General – Page 3 – Animal Law Developments

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)

February 9, 2023 by John M. Simpson

PETA Hog-Catching Case Fails for Lack of Standing

On February 8, 2023, the Texas Fourth Court of Appeals affirmed a judgment dismissing a lawsuit that animal rights group, People for the Ethical Treatment of Animals (PETA), and a former PETA employee had brought seeking to enjoin the “Bandera Wrangler’s Hog Catch,” a feral hog-catching contest held annually in Bandera, Texas. PETA v. Bandera Wranglers, No. 04-21-00466-CV (Tex. Civ. App. — San Antonio 2023). The court ruled that neither plaintiff had standing to sue under Texas law. Continue reading “PETA Hog-Catching Case Fails for Lack of Standing”

February 2, 2023 by John M. Simpson

With the Death Rate in PETA’s Animal Shelter, It Really Is Groundhog Day

Annually, animal rights group People for the Ethical Treatment of Animals (PETA) condemns Groundhog Day. This year, PETA called the exhibition of Punxsutawney Phil “a cruel form of speciesism, a human supremacist worldview.” Ironically, Groundhog Day is around the same time that PETA reports the euthanasia rates in its Norfolk, Virginia shelter to the Virginia Department of Agriculture and Consumer Services (VDACS). As a further irony, the theme of the movie “Groundhog Day,” in which the protagonist experiences the same thing over and over again, accurately characterizes PETA’s kill rate: just like last year and the year before and the year before that, PETA euthanized animals in 2022 at a rate that vastly exceeded the rates of facilities in Virginia reporting to the VDACS. Continue reading “With the Death Rate in PETA’s Animal Shelter, It Really Is Groundhog Day”

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.

January 6, 2023 by John M. Simpson

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”

November 21, 2022November 21, 2022 by John M. Simpson

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”

November 18, 2022 by John M. Simpson

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.

November 16, 2022 by John M. Simpson

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”

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.