Brooks Animal Law Digest

President Biden signed House Resolution 2617, the “Consolidated Appropriations Act, 2023” which contains several animal-related provisions, including:

• removal of the Food and Drug Administration Act requirement for animal testing in drug development;
• an additional $4 million in funding for the USDA Animal and Plant Health Inspection Service (APHIS) Animal Care Division;
• reiteration of the prohibition on teachable moments and a requirement that APHIS inspectors document all observed Animal Welfare Act non-compliances;
• more than $4 million for Horse Protection Act enforcement, in part to combat horse soring;
• strengthening the Horseracing Integrity and Safety Act;
• a directive to the U.S. Fish and Wildlife Service (USFWS) to continue revising the trophy hunting import permitting process, and to report back to Congress about any additional actions regarding protecting lions and other iconic species that are hunted for trophies to ensure the conservation and survival of those species;
• the Driftnet Modernization and Bycatch Reduction Act, which calls for phasing out the use of large harmful mesh drift gillnets that trap and kill large numbers of non-target marine species, including whales, dolphins, and sea lions in federal waters;
• a last-minute policy rider that gives the lobster fishing industry six more years to avoid key conservation measures aimed at preventing right whales from becoming entangled in fishing gear.

More details can be found in the associated bill summaries and explanatory statements.

The Promoting Agriculture Safeguards and Security (PASS) Act would amend the Defense Production Act of 1950 in multiple ways aimed at preventing foreign control of U.S. agriculture land and companies. The bill would:

• Prohibit China, Russia, Iran and North Korea from purchasing U.S. agricultural land and agricultural companies;
• Add the Secretary of Agriculture as a standing member of the Committee on Foreign Investment in the United States to consider agriculture needs when making determinations affecting our national security; 
• Require the President to submit a report to Congress on any waiver granted to a prohibited country; and
• Require reporting from the Secretary of Agriculture on the risk of foreign purchases of agriculture companies to the American agriculture sector.

The bill was introduced by Representatives Elise Stefanik, Jim Costa, Rick Crawford, and Senators John Tester and Mike Rounds. It has not yet been assigned a bill number or referred to a committee. 

Senate Bill 549, the “Defending Against Imitations and Replacements of Yogurt, Milk, and Cheese to Promote Regular Intake of Dairy Everyday Act (DAIRY PRIDE Act) of 2023,” would prohibit non-dairy products made from nuts, seeds, plants, and algae from using terms such as “milk,” “yogurt” or “cheese.” Earlier versions of the bill were introduced in 2017, 2019, and 2021, and the measure now runs counter to the U.S. Food and Drug Administration’s recent draft guidance allowing nut, oat, soy, and other non-dairy products to be labeled as "milk.” The bill was introduced by Senators Tammy Baldwin, Jim Risch, Susan Collins, and Peter Welch (D-VT) and has been referred to the Senate Committee on Health, Education, Labor, and Pensions.

Senate Bill 771, despite being named the “Saving America's Vulnerable and Endangered Species Act,” would amend the Endangered Species Act (ESA) to remove all ESA protections for nonnative species in the United States to facilitate captive hunting ranches. The bill was introduced by Senator Ted Cruz and referred to the Senate Committee on Environment and Public Works. The companion bill, House Resolution 1558, was introduced by Representative Nathaniel Moran and has been referred to the House Natural Resources Committee. If enacted, the bill would have significant ramifications beyond broad legalization of killing imperiled species, including facilitating the exotic pet trade and precluding further ESA citizen suits like the one pending against a roadside zoo in Rep. Moran’s district that has been criticized for its treatment of tigers, lions, lemurs, and other captive wild animals.

House Resolution 1604, the “USA Beef Act,” would amend the Federal Meat Inspection Act to require that beef products must come from cattle “exclusively born, raised, and slaughtered in the United States” in order to bear a “Product of the U.S.A.” label. It is unclear how these requirements would apply to cultivated beef products. The bill was introduced by Representative Matthew Rosendale and has been referred to the House Committee on Agriculture. Bill text is not yet publicly available.

House Resolution 1624, the “Puppy Protection Act of 2023,” would amend the federal Animal Welfare Act to bolster standards for licensed commercial dog breeders and would require the U.S. Department of Agriculture to promulgate rules to improve standards for dogs kept by commercial dog breeders. The bill was introduced by Representative Brian Fitzpatrick and has been referred to the House Committee on Agriculture.

Idaho Governor Brad Little signed Senate Bill 1084 which exempts all U.S. Department of Agriculture-licensed facilities from state laws and oversight concerning captive wildlife, including reporting requirements relating to the import, export, birth, and death of animals. Yellowstone Bear World, an Idaho roadside zoo, lobbied for the legislation.

Hawaii House Bill 1293 would require cage-free housing systems for egg-laying hens beginning January 1, 2025. The bill has been referred to the House Committee on Agriculture.

Iowa House File 164 and Senate File 124 would establish a moratorium on construction or expansion of concentrated animal feeding operations (CAFOs), including those that are only partially roofed. The bill has been referred to the House Agriculture Committee.

Iowa House File 572 would criminalize the use of drones and “remotely piloted aircraft” over feedlots or other properties “used to maintain agricultural animals” and would provide enhanced criminal penalties for use of drones equipped with cameras or other surveillance equipment. The bill has been referred to the House Agriculture Committee.

Idaho House Bill 377, the “Agricultural Protection Area Act,” would establish state funding for the preservation of farmland, would prohibit localities from enacting municipal ordinances that “would restrict a farm structure or farming practice, unless that farm structure or farming practice does not comply with generally recognized farming practices,” and would exempt agricultural activities within agricultural protection areas from public nuisance actions. The bill has not yet been assigned to a committee.

Minnesota House File 2420 would establish a pilot program for plant-based food research and development and a scholarship program to assist in meeting the workforce demand for the plant-based food industry in Minnesota. The bill has been referred to the House Committee on Agriculture Finance and Policy.

Missouri House Bill 576 would create the felony offense of “interference with the transportation of livestock.” The bill has not yet been assigned to a committee.

New York Assembly Bill 341 would make it a misdemeanor punishable by up to a year in prison and $1,000 penalty per violation to “tether or confine any covered animal … on a farm for all or the majority of any day, in a manner that prevents such animal from laying down, standing up and fully extending its limbs and turning around freely.” The bill has been referred to the Assembly Agriculture Committee.

New York Assembly Bill 473 would prohibit any person from tethering or confining any pig during pregnancy or calf raised for veal for all or the majority of any day in a manner that prevents such animal from lying down, standing up and fully extending its limbs, and turning around freely. The bill has been referred to the Assembly Committee on Agriculture.

New York Assembly Bill 107 would require a farm owner or operator that produces shell eggs or liquid eggs for human consumption to provide egg-laying hens with cage-free housing. The bill has been referred to the Assembly Committee on Agriculture.

New York Assembly Bill 41 would establish that animals are sentient beings capable of experiencing pain, stress, and fear and would direct courts to treat animals as victims of crimes in cruelty cases. The bill has been referred to the Assembly Agriculture Committee.

New York Assembly Bill 518 would prohibit the possession and transport of certain wildlife species or parts thereof at airports and port facilities owned or operated by the Port Authority of New York and New Jersey. The bill, which aims to prevent the import of trophy hunted animals from Africa, has been referred to the Assembly Committee on Corporations, Authorities, and Commissions and would become effective upon enactment by both New York and New Jersey. New Jersey has not yet introduced similar legislation.

New York Senate Bill 996 would require every public school to offer plant-based meals and snacks upon request by any student or any student’s parent. The bill has been referred to the Senate Committee on Education.

South Dakota House Bill 1068 would prohibit the advertising or sale of products as meat or poultry that are not traditional meat or poultry. The bill has not yet been assigned to a committee.

Texas House Bill 1788 would impose labeling requirements for plant-based alternatives and cultivated meat products. The bill has not yet been assigned to a committee.

Texas Senate Bill 1421 would prohibit nuisance actions against agricultural operations that have been in operation for at least a year. The bill also would eliminate an existing provision that requires new dates of operation for each expansion to an existing agricultural operation, so all dates of operation would revert to the original facility beginning date regardless of the number or size of subsequent expansions. The bill also would limit the ability of incorporated cities to pass ordinances regulating agricultural facilities. The bill has not yet been assigned to a committee.

The U.S. District Court for the Northern District of California ruled that the National Marine Fisheries Service (NMFS) violated the Marine Mammal Protection Act by issuing a 2021 incidental take permit for the sablefish pot fishery off California, Oregon, and Washington without developing a take reduction plan for Endangered Species Act-protected humpback whales. U.S. District Court Judge James Donato granted summary judgment in favor of the Center for Biological Diversity, finding that “NMFS cannot indefinitely delay developing a take reduction plan while continuing to authorize . . . permits for the incidental take of endangered and threatened humpback whales.”

The Center for Biological Diversity, Defenders of Wildlife, Friends of the Earth, Greenpeace, Inc., and the Natural Resources Defense Council sued the Bureau of Land Management, U.S. Fish and Wildlife Service, National Marine Fisheries Service, U.S. Department of the Interior, and the U.S. Department of Commerce, challenging approval of ConocoPhillips Alaska Incorporated’s Willow Master Development Plan (“Willow Project”) in the National Petroleum Reserve. Plaintiffs filed the suit in the U.S. District Court for the District of Alaska alleging that the Willow Project violates the National Environmental Policy Act, the National Petroleum Reserves Production Act, and fails to consider the impact of carbon emissions on Endangered Species Act-protected species. Plaintiffs are seeking declaratory judgment and injunctive relief.

The U.S. District Court for the District of Maryland ruled that the U.S. Department of Agriculture (USDA) acted unlawfully by denying a petition for rulemaking (PFR) submitted by Rise for Animals and the Animal Legal Defense Fund (ALDF) to improve the standards for the psychological well-being of primates used in research. Judge Julie Rubin found that the USDA had relied upon “facts known by it to be false” and further that the agency failed to respond to any of the more than 10,000 public comments it received, most of which urged the agency to grant the PFR. The judge’s ruling further declared that the USDA’s “secret policy” of not fully inspecting every facility each year is also unlawful. Rise for Animals and ALDF are represented by Harvard Law School’s Animal Law & Policy Clinic, which also is suing the USDA over the inspection policy.

The U.S. Department of Agriculture’s Animal and Plant Health Inspection Service (APHIS) announced its plan to strengthen Animal Welfare Act (AWA) regulations for:

• the handling of wild and exotic animals for exhibition;
• the training of personnel involved in the handling of wild and exotic animals; and,
• the establishment of environmental enrichment standards for all regulated animals.

APHIS’ announcement comes only thirteen days after President Biden signed the Big Cat Public Safety Act, which, in pertinent part, prohibits AWA exhibitors from offering any species of big cat (with the exception of cheetahs) for public contact. APHIS will accept public comments through March 10, 2023.

The U.S. Department of Labor (DOL) announced that Packers Sanitation Services, Inc. (PSSI), one of the largest food safety sanitation service companies, has paid $1.5 million in civil penalties for violations of the Fair Labor Standards Act in connection with its unlawful use of more than one hundred children, some as young as thirteen years of age, for graveyard shifts cleaning the “killing floors” and “meat and bone cutting saws” at slaughterhouses owned by JBS USA, Tyson Foods, Cargill, and others. The DOL, which obtained a permanent injunction against PSSI in December 2022, reports that multiple children were injured due to the hazardous conditions.

The U.S. Department of Agriculture (USDA) announced final Animal Welfare Act regulations to establish standards governing the humane handling, care, treatment, and transportation of birds not bred for use in research after half a century of abdicating its statutory responsibility to inspect such birds. The new rules are effective March 23, 2023.

The U.S. Fish & Wildlife Service (FWS) announced withdrawal of a proposed rule to amend refuge-specific regulations for Kenai National Wildlife Refuge that would have allowed the killing of brown bears at bait stations and trapping without a federal permit.

GOOD Meat, the cultivated meat division of Eat Just, Inc., received a letter of no questions from the U.S. Food & Drug Administration (FDA) for its cultivated chicken product two years after it was approved in Singapore. The FDA stated that it has "no questions at this time regarding GOOD Meat’s conclusion that foods comprised of or containing cultured chicken cell material ... are as safe as comparable foods produced by other methods." World-famous chef, José Andrés, will be the first in the country to offer GOOD Meat’s chicken to restaurant customers in the United States.The GOOD Meat letter comes four months after Upside Foods received the first FDA pre-clearance for a cultivated chicken product. Both products now must receive additional regulatory approval from the USDA before they can be offered to consumers.

Perdue Farms, LLC has submitted a petition for rulemaking to the U.S. Department of Agriculture’s Food Safety and Inspection Service (FSIS) requesting that FSIS define separate “free range” and “pasture raised” claims for meat and poultry products. The petition also requests that FSIS update its guidance on claims related to living/raising conditions to ensure that the claims align with consumer expectations.