Animal rights groups often pursue consumer-type cases against food producers and argue that packaging claims and images supposedly mislead buyers into thinking that the animals turned into food were humanely raised. The goal really isn’t transparency. The goal is to use the cost of defending such claims to end the eating of animals as food. On August 9, 2024, the D.C. Circuit knocked out such a case on standing grounds. Animal Legal Defense Fund, Inc., v. Vilsack, No. 23-5009 (D.C. Cir. Aug. 9, 2024). Continue reading “D.C. Circuit Bounces Animal Rights Case on Standing Grounds”
Supreme Court Guts USDA’s Power to Assess Civil Penalties Under the Animal Welfare Act
Somewhat overshadowed by Chevron’s spectacular crash and burn last week was the Supreme Court’s decision the day before in SEC v. Jarkesy, No. 22-859 (U.S. June 27, 2024), holding that the SEC’s assessment of civil penalties in an administrative proceeding is unconstitutional because it deprives the party assessed of its Seventh Amendment right to trial by jury. This result has particular significance for those regulated by the U.S. Department of Agriculture (USDA) under the Animal Welfare Act (AWA). Continue reading “Supreme Court Guts USDA’s Power to Assess Civil Penalties Under the Animal Welfare Act”
USDA and DOJ Announce Top Priorities for Civil Enforcement of the Animal Welfare Act
By Michelle C. Pardo and Brian Pandya
Last month, the Department of Justice Environmental and Natural Resources Division (ENRD), the United States Department of Agriculture (USDA) Animal and Plant Health Inspection Service (APHIS) and the USDA Office of General Counsel (OGC) announced the issuance of a Memorandum of Understanding (MOU) on civil judicial enforcement of the Animal Welfare Act (AWA). What does this mean for USDA licensees and registrants? Our Q&A breaks it down. Continue reading “USDA and DOJ Announce Top Priorities for Civil Enforcement of the Animal Welfare Act”
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.
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
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- Excluded from the regulatory definitions of “carrier” and “intermediate handler” under 9 C.F.R. § 1.1
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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)
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”
Animal Rights Groups Don’t Want FSIS to Mandate Identification of Lab-Grown Meat Production Process on Product Labels
By Michelle C. Pardo
Four animal rights groups have submitted a joint public comment in response to the Food Safety and Inspection Service’s (FSIS) advanced notice of proposed rulemaking on the labeling of meat and poultry products comprised of or containing cultured cells derived from animals subject to the Federal Meat Inspection Act or the Poultry Products Inspection Act.
While cell-cultured or lab grown meat (also referred to as “clean meat” or “fake meat”) has been in the headlines for years, the road to federal regulation of such products and their debut on store shelves is still a work in progress. We previously blogged about animal rights groups’ efforts to stop state consumer fraud laws from limiting their ability to label and market lab-grown, insect or plant-based foods. (Read those blog entries here; here; here; and here). But, the bigger stakes (steaks?) regarding meat labeling are set to occur at the federal level during the U.S. Department of Agriculture’s (USDA) Food Safety and Inspection Service (FSIS)’s rulemaking. Continue reading “Animal Rights Groups Don’t Want FSIS to Mandate Identification of Lab-Grown Meat Production Process on Product Labels”
Animal Rights Group Sues USDA Over “Non-Enforcement” of Animal Welfare Act
By Michelle C. Pardo
Earlier this month, animal rights group The American Society for the Prevention of Cruelty to Animals (ASPCA) filed a lawsuit under the Administrative Procedure Act (APA) against the U.S. Department of Agriculture (USDA) for what it alleges to be the agency’s non-enforcement of the Animal Welfare Act (AWA) as it pertains to commercially bred dogs. ASPCA v. Animal and Plant Health Inspection Service, et al. (1:21-cv-01600) (D.D.C.). Continue reading “Animal Rights Group Sues USDA Over “Non-Enforcement” of Animal Welfare Act”
Activist Case Involving Chicken Farm Fails in D.C. Circuit on Standing Grounds
On June 22, 2021, the U.S. Court of Appeals for the District of Columbia Circuit dismissed an action brought by Food & Water Watch against the U.S. Department of Agriculture (USDA) challenging the environmental assessment made in connection with the Farm Service Agency’s guarantee of loan to a Maryland chicken farmer. Food & Water Watch v. U.S. Dep’t of Agriculture, ___ F.3d ___, No. 20-5100 (D.C. Cir. June 22, 2021). Plaintiff had argued that the agency’s finding of no significant impact for the guarantee violated the National Environmental Policy Act (NEPA). The district court found standing to sue but rejected the plaintiff’s challenge on its merits. On appeal, however, the D.C. Circuit ruled that the plaintiff had no Article III standing. Continue reading “Activist Case Involving Chicken Farm Fails in D.C. Circuit on Standing Grounds”
D.C. Circuit Ducks Constitutionality of USDA ALJ’s — For Now
A divided three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit recently decided a significant case for those animal-related businesses who are subject to regulation by the U.S. Department of Agriculture (USDA). Fleming v. U.S. Dep’t of Agriculture, No. 17-1246, 1249 & 1250 (D.C. Cir. Feb. 16, 2021). Continue reading “D.C. Circuit Ducks Constitutionality of USDA ALJ’s — For Now”