseracing industry.  On November 18, 2022, a panel of the U.S. Court of Appeals for the Fifth Circuit invalidated HISA as an  unconstitutional delegation of authority “vesting government power in a private entity not accountable to the people.”  Nat’l Horsemen’s Benevolent Ass’n v. Black, No. 22-10387, slip op. at 4 (5th Cir. Nov. 18, 2022). Continue reading “Fifth Circuit Declares Horseracing Integrity and Safety Act Unconstitutional”

Activist Greenwashing Case In D.C. Runs Aground

“Greenwashing,” a subject of frequent discussion, is defined by Merriam-Webster as “the act or practice of making a product, policy, activity, etc., appear to be more environmentally friendly or less environmentally damaging than it really is.”  Greenwashing claims have become popular with activists trying to attack businesses in the animal space who make consumer-facing statements about their operations by using terms such as “sustainable” or “humane.”  Read about a recent court decision in D.C. on greenwashing on the Duane Morris Fashion, Retail and Consumer Branded Products Blog.

Animal Rights Challenge to Cartoon Poultry Product Labels Fails

A federal court in Washington, D.C. recently tossed a lawsuit brought by the animal rights group, Animal Legal Defense Fund (ALDF) challenging poultry products labels that had been approved by the Food Safety and Inspection Service (FSIS) of the U.S. Department of Agriculture.   The court determined that ALDF had no standing to sue.  ALDF v. Vilsack, No. 1-21-cv-01539 (CJN) (D.D.C. Nov. 14, 2022). Continue reading “Animal Rights Challenge to Cartoon Poultry Product Labels Fails”

Animal Rights Activist Gets Rammed by NFL Player

By Michelle C. Pardo

The video of NFL linebacker Bobby Wagner tackling an animal rights activist who had charged the field with a smoke bomb at last week’s Los Angeles Rams – San Francisco 49ers game in Santa Clara was the subject of much (and some amusing) color commentary.  But Direct Action Everywhere (DxE), the radical animal rights group behind the dangerous stunt, raises significant issues regarding player, referee, security staff and spectator safety.

The DxE activist was protesting and trying to bring attention to criminal charges against two of his fellow activists who are facing trial for the “open rescues” – the act of illegally entering and stealing animals from farms to “save” them and prevent them from entering the food supply.  Wayne Hsiung, the founder of DxE (who stepped down from his leadership position due to his multiple criminal cases (see our blog post, here) is currently on trial in Utah for a 2017 raid of a pork production facility.  Hsiung was previously convicted in North Carolina for another “open rescue” but received no jail time, a sentence he actually had wanted according to his social media postings.  (Read our blog post about it, here).  Hsiung and DxE member Paul Picklesimer are currently on trial in St. George, Utah, on felony burglary and theft charges for “Operation Deathstar” — their infiltration of a Smithfield owned pig farm in Utah.  If convicted, they could face more than 10 years in prison.  Other DxE protestors accepted pleas deals, but the two remaining defendants sought to go to trial to raise awareness of their cause.

Wagner noticed that security was having trouble intercepting the protestor and stepped in to stop him, with linebacker Takkarist McKinley giving him an assist.  According to DxE’s press release, the protestors were cited and released from custody that night.  A similar protest occurred at the season-opener Bills-Rams game, which, according to DxE, resulted in a head injury to one of its protestors.  DxE also took responsibility for a protest at a Minnesota Timberwolves game back in April.

It has been reported that the protestor subsequently filed an assault complaint (with the Santa Clara police) against the Rams players, describing their conduct as “blatant assault.”  But was the conduct justified under a theory of self-defense or defense of others?  While an unruly fan charging the field may have done so “merely” for publicity, an unauthorized person, running onto the field and near other players and personnel, while waiving an unidentified smoking device, and resisted attempts to stop him, could reasonably be interpreted as someone who could do harm.  As Wagner later told media, you “never know” the intruder’s intentions or whether they are carrying or concealing a weapon.  In California, self-defense (or defense of others) is a valid defense to assault where the individual reasonably believes that he or someone else was in imminent danger of suffering bodily injury.  In acting in self-defense, however, one may only use the amount of force that is reasonably necessary to defend oneself or others.

While some may view Wagner’s action as excessive force, as the video shows, prior to the tackle, others had tried to stop the protestor and failed.

Apart from self-defense, under a theory of assumption of the risk – if you run onto a football field during a game, it is reasonably foreseeable that you could be tackled and suffer injury (particularly if you choose to storm the field in a t-shirt without pads or a helmet).

For DxE members, the threat of injury or prison goes with the activist territory.  In a recent Harper’s Magazine story about DxE’s press coordinator, Matt Johnson said that it made “practical sense” to go to prison for a piglet – presumably more practical than his 2018 idea to set himself on fire in order to gain attention for climate change.  But for the NFL – or  other sport teams or high profile entertainers that pack venues across the country – these publicity stunts can create real threats to the safety of players, security guides and even participants.  This time, it may have been just a smoke bomb, but a copycat seeking to “one up” this stunt could use something far more destructive to bring attention to a cause.

In California, employers may seek a Workplace Violence Restraining Order (WVRO) on behalf of an employee, which prohibits unlawful violence or credible threats of violence against an employee.  Cal. Civil Proc. §527.8. An employer must prove that the employee has suffered unlawful violence (like assault or battery) or a credible threat of violence.  WVROs can order the restrained person to stay away from the employee’s workplace or not go near the employee.

An exception exists where the accused person is engaging in constitutionally protected activity, which can be a significant barrier to obtaining a WVRO against a protestor.  But for those protestors that repeatedly target a business or organization or its employees, and their conduct advances from peaceful protest to threatening or engaging in bodily harm, the constitutional protections will not insulate their actions.  The California WVRO procedure has been used to stop individual animal activists whose protests resulted in conduct that threatened a business’s employees.

Unfortunately, the threat of legal action against its members may not concern DxE, which reportedly saw the “biggest spike” to its website following the NFL stunt.  Unfortunately, until sidelined with legal action or an actual criminal conviction with prison time, DxE protestors may continue to threaten the safety of players and other employees in pursuit of their goal: to “achieve revolutionary social and political change for animals in one generation.”

VEGGIE Doesn’t Mean “Made of Vegetables,” California Judge Rules

In a somewhat surprising ruling, a judge in the Northern District of California last week dismissed with prejudice a false advertising case about certain MorningStar Farms products such as VEGGIE BURGERS, VEGGIE DOGS, AND VEGGIE CHIK’N.  Kennard v. Kellogg Sales Co., No. 21-cv-07211 (N.D. Cal. Sept. 14, 2022), Dkt. No. 46.

The plaintiff alleged that naming the products “VEGGIE” leads reasonable consumers to believe that the products are made primarily of vegetables.  Id. at 2.  Because the products are actually composed primarily of non-vegetable ingredients like wheat gluten, oil, and corn syrup solids, the plaintiff alleged that the packaging is false or misleading in violation of, among other things, California’s False Advertising Law (“FAL”), Unfair Competition Law (“UCL”), and Consumer Legal Remedies Act (“CLRA”).  Id. at 1-2.  The FAL, UCL, and CLRA are very common vehicles utilized by California plaintiffs to bring lawsuits over statements they believe are false or misleading (a defendant can be liable even if its statements are technically true if they are misleading).

The defendant argued that the VEGGIE labels were not misleading because reasonable consumers understand the term VEGGIE to refer to vegetarian or meat substitute foods, not a reference to being made primarily of vegetables.  Id. at 2, 5.

The Court previously dismissed the complaint once, agreeing with the defendant that reasonable consumers would not understand VEGGIE to mean made primarily from vegetables.  He gave the plaintiff another chance to re-plead her case, however, to add facts showing why a significant portion of the public acting reasonably could be misled into thinking that the products were made from vegetables as opposed to grains, legumes, and oil.  Id. at 2-3.

In the Amended Complaint, the plaintiff bolstered her allegations about consumer understanding with a survey that the she said demonstrated that consumers are misled by VEGGIE labeling, thinking that the products are made primarily from vegetables rather than non-vegetable plant-based ingredients.  Id. at 3.  The Court was not swayed, finding that the claims in the Amended Complaint were “implausible and do not support a reasonable inference that some significant portion of consumers would be misled into thinking the VEGGIE products are made primarily from vegetables as opposed to being vegetarian meat substitutes made from grains, oils, legumes, or other ingredients,” and dismissed the complaint again, this time with prejudice.  Id. at 6, 14-15.

What makes this decision surprising is that the Court ruled definitively for the defendant at the motion to dismiss stage.  At that stage, which usually happens early in a case before the actual facts are known, the Court is required to assume the truth of all well-pleaded factual allegations.  How reasonable consumers interpret a label usually is a factual issue, not a legal one.  Here, however, the plaintiff commissioned a survey prior to amending her complaint and even incorporated the survey findings into her complaint (which the Court had to accept as true when ruling on the motion to dismiss).  One might have thought this would make the case particularly difficult to dispose of on a motion to dismiss.

So how did it happen?  First, the Court said the label “VEGGIE” was not misleading because consumers could look for context clues.  Even if the term VEGGIE was ambiguous, said the Court, consumers could look at the ingredient list on the packaging and therefore would not be misled.  Id. at 6-7, 10.  Second, the Court found that the plaintiff’s survey did not ask the right question.  Id. at 10.  The survey asked what plant-based ingredients consumers believed were primarily in the product, when it should have asked whether the term VEGGIE, taking into account the product packaging, “conveyed that the Veggie Products were meat-alternative or … were made with vegetables as opposed to other ingredients.”  Id. at 10.  The Court bolstered that opinion by citing to other cases where courts had determined that surveys cannot save “otherwise facially implausible consumer deception claims.”  Id. at 9.

What can we take from this decision?  First, both the defendant and the Court noted that it is rare for courts to decide as a matter of law that a reasonable consumer would not be deceived by a defendant’s packaging or marketing.  Id. at 2, 5.  Second, while it may be rare, it is not unprecedented.  This decision made sure to cite as support for its position other cases holding that advertising was not misleading as a matter of law, many of which are very recent.  Cases like these might be indicators that California federal courts are pushing back a bit against the wave of non-meritorious false/misleading advertising cases brought by plaintiffs under the UCL/CLRA/FAL.  Look for these cases to be cited by future defendants when moving to dismiss false advertising-type cases.

Oregon Court of Appeals Rules Animals Are Not Entitled to Legal Personhood

by Michelle C. Pardo

We   previously blogged about the Oregon negligence lawsuit that animal activist group Animal Legal Defense Fund (ALDF) brought on behalf of “Justice” — an American Quarter Horse — and his self-described “guardian” against the horse’s former owner.  Back in 2017, Justice (formerly named “Shadow” and renamed ostensibly for this lawsuit) was removed from his prior owner’s care for neglect and relocated to a new caretaker.  Months later, Justice’s former owner pleaded guilty to first degree animal neglect and was ordered to pay for the cost of Justice’s care prior to July, 2017. Continue reading “Oregon Court of Appeals Rules Animals Are Not Entitled to Legal Personhood”

“Habitat” Flip Flop – Fish and Wildlife and National Marine Fisheries Services Rescind Trump Administration Definition of “Habitat”

Shortly after the new regulatory definition of “habitat” went into effect, the agencies that promulgated it (the Fish and Wildlife Service (FWS) and National Marine Fisheries Service (NMFS)) have rescinded it.

The Endangered Species Act (ESA) has been described as “the most comprehensive legislation for the preservation of endangered species ever enacted by any nation.”  Tennessee Valley Authority v. Hill, 437 U.S. 153, 180 (1978).  One of the ways it purports to do so is through the designation and protection of “critical habitat.”  The Secretaries of the Interior (FWS) and Commerce (NMFS) designate “critical habitat” for threatened and endangered species.  16 U.S.C. § 1533(a)(3)(A)(i).  Once “critical habitat” is designated, the ESA requires federal agencies to ensure that none of their activities (such as granting permits) will “result in the destruction or adverse modification” of the “critical habitat.”  16 U.S.C. § 1536(a)(2).

The term “critical habitat” is defined by the ESA itself, 16 U.S.C. § 1532(5)(A), but the broader term “habitat,” is not.  This may seem insignificant, but the difference between “critical habitat” and “habitat” became—one might say, critical—in the Supreme Court’s 2018 opinion Weyerhaeuser Co. v. U.S. FWS, 139 S. Ct. 361 (2018).  There, the Supreme Court held that an area cannot be designated a “critical habitat” unless it is also a “habitat,” which does not have a statutory definition.  Id. at 368-369.  The Supreme Court commented that “the statutory definition of ‘critical habitat’ tells us what makes habitat ‘critical,’ not what makes it ‘habitat.’”  Id. at 368.  The case, however, did not address what is or should qualify as “habitat.”

In response to this decision, FWS and NMFS promulgated the following regulatory definition of “habitat”: “For the purposes of designating critical habitat only, habitat is the abiotic and biotic setting that currently or periodically contains the resources and conditions necessary to support one or more life processes of a species.”  50 C.F.R. § 424.02.  The “habitat definition rule” was published on December 16, 2020 became effective on January 15, 2021.

Then came a change in administration and an about-face on the “habitat definition rule.”  On January 20, 2021 President Biden issued an Executive Order that required agencies to review federal regulations and actions taken between January 20, 2017 and January 20, 2021 (i.e., during the Trump administration) to determine their consistency with the Biden administration’s policy considerations.

Following that review, the agencies (FWS and NMFS) decided to rescind their own “habitat definition rule.”  87 FR 37757.  They noted that the regulatory definition was unclear, confusing, and inconsistent with the conservation purposes of the ESA.  Id.  The agencies’ main criticism of their own previous rule is that it prevented the designation of areas that did not currently meet a species’ needs, even if the area could in the future do so due to natural processes or reasonable restoration.  Id. at 37758.  Rather than replace it with a different definition of “habitat,” however, the agencies determined that there should not be a single regulatory definition and that the determination should be made on a case by case basis.  Id. at 37759.

The agencies gave a somewhat dissatisfying acknowledgement to the Weyerhaeuser case that set off this regulatory whiplash:  “[W]e recognize the importance of the Supreme Court’s ruling in Weyerhaeuser and intend to designate as critical habitat only areas that are habitat for the given listed species.”  Id.  In other words, while the agencies now claim that it is impossible for them to define “habitat,” they apparently know it when they see it.

Seem clear as mud?  We would not be surprised if there is future litigation regarding what constitutes “habitat,” now that the Supreme Court has made it clear that falling within the statutory definition of “critical habitat” is not sufficient and there is not currently a case law, statutory, or regulatory definition of “habitat.”

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The opinions expressed on this blog are those of the author and are not to be construed as legal advice.

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