Tag Archives: Michelle Pardo

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.

 

 

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?

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

The Case of the Austin Blind Salamander

By Michelle Pardo

Question: What do you get when you cross an Austin Blind salamander, a Barton Springs salamander, a golden-cheeked warbler, and a Texas highway project?

Answer: An Endangered Species lawsuit.

On February 28, 2019, environmental advocacy group Save Our Springs (SOS) and frequent litigator Center for Biological Diversity (Center) sent a 60-Day Notice of Intent to Sue letter to the Texas Department of Transportation (TexDOT), the US Department of Interior and the US Fish and Wildlife Service (FWS), which is a prerequisite to filing a lawsuit pursuant to the  Endangered Species Act (ESA).

The ESA is a federal law that prohibits the “taking” of threatened and endangered species, 16 USC § 1538; “take” has means to harass, harm, pursue, hunt, shoot, would, kill, trap, capture or collect (or attempt such conduct).

The environmental groups claim that the construction of the MoPac Intersections Project, a federally-funded highway project for which the TexDOT is the lead agency, risks an illegal “take” of three endangered species. According to the city of Austin’s official government website, the Austin Blind Salamander gets its name because it does not have “image-forming eyes”, a result of living in its dark, underground habitat in the waters of Barton Springs. The aptly-named Barton Springs salamander shares this same habitat. The other critter named in the potential lawsuit – the golden-cheeked warbler – was one of the eight endangered species protected by the first major urban habitat plan in the country. The groups claim that tree removal due to construction impacts the warbler’s nesting and foraging behaviors. Continue reading The Case of the Austin Blind Salamander

California Bill Would Allow Drivers To Legally Eat Roadkill

by: Michelle Pardo

The “You Kill It, You Grill It” headline dominated yesterday’s news across California and other internet media outlets. California State Senator Bob Archuleta (D-Montebello) has introduced legislation that will amend state law to allow drivers who fatally strike certain animals to retroactively apply for a wildlife salvage permit and consume the meat. Drivers of vehicles (and opportunistic non-drivers who come across roadkill) would be able to take advantage of the new law, which requires applying for a wildlife salvage permit, at no cost, within 24 hours of the collision. Existing law allows only state and local agencies to remove roadkill. The bill’s text notes that each year “it is estimated that over 20,000 deer alone are hit by motor vehicles on California’s roadways” and that “this translates into hundreds of thousands of pounds of healthy meat that could be utilized to feed those in need.”

The bill applies to certain species – deer, elk, antelope and wild pig – and does not cover any animal protected by the California Endangered Species Act. If the animal is injured but not killed by the collision, the bill allows the salvager to dispatch the animal “in a safe, legal, and humane manner”.  If passed, the law would go into effect in 2021.

California is not a trailblazer in the area of roadkill legislation. Oregon and Washington both have laws that allow certain roadkill to be salvaged, as well as roughly 20 other states. Many states have tight restrictions on harvesting roadkill and limit the practice to licensed hunters. Oregon’s law, which allows salvaging of deer and elk, went into effect in January of this year. Free permits (with online applications) must be obtained within 24 hours of salvage. Oregon requires the antlers and head of any salvaged animal to be surrendered to an Oregon Department of Fish and Wildlife office within five business days of taking the carcass so as not to incentive the practice of selling body parts (such as antlers) to collectors.

The state of Oregon, which offers a helpful link to the key regulations for salvaging roadkill, warns people who take advantage of the law that they “will consume the meat at their own risk”. The U.S. Department of Agriculture does not regulate roadkill.

Perhaps surprisingly, it has been reported that animal rights activists consider roadkill to be one of the most ethical and environmentally friendly meats. Advocates recognize that these animals were not purposefully raised for food and the meat would otherwise go to waste. California appears to be a leader in “wildlife-vehicle conflict” (WVC) which is studied and cataloged by the University of California—Davis. For those who are curious, the UC—Davis publicly-available website shows the “WVC hotspots” along California’s roadways.

Animal Rights Activists v. Big Agriculture: Who Gets to Claim Ownership of the Term “Meat”

by Michelle C. Pardo

We previously blogged about a legal challenge to Missouri’s amended advertising law that regulates what products are permitted to use the term “meat”.  Nebraska is the latest state to consider legislation that aims to define what can be marketed and sold as “meat”. This year, Nebraska lawmakers will consider a bill that defines meat as “any edible portion of any livestock or poultry, carcass, or part thereof.”  Excluded from the definition of meat: “lab-grown or insect or plant-based food products.” (Yes, you read that right. Edible insects are apparently on trend and being promoted as an “efficient, sustainable source of protein and nutrients”). Continue reading Animal Rights Activists v. Big Agriculture: Who Gets to Claim Ownership of the Term “Meat”

Lions and Tigers and Bears (No Way!): New Jersey Bans Exotic Animals in Traveling Shows

by Michelle C. Pardo

Last week, New Jersey became the first state in the nation to enact a law prohibiting the use of elephants and other wild or exotic animals in traveling animal acts.  Governor Phil Murphy signed a bill authorizing the statewide ban after it received a significant margin of votes in the Legislature.  The bill had passed last session but was pocket vetoed by Governor Chris Christie. Continue reading Lions and Tigers and Bears (No Way!): New Jersey Bans Exotic Animals in Traveling Shows

USDA and FDA Announce Joint Regulatory Oversight for Cell-Cultured Food Products

by Michelle C. Pardo

On November 16, 2018, the U.S. Department of Agriculture (USDA) and the U.S. Food and Drug Administration (FDA) announced that the two Agencies will jointly oversee the production of cell-cultured food products derived from livestock and poultry (referred to by some as “clean meat”). This announcement follows October meetings between the two Agencies and stakeholders about issues related to regulatory oversight for this new technology, including issues related to potential hazards in production.

In an official statement:

“the Agencies are today announcing agreement on a joint regulatory framework wherein FDA oversees cell collection, cell banks and cell growth and differentiation. A transition from FDA to USDA oversight will occur during the cell harvest stage. USDA will then oversee the production and labeling of food products derived from the cells of livestock and poultry.”

The Agencies noted that this joint oversight takes advantage of the FDA’s and the USDA’s respective experience with new food technologies, living bio systems, and regulation of livestock and poultry products for human consumption. The Agencies and the Administration have taken the position that no new legislation on this topic is necessary. While many in the meat industry had presumed that the two Agencies would share regulatory oversight, the respective roles were not defined prior to this announcement. Cell-cultured meat companies seemed to have favored the FDA as the primary regulatory agency, while those that raise livestock and poultry for slaughter tended to favor the USDA taking the lead.

Some traditional meat companies have criticized cell-cultured meat technology as “fake meat”.  We previously blogged about a lawsuit challenging state laws that limit what type of product can be labeled as “meat”.  (“What’s Your Beef: Legal Challenge to Missouri’s Meat Advertising  Law)  https://blogs.duanemorris.com/animallawdevelopments/tag/clean-meat/.   Whatever the products marketed and sold to consumers are eventually called — be it “cell-cultured food products”, “clean meat”, “lab grown meat”, “synthetic meat” or “in vitro meat” — this technology is bound to spark further debate among stakeholders in the food industries, the scientific community, consumers, and animal rights activists.

The public comment period on this issue is extended until December 26, 2018.

On the Road with Duane Morris’ Animal Lawyers

We’re hitting the road to attend exciting industry conferences that focus on animal businesses and organizations.  If you are attending, please look us up!

On September 24 through 26, Duane Morris animal law attorneys Michelle Pardo and Rebecca Bazan will be attending the Association of Zoos & Aquariums’ Annual Conference in Seattle, Washington. We are looking forward to attending the Icebreaker event at the Seattle Aquarium and a host of informative animal-related sessions.

On October 18, Duane Morris Partner Michelle Pardo will be speaking at the North American Meat Institute’s Animal Care and Handling Conference in Kansas City, MO. The Animal Care and Handling Conference for the Food Industry is the leading animal welfare educational opportunity for meat companies, their customers and those involved in the production and management of livestock and meat products. This important conference has doubled in size since it was launched in 1999 – testament to the increasing significance of animal care and handling in the meat industry.