President Trump Signs “Crush Video” Legislation

by John M. Simpson.

On November 25, President Trump signed the “Preventing Animal Cruelty and Torture Act” or “PACT Act” — H.R. 724 — which has become law as Public Law No. 116-72.  Unlike most recent examples of federal legislative gridlock, this measure went through both houses of Congress with very little, if any, opposition.  The bill cleared the House on a motion to suspend the rules and pass the bill and passed by voice vote.  In the Senate, the bill passed by unanimous consent.

As we previously reported, the new statute basically retains the pre-existing federal criminal prohibitions on creating or distributing so-called “crush videos” and adds a new provision that also makes the act of “animal crushing” a crime.  As the President remarked when signing the measure:

This commonsense legislation restricts the creation and distribution of videos or images of animal torture.  It is important that we combat these heinous acts of cruelty, which are totally unacceptable in a civilized society.

Most people would probably agree that crushing an animal and videotaping it are deplorable acts.  However, a question going forward is whether that is all this new law prohibits.

The statute prohibits “animal crushing” and defines it to include, not only crushing, but also conduct that results in “serious bodily injury” as defined, inter alia, in 18 U.S.C. § 1365.  Why this provision was included by reference is unclear, but section 1365, entitled “Tampering with consumer products,” defines “bodily injury” to mean just about anything that is harmful in some way, including a “cut,” an “abrasion,” a “bruise” or “any other injury to the body, no matter how temporary.”  Id. § 1365(h)(4).  A bodily injury is “serious” if it involves a “substantial risk of death,” “extreme physical pain,” “protracted or obvious disfigurement” or “protracted loss or impairment of the function of a bodily member, organ or mental faculty.”   Id. § 1365(h)(3).  So clearly, more than the mere intentional crushing of an animal is encompassed by the PACT Act prohibitions.

The PACT Act prohibitions are narrowed by the provisions that exclude certain activities.  Unintentional conduct is not covered.  The statute also expressly excludes a number of activities that appear to cover most, if not all, of the areas in which businesses dependent upon animals operate, including normal veterinary care, husbandry and animal management practices; animal slaughter for food; lawful hunting, trapping, fishing and sporting activity; predator and pest control; medical or scientific research; conduct necessary to protect life or property and euthanization.

The evident intent of the PACT Act was to prohibit crush videos and the conduct depicted therein, not to enact a broad federal animal cruelty statute that goes beyond those activities.  The exclusion of non-intentional conduct and the extensive list of explicitly excluded activities should lower concerns by most animal-related businesses that this new statute might embody another regulatory headache at the federal level.  However, as with much congressional handiwork, only time will tell.