General – Page 2 – Animal Law Developments

June 21, 2023June 23, 2023 by Michelle Pardo

Breaking Down the FWS’s Interim Rule Implementing the Big Cat Public Safety Act

by Michelle C. Pardo

On June 12, 2023, the U.S. Fish and Wildlife Service (FWS) published an Interim Rule that amends the implementing regulations for the Captive Wildlife Safety Act (CWSA) by “incorporating the requirements” of the Big Cat Public Safety Act (BCPSA). See 88 Fed. Reg. 38358 (6/12/2023). https://www.federalregister.gov/documents/2023/06/12/2023-12636/regulations-to-implement-the-big-cat-public-safety-act. The amended regulations — which are now in effect as of June 12, 2023 — can be found within the Federal Register publication and at 50 CFR Part 14. Continue reading “Breaking Down the FWS’s Interim Rule Implementing the Big Cat Public Safety Act”

March 14, 2023 by Michelle Pardo

Monterey Bay Aquarium in Hot Water Over Alleged Defamatory Statements About Maine Lobster Industry

by Michelle C. Pardo

Maine is synonymous with lobster. So states the federal court defamation lawsuit filed this week by a coalition of lobster fishing companies and trade groups against the Monterey Bay Aquarium over its “Seafood Watch” program, which accused Maine fisheries of falsely putting North Atlantic right whales at significant risk of entanglement and risk of extinction. Bean Maine Lobster, Inc., et al. v. Monterey Bay Aquarium Foundation, No. 2:23-cv-00129 (JAW)(D. Maine). Continue reading “Monterey Bay Aquarium in Hot Water Over Alleged Defamatory Statements About Maine Lobster Industry”

March 9, 2023March 10, 2023 by Michelle Pardo

USDA Extends Comment Deadline on Standards for Handling Wild and Exotic Animals

by Michelle C. Pardo

The United States Department of Agriculture (USDA) has extended the deadline for submitting comments to an advance notice of proposed rulemaking (ANPR) on standards for handling captive wild and exotic and animals and changes to environmental enrichment requirements for all regulated species.

Stakeholders will now have until April 10, 2023 to submit comments.

The ANPR is available to view and comment at https://www.regulations.gov/document/APHIS-2022-0022-0001.

USDA’s Animal and Plant Health Inspection Service (APHIS) has requested comments in three particular areas:

Public handling of wild and exotic animals at licensed exhibitor facilities;
Training of personnel who handle wild and exotic animals at licensed facilities; and
Changes to regulated animals’ environments to promote their psychological well-being.

Participating in the comment process is essential for regulated stakeholders, as agencies must consider all “relevant matters presented” and respond in some form to comments received in formulating their rules. If opposition is exceptionally voluminous or strident, an agency may decide to publish a new notice and/or establish a new comment period.

All perspectives are helpful, but keep in mind the following:

DO attempt to respond to the questions asked by the agency. Additional material may be appropriate to include, but try to at least provide the agency with guidance on the requested topics.

DO highlight the financial ramifications to your facility with any significant additions or changes to the regulations. For example, would increased regulations demanding a certain type of training program or experience erect an impractical barrier to staffing? Are certain formal training programs less effective than apprenticeships or on-the-job training? Would such regulations practically require “form” over “substance”?

DO provide comments on whether more particularized regulations on animal enrichment would unnecessarily limit an exhibitor’s ability to provide effective enrichment to their animal populations. Would regulations diminish the ability to be innovative about the nature and type of enrichment? Would they lag behind science and research and therefore create worse, and not better, animal welfare circumstances?

DO describe in detail any unintended, negative effects that further regulation can produce, either to the well-being of particular species or a licensed facility’s ability to practically care for its animals.

DO include “myth-busting” in your comments that call out speculative and philosophical-driven theories of animal welfare and pseudo-science that are not backed by science and research. Include peer-reviewed research or other resources that supports your comments or successful anecdotal cases that are relevant to the issues.

Most importantly, do not assume that another exhibitor will represent your particular interests. Participate and influence regulations that affect your businesses and organizations.

February 24, 2023 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.

February 22, 2023 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)

January 6, 2023January 6, 2023 by Duane Morris

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.

October 6, 2022 by Michelle Pardo

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.”

September 19, 2022 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.

September 2, 2022September 2, 2022 by Michelle Pardo

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”

June 27, 2022 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.”