Brooks Law Digest: Consumer Protection

Florida SB 416, “Sevilla’s Law,” is a consumer protection bill that seeks to establish mandatory professional standards and accountability for the companion animal cremation industry. The bill would require providers of companion animal cremation services to provide several written disclosures and include a certification with the returned animal’s cremated remains. It also would allow for agency fines and for civil penalties under a private right of action. The bill has been reintroduced after not passing during the previous legislative session.

H.R. 5203, “The Ejiao Act,” would amend the Federal Food, Drug & Cosmetic Act to prohibit the intentional sale or importation of ejiao, a controversial gelatin made from donkey skin which is commonly used in traditional Chinese medicine and cosmetic products, in foreign or interstate commerce. Dubious claims about the medicinal value of ejiao are triggering widespread theft and slaughter of donkeys in developing nations in order to meet the global demand. In an effort to curtail illicit trafficking and negative impacts on communities and animals, eBay and others already have banned its sales. The bill was introduced by Rep. Don Beyer.

The Food & Drug Administration is seeking public comments on its Center for Veterinary Medicine’s draft guidance entitled “Good Manufacturing Practices for Animal Cells, Tissues, and Cell- and Tissue-Based Products.” That guidance seeks to ensure that the manufacture of such products meeting the definition of new animal drugs complies with the Federal Food, Drug, & Cosmetic Act. The guidance, specifically concerns product identification, safety, strength, purity, and quality. The comment period is open through November 22, 2021. 

The Food & Drug Administration has announced a final rule codifying procedures and food safety criteria for the establishment, amendment, or revocation of tolerances for residues of unapproved new animal drugs in animals who are imported for human consumption. These import tolerances provide a basis for the legal marketing of animal-derived food and would become effective January 19, 2022. The FDA is accepting comments regarding information collection issues through October 21, 2021.

A putative consumer class action has been filed in the U.S. District Court for the Northern District of California alleging that Kellogg Sales Company’s advertisement of its MorningStar brand “Veggie” products (including “Veggie Burgers” and “Veggie Dogs”) violates numerous California consumer protection laws. Plaintiffs allege that the “Veggie” labeling is false or misleading because it suggests that vegetables are the primary ingredients in such products when they instead are predominantly comprised of grain and oil. Plaintiffs are seeking a recall of Kellogg’s MorningStar products labeled in this manner, a corrective advertising campaign, disgorgement, and restitution.

USDA’s Food Safety and Inspection Service has responded to Harvard Animal Law & Policy Program’s petition for FSIS to develop a labeling approach for “cell-based” meat and poultry products that respects First Amendment commercial speech protections by not requiring new standards of identity and not banning the use of common or usual meat or poultry terms or other product terms specified in current codified standards of identity. In its letter, FSIS “agrees that more information is necessary to develop new labeling requirements for these products,” stating that in response to the Harvard petition the agency filed an advance notice of proposed rulemaking (ANPR) on September 3, 2021, “to request comments pertaining to the labeling of meat and poultry products comprised of or containing cultured cells derived from animals subject to the Federal Meat Inspection Act or Poultry Products Inspection Act.” Conversely, FSIS has denied a February 9, 2018, petition by U.S. Cattlemen’s Association which urged the agency to exclude “cell-based” meat and plant-based meat substitutes from the definition of “beef” and “meat,” citing the FDA’s exclusive jurisdiction over plant-based products and the USDA’s September 3, 2021, ANPR regarding labeling of cultivated meat.

H.R. 5246, the ‘‘Expanding Markets for State-Inspected Meat Processors Act of 2021’’ would amend the Federal Meat Inspection Act in order to allow the interstate sale of meat that has been inspected by the respective state agency, rather than the U.S. Department of Agriculture. Until recently, Wyoming had no federally inspected animal agriculture facilities, precluding Wyoming-based producers from selling to out-of-state consumers. The bill has not yet been assigned to a committee. Reps. Liz Cheney and Carol Miller introduced the legislation as they did in 2020.

S. 2716, the ‘American Beef Labeling Act of 2021’ would amend the Agriculture Marketing Act of 1946 to establish country of origin labeling requirements for beef products. The bill has been referred to the Senate Committee on Agriculture, Nutrition, and Forestry. Sens. John Thune, Jon Tester, Mike Rounds, and Cory Booker introduced the legislation.

Illinois Governor J.B. Pritzker has signed into law HB 572 which amends the Sales Finance Agency Act to prohibit providing financing, loans, or retail installment contracts for the purchase of dogs or cats. Any such agreement made in violation of the law shall be null and void and the lender precluded from collecting any further payments. This is the first state law to address these types of predatory lending practices at pet stores.

House Bill 4239, the Healthy Dog Importation Act, would amend the Animal Health Protection Act to clarify standards for the importation and transfer of live dogs into the United States. The bill would require that a dog be in “good health,” “has received all necessary vaccinations and demonstrated negative test results,” and “officially be identified by a permanent method” (such as a microchip). A certificate “issued by a licensed veterinarian accredited by a competent veterinary authority recognized by the Secretary” would suffice as evidence of the required vaccinations and test results. The bill would provide exemptions to these requirements for dogs imported for research purposes or veterinary treatment.