Category Archives: General

No Meating of the Minds: Settlement Reaches An Impasse In Missouri Meat Advertising Lawsuit

By Michelle C. Pardo

We previously blogged about the case of Turtle Island Foods d/b/a Tofurky Company, et al. v. Richardson, 2:18-cv-04173-NKL, pending in the Western District of Missouri and the parties efforts to settle the lawsuit since late 2018.  The lawsuit, brought by the plant-based food producer and the advocacy group, The Good Food Institute (Executive Director, Bruce Friedrich, was the former leader of PETA’s vegan campaigns) and represented by the animal rights group Animal Legal Defense Fund (ALDF)and the ACLU of Missouri Foundation, filed a status report this month informing the court that “the parties do not believe that additional time will allow for resolution of the impasse.  The parties are grateful for the Court’s patience as they attempted to reach a final settlement agreement.”  The Joint Status Report also asks the court to resume the litigation that was originally filed in August of 2018, the day after the Missouri statute went into effect.

The case, which has received widespread media and industry attention, sought to challenge Missouri’s first-in-the-nation meat advertising law that prohibited companies from “misrepresenting a product as meat that is not derived from livestock or poultry.”  Mo. Rev. Stat. § 265.494(7).  The plaintiffs allege that the statute is unconstitutional and argue that it was not enacted to address consumer confusion, but rather to protect and favor the agriculture industry.  Plaintiffs claim that the law is overly broad and that no plant or cell-based producer can determine whether their food labeling would leave them exposed to criminal prosecution.  This is despite the fact that the Director’s Office of the Missouri Department of Agriculture (MDA) issued guidance to plant-based and cell-based producers on how to modify their labels to avoid referrals for criminal prosecution.  MDA indicated that it would not refer products with labels that contain, for example, prominent statements that the product is “plant based”, “veggie”, “lab grown” or a comparable qualifier.

Tofurky products include terms such as “burgers”, “chorizo style sausage”, “slow roasted chick’n” “hot dogs” and “ham roast”, some of which are coupled with qualifiers such as “veggie”, “plant-based” and “vegetarian”.

ALDF, an animal rights organization representing plaintiffs, has stated that the law “stifles innovation” from cell-based producers.  Cell-based or lab-grown meat has been touted as an industry game-changer in overhauling the way in which animal protein products are developed and provided to consumers, though none are commercially available yet.  Ironically, Washington, DC-based plaintiff, The Good Food Institute, has stated that the Missouri law is unnecessary because “misbranding is already prohibited by federal law.”  But animal and environmental activist groups have frequently litigated consumer fraud lawsuits against animal protein producers, despite the fact that the producers’ labels and advertising have complied with federal law, rejecting arguments that federal preemption invalidates their lawsuits.

The Missouri Cattlemen’s Association Executive Vice President Mike Deering has disagreed with the animal activist group and plaintiffs’ position:

The legislation does not stifle technology, but it ensures the integrity of our meat supply and reduces consumer confusion. . . The use of traditional nomenclature on alternative products is confusing to consumers and weakens the value of products derived from actual livestock production.”

Two months after the complaint was filed, the plaintiffs filed a preliminary injunction, alleging that they face irreparable harm absent preliminary injunctive relief. Tofurky’s harm, plaintiffs allege, is the conundrum the amended statute presents: risk criminal prosecution or change the way Tofurky does business by creating specialized marketing and packaging for the state of Missouri or refraining from selling products in Missouri entirely, both of which create additional cost and potential market disadvantages.

The parties had commenced settlement negotiations in late 2018 and had been providing the court with monthly status updates about their progress.  The court has not yet issued a scheduling or other order resuming deadlines in the case.

 

 

Significant U.S. Supreme Court FOIA Decision Likely To Complicate Activist Agendas

by John M. Simpson.

As many lawyers representing animal-related businesses regulated by U.S. federal government agencies can attest to, Freedom of Information Act (FOIA) litigation by animal activist interests has become what amounts to a cottage industry.  Animal activist groups are prolific in their FOIA requests to various federal animal-related agencies — such as the U.S. Department of Agriculture (USDA), which regulates animal exhibitors and researchers under the Animal Welfare Act (AWA) — for information on the persons and entities subject to USDA regulation.  This quest for business information typically unfolds as follows:  a business will mark its internal commercial and financial information “confidential” when submitting it to the agency in connection with an agency proceeding; the information is then requested through FOIA; the agency withholds it under FOIA Exemption 4; and then the fight becomes whether the release of the information will inflict “substantial competitive harm” on the submitter.  This all changed today with the U.S. Supreme Court’s decision in Food Marketing Institute v. Argus Leader Media, No. 18-481, Slip opinion (U.S. June 24, 2019).  Continue reading Significant U.S. Supreme Court FOIA Decision Likely To Complicate Activist Agendas

Maine’s Top Court Rules Harvesting Seaweed Is Not “Fishing”

by John M. Simpson.

Animal rights enthusiasts have a knack for pushing the envelope in their various arguments that legal rights should be recognized for a wide variety of animal species.  For example, it was reported recently that People for the Ethical Treatment of Animals (PETA) tweeted in connection with World Oceans Day that “Oysters and other bivalves are animals who deserve our consideration.”  Against this backdrop, a recent decision of the Supreme Judicial Court of Maine raised an interesting issue.  Ross v. Acadian Seaplants, Ltd., 206 A.3d 283 (Me. 2019), presented the question whether “rockweed,” a species of seaweed in Maine that grows in the intertidal zone, is owned by the adjoining upland property owner who owns the intertidal soil in fee simple or is held in trust by the state through the jus publicum for the public to harvest. Continue reading Maine’s Top Court Rules Harvesting Seaweed Is Not “Fishing”

Dog Bite Allegations Highlight Issues In DOT Rulemaking On Air Travel With Service Animals

by John M. Simpson.

An Alabama man recently filed a lawsuit in state court in Georgia against Delta Airlines, Inc., and another passenger, arising out of an alleged dog-biting incident that occurred on a Delta flight.  Jackson v. Delta Air Lines, Inc., et al., No. 19EV00278, Complaint (Fulton Cty., Ga. May 24, 2019). Continue reading Dog Bite Allegations Highlight Issues In DOT Rulemaking On Air Travel With Service Animals

HSUS Gets Mixed Result in D.C. FOIA Case

by John M. Simpson.

On June 3, 2019, the U.S. District Court for the District of Columbia granted in part and denied in part cross-motions for summary judgment in a Freedom of Information Act (FOIA) case that the Humane Society of the United States (HSUS) had brought against the U.S Department of Agriculture’s Animal and Plant Health Inspection Service, et al. (APHIS).  Humane Soc’y of the U.S. v. Animal and Plant Health Insp. Serv., et al., No. 1:18-cv-00646 (TNM) (D.D.C. June 3, 2019).  HSUS’s FOIA request was for site-inspection reports and other inspection records for specific animal dealers and exhibitors who are subject to regulation by APHIS under the Animal Welfare Act (AWA). Continue reading HSUS Gets Mixed Result in D.C. FOIA Case

Animals and Politics: Traveling Exotic Animal Ban Reintroduced

by Michelle C. Pardo

On May 21, 2019 Representatives Raul M. Grijalva (D-AZ) and David Schweikert (R-AZ) introduced the Traveling Exotic Animal and Public Safety Protection Act (TEAPSPA), a bill that would amend the federal Animal Welfare Act to prohibit the use of exotic and wild animals, including lions, tigers and elephants, in traveling performances.  The bill had previously been introduced in 2017. Continue reading Animals and Politics: Traveling Exotic Animal Ban Reintroduced

Is Vegan Leather Eco-Friendly?

by Michelle C. Pardo

While shopping for shoes or handbags, you may have seen an increasingly available species of product made from “vegan leather”.  As you can imagine, vegan leather, also known as synthetic leather, is not derived from animals, and it can be made from a variety of materials, including cork, waxed or glazed cotton, paper, polyvinyl chloride (PVC) and polyurethane. It has been touted as an ethical and environmentally conscious buying decision. However, assuming that these materials are making the most environmentally-friendly choice may be accurate. Continue reading Is Vegan Leather Eco-Friendly?

Ninth Circuit Rejects Enviro Challenge to Forest Service’s Motorized Big Game Retrieval Plan

By John M. Simpson.

On May 6, 2019, the U.S. Court of Appeals for the Ninth Circuit rejected environmental groups’ challenges  to travel management plans issued by the U.S. Forest Service (Service) pursuant to the Service’s Travel Management Rule in three Ranger Districts in the Kaibab National Forest:  the Williams, Tusayan and North Kaibab Ranger Districts.  WildEarth Guardians, et al. v. Provencio, No. 17-17373 (9th Cir. May 6, 2019).  The court of appeals concluded that the Service’s actions were not contrary to the Travel Management Rule and complied with the National Environmental Policy Act (NEPA) and the National Historic Preservation Act (NHPA).  Continue reading Ninth Circuit Rejects Enviro Challenge to Forest Service’s Motorized Big Game Retrieval Plan

California Cracks Down on Impulse Purchases of Easter Bunnies

by Michelle C. Pardo

Yes, it’s a thing.  Across the country, “impulse buys” of bunnies during Easter time result in thousands of rabbits being abandoned or brought to animal shelters when the novelty of the cuddly pet wears off.  In October of 2017, California banned the sale of commercially-bred dogs, cats and rabbits at pet stores.  Potential owners instead have to acquire these animals from animal shelters or rescue organizations or buy them directly from a breeder unless the pet store sells rescued animals.  Continue reading California Cracks Down on Impulse Purchases of Easter Bunnies

Study Shows Racism and Sexism Contribute to Animal Activist “Burnout”

by John M. Simpson.

A study was published recently in Social Movement Studies entitled “Nobody’s paying me to cry:  the causes of activist burnout in United States animal rights activists.”  The authors concluded that, while many factors play a role, racist and sexist treatment of individuals within animal rights groups also contributed to what the authors described as “burnout:”  “when people once deeply embedded in movements – people who intended to remain engaged – are forced to disengage due to the stress impacts of participation.” Continue reading Study Shows Racism and Sexism Contribute to Animal Activist “Burnout”