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Posted on by Rebecca E. Bazan

Finally! Animal Welfare Act Bird Regulations Part 2: What Do They Require?

After 20 years, the USDA has finally promulgated its Animal Welfare Act (“AWA”) regulations for birds.

The AWA covers the handling, care, treatment, and transportation of covered animals by dealers, research facilities, exhibitors, operators of auction sales, and carriers and intermediate handlers.

While birds not bred for use in research have been part of the AWA definition of “animal” and thus covered by the AWA since 2002, the USDA had not promulgated regulatory standards to cover birds until now.  After waiting twenty years for these regulations, people are naturally wondering, “Who do the regulations apply to?” and “What do they require?”

We previously posted about the “Who” (https://blogs.duanemorris.com/animallawdevelopments/2023/02/22/finally-animal-welfare-act-bird-regulations-part-1-who-is-covered/?lctg=99214282) This blog post will cover the second question—What Do The Regulations Require?

Part 2:  What do the AWA Bird Regulations Require?

The new bird regulations will be found in 9 C.F.R. Part 3, Subpart G, once they go into effect.  They fall into three general categories:

(1) Facilities and Operating Standards;

(2) Animal Health and Husbandry Standards; and

(3) Transportation Standards

Perhaps in recognition of the huge number of bird species with their vast arrays of health and husbandry needs, the regulations are in large part performance-based rather than prescriptive—meaning that they require enclosures/food/water/transport that are “adequate” or “sufficient” or “allow for normal postural and social adjustments,” rather than requiring certain dimensions or a certain amount of food/water at particular intervals.  For example, while it may make sense to require that most birds be transported in temperatures above freezing, that does not make sense as a requirement for some penguins.

Below we discuss some particularly notable standards, but encourage those covered by or interested in the regulations to review the Federal Register publication for the entirety of the text of the new regulations and USDA’s explanations of those regulations at: https://www.federalregister.gov/documents/2023/02/21/2023-03357/standards-for-birds-not-bred-for-use-in-research-under-the-animal-welfare-act

(1) Facilities and Operating Standards

These sections include standards for indoor and outdoor facilities, primary enclosures, and environmental enhancements to promote psychological well-being.  9 C.F.R. §§ 3.150-3.154.

Some notable items and USDA commentary include:

  • Housing facilities must be structurally sound for the bird species, be kept in good repair, and restrict other animals that may negatively impact the birds from entering. This can include, but does not require, overhead netting.  This “is meant to be a performance standard that allows persons to use generally accepted professional practices to restrict or prevent entry into the facility of harmful animals and to allow for incidental entry of benign animals.”  88 Fed. Reg. 10654, 10686.

 

  • Facilities must have reliable sources of water and power available for adequate heating, cooling, ventilation, and lighting if necessary, but “[i]f electric power is not necessary for compliance with other provisions and does not jeopardize animal welfare and proper husbandry, it is not a requirement.” 88 Fed. Reg. 10654, 10686.

 

  • Food and bedding must be stored off the floor and away from the walls to allow for cleaning underneath and around the supplies.  9 C.F.R. § 3.150(e).

 

  • Temperature and humidity must be species-appropriate to provide for their health and well-being.  But USDA “do[es] not expect an exact temperature and humidity figure to be determined and maintained for every species kept.”  88 Fed. Reg. 10654, 10689.

 

  • Outdoor facilities must provide adequate shelter to protect birds from adverse weather conditions. These can be natural shade and shelter rather than constructed shelter, but in any event, must be sufficient to protect all the birds at once.  88 Fed. Reg. 10654, 10689.

 

  • The space requirements for primary enclosures (9 C.F.R. § 3.153(b)) are performance-based standards (enclosures must allow each bird to make normal postural and social adjustments) rather than requiring certain dimensions, which makes the space regulation for birds different than the space regulations for other covered animals.

 

  • Primary enclosure requirements do not include a flight requirement and do not prohibit tethering (though tethering must be “in accordance with current professionally accepted standards.”). 9 C.F.R. § 3.153(b)(2).

 

  • Dealers, exhibitors, and research facilities must develop document, and follow a species-appropriate plan for environmental enhancement adequate to promote the psychological well-being of birds. The plan need not be created by the attending veterinarian (it can be created by a caretaker or other knowledgeable person), but must be approved by the attending veterinarian.  88 Fed. Reg. 10654, 10695.  “Examples of environmental enrichments include providing perches, swings, mirrors, and other increased cage complexities; providing objects to manipulate; varied food items; using foraging or task-oriented feeding methods; and providing interaction with the care giver or other familiar and knowledgeable person consistent with personnel safety precautions.”  9 C.F.R. § 3.154(b).

 

  • Attending veterinarians can exempt an individual bird from participation the environmental enhancement plan in consideration of its health or well-being.  Exemptions must be recorded and maintained for a year and must be made available to APHIS upon request.  9 C.F.R. § 3.154(e).

(2) Animal Health and Husbandry Standards

These sections include standards feeding, watering, water quality, cleaning/sanitizing/housekeeping/pest control, employees, and compatibility and separation.  9 C.F.R. §§ 3.155-3.160.

Some notable items include:

  • The diet for the birds must be appropriate for the species, size, age, and condition of the bird.  Birds must be fed at least once per day except as directed by the attending veterinarian, normal fasts, or other professionally accepted practices.  9 C.F.R. § 3.155(a).

 

  • Potable water must be provided in sufficient quantity to every birds housed at the facility, unless restricted by the attending veterinarian. 9 C.F.R. § 3.156.

 

  • Cleaning and sanitizing must be performed as necessary to prevent excessive accumulation of waste/excreta, etc., but cleaning and sanitizing may be modified or delayed during breeding, egg-sitting, or feeding of chicks for birds that are easily disrupted during such behaviors. A schedule of cleaning and sanitizing must be documented and include when the enclosure was last cleaned/sanitized, when breeding season began, and when cleaning/sanitizing is expected to resume, and be available for review by APHIS inspectors.  9 C.F.R. § 3.158.

 

  • Socially dependent birds must be housed in social groups except where the attending veterinarian exempts an individual bird. 9 C.F.R. § 3.160.

(3) Transportation Standards

These sections include standards consignments to carriers and intermediate handlers, primary enclosures used to transport live birds, primary conveyances, food and water requirements, care in transit, terminal facilities, handling, and climate and environmental conditions during transportation.  9 C.F.R. §§ 3.161-3.168.

These standards generally align with those of the International Air Transport Association (“IATA”).  88 Fed. Reg. 10654, 10702.  The transportation standards have more objective requirements than the other bird regulations, but generally also include appropriate exceptions or exemptions from those objective requirements.

Some notable items with specific requirements include:

  • Carriers and intermediate handlers cannot accept a live bird for transport in commerce more than 4 hours before the scheduled departure time (but this can be extended by up to 2 hours if the extension is not detrimental to the health and well-being of the bird). 9 C.F.R. § 3.161(a).

 

  • Birds must be offered food and water during the 4 hours prior to delivery to the carrier or intermediate handler. 9 C.F.R. § 3.161(c).  For weaned birds, there is an exception if the attending veterinarian approves a delay or a delay is in accordance with professional accepted standards.  9 C.F.R. § 3.164(a).

 

  • Carriers and intermediate handlers must attempt to notify the consignee at least once every 6 hours following the arrival of any live birds at the bird holding area of the terminal cargo facility. 9 C.F.R. § 3.161(f).

 

  • If delays will cause the shipment to arrive more than 12 hours later than scheduled, the carrier or intermediate handler must contact the consignor or consignee to determine the necessity or methods to supply fresh food, water, or moisture-providing foods. 9 C.F.R. § 3.161(f).

 

  • If the primary transportation enclosure is not permanently affixed to the conveyance, there must be ventilation openings on two vertical walls of the primary enclosure that are at least 16% of the surface area of each wall or ventilation openings located on all four walls that are at least 8% of the surface area of each wall. 9 C.F.R. § 3.162(b).

 

  • If the primary transportation enclosure is permanently affixed to the conveyance and the front opening is the only source of ventilation, the front ventilation opening must be at least 90% of the surface area of the front wall and be covered with bars, wire mesh, or smooth expanded metal. 9 C.F.R. § 3.162(b).

 

  • All weaned birds must be fed at least once every 24 hours except as directed by veterinary treatment, normal fasts, or other professionally accepted standards. 9 C.F.R. § 3.164(c).

 

  • For birds transported by ground or water, the birds must be visually observed at least every 4 hours. 9 C.F.R. § 3.165(a).

 

  • For birds transported by air, the birds must be visually observed at least every 4 hours if the animal cargo space is accessible during flight. If it is not, the carrier must visually observe the birds whenever they are loaded and unloaded and whenever the bird cargo space is other accessible.  9 C.F.R. § 3.165(b).

The USDA anticipates that many entities will have questions regarding these new standards, and encourages questions to be emailed to animalcare@usda.gov.  It also intends to develop guidance by publishing and responding to frequently asked questions, and plans to develop web-based and paper-based training resources for licensees to assist with implementing the new standards.

Posted on by Rebecca E. Bazan

Finally! Animal Welfare Act Bird Regulations Part 1: Who is Covered?

After 20 years, the USDA has finally promulgated its Animal Welfare Act (“AWA”) regulations for birds.

The AWA covers the handling, care, treatment, and transportation of covered animals by those engaged in certain activities.  While birds not bred for use in research have been part of the AWA definition of “animal” and thus covered by the AWA since 2002, the USDA had not promulgated regulatory standards to cover birds until now.  After waiting twenty years for these regulations, people are naturally wondering, “Who do the regulations apply to?” and “What do they require?”

This blog post will cover the first question—Who. We will publish a second blog post covering the “What” of the new standards shortly.

The USDA estimates that the new regulations will cover 5,975 to 7,913 newly regulated entities maintaining birds for covered uses.   Could you be one of them?

Part I:  Who the AWA Bird Regulations Apply (and Do Not Apply) To:

It is important to remember as a starting point that the AWA applies to:

(1) Dealers/breeders,

(2) Research facilities,

(4) Exhibitors

(5) Operators of auction sales, and

(6) Carriers/intermediate handlers

If you are not engaged in these activities with a covered animal, the AWA does not apply to you and you do not require a license.  For example, if you just own a covered animal as a pet (that you do not exhibit for money/sell, etc.), then these regulations do not apply to you.

Further, even if you are engaged in one of the above activities with birds, the new bird regulations do not apply to the following:

  • Birds bred in captivity and used for research, teaching, testing, or experimentation purposes
    • Excluded from regulatory definition of “animal” under 9 C.F.R. § 1.1[1] (which excludes birds bred for use in research)
    • New regulatory definition “bred for use in research” under 9 C.F.R. § 1.1 “means an animal that is bred in captivity and used for research, teaching, testing, or experimentation purposes”
  • Retail Pet Stores (brick and mortar, not online)
    • Exempted from licensing under 9 C.F.R. § 2.1(a)(3)(i)
  • Farm animals intended for use as food or fiber, including:
    • poultry (chickens, turkeys, swans, partridges, guinea fowl, pea fowl, ducks, geese, pigeons, doves, grouse, pheasants, quail)
    • ratites (ostrich, rhea, emu)
    • Excluded from regulatory definition of “animal” under 9 C.F.R. § 1.1
  • Falconry and exhibitions of birds that solely promote the art of falconry
    • Excluded from regulatory definition of “animal,” which includes only those used for research, testing, experimentation, exhibition, or as a pet under 9 C.F.R. § 1.1
  • Eggs
    • Excluded from the regulatory definition of “bird” under 9 C.F.R. § 1.1
  • State and county fairs, livestock shows, rodeos, field trials, other fairs or exhibitions intended to advance agricultural arts and sciences
    • Excluded from regulatory definition of “exhibitor” under 9 C.F.R. § 1.1
  • Racing pigeons
    • Excluded from definition of “exhibitor” under 9 C.F.R. § 1.1 because they are historically rooted in advancement of agricultural arts and sciences
  • Bird fancier shows
    • Excluded from definition of “exhibitor” under 9 C.F.R. § 1.1 because they are historically rooted in advancement of agricultural arts and sciences
  • There are also certain de minimis exceptions:
    • Those who sell 200 or fewer pet birds of 250 grams or less annually (e.g., cockatiels, budgies, finches, lovebirds, parakeets) and/or sell 8 or fewer pet birds of more than 250 grams annually (e.g., cockatoos, macaws, African gray parrots) and is not otherwise required to obtain an AWA license (9 C.F.R. § 2.1(a)(3)(iii))
    • Exhibitors of four or fewer raptors who hold valid permits from U.S. Fish and Wildlife Service and are not otherwise required to obtain an AWA license (9 C.F.R. § 2.1(a)(3)(viii))
  • Anyone transporting a migratory bird covered under the Migratory Bird Treaty Act from the wild to a facility for rehabilitation and eventual release in the wild, or between rehabilitation facilities, and has obtained authorization for the U.S. Fish and Wildlife Service for that purpose
      • Excluded from the regulatory definitions of “carrier” and “intermediate handler” under 9 C.F.R. § 1.1

The bird standards go into effect on March 23, 2023.  For current AWA licensees and registrants (those who have a license for other covered species), the standards are applicable on August 21, 2023.  For those who will need to apply for an AWA license, the standards are applicable on February 21, 2024.

Stay tuned for Part 2 in which we will cover the substance of the new bird regulations.

[1] The text of the revised regulations can be found in the Federal Register at 88 Fed. Reg. 10654, 10713-21 (available at https://www.federalregister.gov/documents/2023/02/21/2023-03357/standards-for-birds-not-bred-for-use-in-research-under-the-animal-welfare-act)

 

Posted on by Rebecca E. Bazan

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.

Posted on by Rebecca E. Bazan

“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.”

Posted on by Rebecca E. Bazan

First Import Permit Issued for Sport Hunted Threatened Lion Trophy

For the first time since the United States protected lions under the Endangered Species Act (“ESA”) in 2016, the Fish and Wildlife Service (“FWS”) has issued a permit to allow an American sport hunter to bring back parts of a lion he killed on a trophy hunt in Tanzania.

Before 2016, lions were not protected by the ESA, so sport hunters could bring lion trophies back to the United States without a permit. While the timing may have been coincidental, in January 2016, months after the 2015 high-profile incident in which a Minnesota dentist killed Cecil the lion during a trophy hunt, however, FWS extended ESA protection to lions. The sub-species of lions found in central and West Africa was listed as endangered and the sub-species found in southern and East Africa (including Tanzania) was listed as threatened. The threatened sub-species, Panthera leo melancochaita, has larger numbers and is considered less vulnerable than the endangered sub-species, Panthera leo leo.

When a species (or sub-species) is listed as “endangered” under the ESA, certain activities with regard to that species are prohibited without a permit from FWS. Those include import/export, “take” (which includes harm, hunting, shooting, killing, trapping, capturing, etc.), transport in interstate commerce, and sale or offer for sale in interstate commerce. 16 U.S.C. § 1538(a). While these prohibitions only expressly apply to species listed as “endangered,” as opposed to “threatened,” the ESA also provides that the Secretary of the Interior may by regulation extend some or all of those prohibitions to any species listed as threatened. That is what the Secretary of the Interior did with Panthera leo melancochaita – issuing a specific regulation, 50 C.F.R. § 17.40(r), which applies all of the “endangered” prohibitions to the “threatened” populations of lions, and requires a threatened species import permit for the import of all specimens, which includes sport trophies.

To obtain a threatened species import permit, the applicant must demonstrate that the permit is for a defined set of purposes: (1) scientific purpose; (2) the enhancement of propagation or survival of the species; (3) economic hardship; (4) zoological purposes; (5) educational purposes; or (6) incidental taking. 50 C.F.R. § 17.32. It might seem counter-intuitive, but FWS anticipates granting permits to allow the import of sport hunted lion trophies on the basis that sport hunting of the threatened species could “enhance the propagation or survival” of the species hunted. On a FWS webpage, (https://www.fws.gov/international/permits/by-activity/sport-hunted-trophies-lions.html), the agency advises trophy hunters: “In your permit application, we are looking for information demonstrating how your import will help improve the status of lions in the wild.” For example, the hunting license or trophy fees paid could be used by the safari outfitter, guide, land owner, etc., in a way that provides a conservation benefit to the species hunted (e.g., habitat improvement efforts, anti-poaching efforts, etc.).

Applications to import hunted lion trophies will now be reviewed on a case by case basis. FWS has a webpage devoted to advice regarding import of hunted lions that includes a list of factors the agency will consider when evaluating permit applications. It also includes a link to the IUCN Species Survival Commission document entitled “Guiding Principles on Trophy Hunting as a Tool for Creating Conservation Incentives.” That document sets out guidance about how trophy hunting can “creat[e] incentives for the conservation of species and their habitats” and, according to FWS, “provides useful principles, which, considered in conjunction with our permit issuance criteria, aid the Service when making findings and determinations regarding import of hunted animals.” (https://www.fws.gov/international/permits/by-activity/sport-hunted-trophies-lions.html). This suggests that sport hunters who wish to apply for a permit to import lion trophies should review the IUCN document and incorporate its guidance into the hunter’s application.

Posted on by Rebecca E. Bazan

100% Natural Case 100% Dismissed: You Can’t Have a False Advertising Case Without Advertising

A federal judge in the Northern District of California recently dismissed a false advertising case brought by two non-profit groups, finding that their own testimony sunk their claims.

The two plaintiffs, the Center for Food Safety and Friends of the Earth, sued Sanderson Farms Inc. (“Sanderson”), alleging that Sanderson’s advertisements of its chicken as “100 percent natural” was misleading in violation of California’s Unfair Competition Law (“UCL”) and False Advertising Law (“FAL”). The organizations alleged that reasonable consumers would interpret the statement “100 percent natural” to mean that the chicken was raised without any antibiotics ever, whereas Sanderson’s chicken products are raised with antibiotics, but such antibiotics have cleared prior to sale. In December 2018, the judge denied Sanderson’s motion to dismiss, finding that the organizations had adequately alleged violations of the UCL and FAL. The case then proceeded into discovery.

On July 31, 2019, however, the judge granted Sanderson’s new motion to dismiss, holding that the organizations lacked standing to bring the case. Friends of the Earth, et al. v. Sanderson Farms, Inc., No. 3:17-cv-03592-RS (N.D. Cal. July 31, 2019) (ECF 221). While the organizations alleged in their complaint that they had diverted resources to combat Sanderson’s allegedly misleading advertising, the evidence produced in discovery revealed that to be false. The judge found that the activities the organizations undertook were related to antibiotic use generally, and were not in reaction to Sanderson’s advertising. “Perhaps most damaging,” the judge found, were the organizations’ own depositions, in which they admitted “they did not divert resources because of Sanderson’s advertising” and stated that “they would have undertaken the same advocacy activities—including advocating against the use of antibiotics in animal agriculture and discouraging consumers from purchasing meat raised with routine antibiotics—even if Sanderson had never aired the challenged advertisements,” and that “they would have encouraged Sanderson’s customers to avoid Sanderson and other products that used routine antibiotics regardless of the existence of the advertising.” Id. at 5-6. In other words, the organizations’ real issue was with Sanderson’s practices, not its advertising. But, as the judge found, “This is a false advertising case, and Plaintiffs must establish that their alleged injury is traceable to the challenged ads at issue.” Id. at 6. Because the organizations fatally undercut their own claim that any “injury” they had was caused by Sanderson’s advertising, the judge dismissed their case.

This case is a good reminder of two points for companies who might find themselves on the defense side of a federal case brought by an advocacy group—

First, for a plaintiff to have a successful case, not only must they have a substantive claim (here, alleged violation of false advertising statutes), but they also must have a valid theory of standing. In federal court, to have standing a plaintiff must have an injury that is caused by the action of the defendant and redressable by a favorable ruling. See Lujan v. Defs. of Wildlife, 504 U.S. 555, 560-61 (1992). For cases involving individual plaintiffs, standing theories can often be straightforward (e.g., “I sustained a physical injury when the defendant ran the red light and hit me” or “I spent money on this product that was falsely advertised that I wouldn’t have spent if it was truthfully advertised”). When organizations decide to become plaintiffs, they often have to use other standing theories. Some common theories: informational injury standing (a statute requires that the organization be provided certain information that was withheld). See, e.g., Federal Election Commission v. Akins, 524 U.S. 11 (1998)); organizational injury standing (defendant’s conduct frustrates the organization’s mission and caused it to divert resources away from programmatic activities towards combatting the defendant’s conduct). See, e.g., La Asociacion de Trabajadores de Lake Forest v. City of Lake Forest, 624 F.3d 1083 (9th Cir. 2010)); and associational standing (at least one of the organization’s members has standing to sue in their own right; the interests at stake are germane to the organization’s purpose, and neither the claim asserted nor the relief requested requires the participation of individual members). See, e.g., Friends of the Earth v. Laidlaw Envtl. Servs., (TOC), Inc., 528 U.S. 167 (2000).

It is important for defendants to think not just about how to defend themselves on the substance/merits of the claims in a lawsuit, but also to think about whether the person/entity bringing the lawsuit actually has the right to do so. If the plaintiff does not have standing, the case should be dismissed regardless of the strength of the underlying claim. In the Sanderson case, the judge previously found that the plaintiff organizations had adequately alleged their substantive UCL and FAL claims, but ultimately dismissed the entire case because the organizations could not establish the organizational injury standing they pled—they could not show that they had diverted organizational resources as a result of the alleged false advertising.

Second, a defendant can raise a plaintiff’s lack of standing at any point in the case. Defendants often want to bring such a challenge in a motion to dismiss at the beginning of a case before expending resources on discovery. However, on a motion to dismiss, the judge is required to assume that the allegations in the complaint are true. For example, if an organizational plaintiff alleges that it diverted funds from one of its activities to combatting a defendant’s false advertising, the judge must assume that is true, making it difficult for a defendant to succeed in getting a well-pleaded case dismissed for lack of standing at the motion to dismiss stage. However, defendants should take heart that if forced to go into discovery on the merits, they should take the opportunity to get discovery on the plaintiff’s standing theory. The deposition testimony given by the plaintiffs in the Sanderson case is ultimately what led to their demise and the dismissal of the case. Defendants should remember that even if they fail at getting a case dismissed for lack of standing early in the case, that they should try, try again. The burden to prove standing is on the plaintiffs throughout a case, and the bar for what they must demonstrate gets raised at each stage. Adequately alleging standing is not the same thing as proving it. Sometimes, as in the Sanderson case, discovery can reveal that it is a plaintiff’s standing theory (not the defendant’s advertising) that is false.

Posted on by Rebecca E. Bazan

The Latest in PETA’s Crustacean Crusade

People for the Ethical Treatment of Animals (PETA) recently filed a complaint alleging animal cruelty at a Maine lobster processing plant. PETA claims that an undercover video recorded at the processing plant shows lobsters being dismembered while still alive, causing them unjustifiable pain and suffering. Maine’s animal cruelty statute prohibits killing an animal by a method that does not cause instantaneous death, and also prohibits injuring, torturing, or intentionally mutilating an animal. Me. Rev. Stat. Ann. tit. 17, § 1031(1)(B), (1)(D). PETA notes that other companies use alternative methods for killing lobsters instantly by using high water jets or electro-stunning devices.

PETA has tried and failed at this before. When PETA previously filed a complaint about alleged animal cruelty of lobsters by another Maine processing plant, the district attorney refused to prosecute, finding that Maine’s animal cruelty laws were not intended to cover invertebrate species like lobsters and crabs. Maine’s statute defines “animal” to include “every living, sentient creature not a human being.” Me. Rev. Stat. Ann. tit. 17, § 1011. This could explain why PETA now cites to research purporting to show that lobsters can feel pain—i.e., are sentient. If PETA can convince this prosecutor that lobsters are sentient and therefore covered by Maine’s animal cruelty act, perhaps its complaint could get past step one this time.

This is only the most recent chapter of PETA’s crustacean crusade. In addition to its previous lobster cruelty complaint, it also unsuccessfully sought to erect a roadside marker dedicated to lobsters who died when a truck crashed at that location, and purchased a billboard in Maryland trying to dissuade people from eating crabs. One seafood restaurant fought back by erecting its own pithy billboards and engaging in a social media campaign promoting consumption of crabs, as previously blogged about here.

Posted on by Rebecca E. Bazan

A Bipartisan Challenge to Animal Experimentation

An advocacy group called the White Coat Waste Project has filed a lawsuit in federal court arguing that the United States Department of Agriculture (“USDA”) has wrongfully withheld documents related to experiments conducted on cats at its Beltsville, Maryland Agricultural Research Center.  White Coat Waste Project v. United States Department of Agriculture, No. 1:18-cv-02070 (D.D.C.).  Using the federal Freedom of Information Act (“FOIA”), the White Coat Waste Project requested records related to the USDA’s “Toxoplasmosis in Cats” study, including veterinary records for all cats and kittens used in the experiment, as well as a complete project budget.  Having received no response to its FOIA request within the statutory time limit, the White Coat Waste Project filed the lawsuit seeking a declaration that the USDA’s failure to respond to its FOIA request was unlawful, ordering USDA to produce the requested records, and for its attorneys’ fees. Continue reading “A Bipartisan Challenge to Animal Experimentation”

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