Brooks Animal Law Digest

The United States Supreme Court upheld California’s Proposition 12 that bans the sale of animal products produced using intensive confinement practices such as gestation crates, battery cages, and veal crates. Justice Neil Gorsuch authored the majority decision, rejecting the dormant commerce clause argument advanced by the National Pork Producers Council, the American Farm Bureau, and their amici, stating, “While the Constitution addresses many weighty issues, the type of pork chops California merchants may sell is not on that list.” All of the Justices unanimously rejected the pork industry’s claim that Prop 12’s ban on the sale of such products is unconstitutional merely because it has indirect effects on out-of-state producers. Justice Gorsuch was joined further by Justices Elena Kagan, Sonia Sotomayor, Clarence Thomas, and Amy Coney Barrett in voting 5-4 to reject the industry’s secondary claim that the benefits of Prop 12 are outweighed by the negative effects on commerce. Chief Justice John Roberts, joined by Justices Samuel Alito, Brett Kavanaugh, and Ketanji Brown Jackson dissented on that secondary point, arguing that the 9th Circuit had misapplied existing Pike jurisprudence, and that the case therefore should have been remanded for a determination of whether the law imposes an impermissible burden on out-of-state entities. 

House Resolution 2939, the “Pigs in Gestation Stalls (PIGS) Act of 2023” would amend the federal Animal Welfare Act to permanently ban the intensive confinement of pregnant sows and require each pig to have at least twenty-four square feet of space. The bill also would direct the Secretary of Agriculture to direct the National Pork Board to set aside not less than $10,000,000 of the funds collected from assessments to financially assist pig producers in complying with the requirements in each of the first two years after enactment. Representative Veronica Escobar introduced the bill, which has been endorsed by more than sixty animal welfare, environmental, and farming groups and has been assigned to the House Committee on Agriculture.

Minnesota House File 3300 would establish an Office of Animal Protection in the Department of Public Safety and provide training for agents to specialize in investigating animal cruelty crimes to more effectively investigate, prosecute, and prevent animal cruelty crimes. The bill also would require that the Office of the Attorney General hire an attorney with “knowledge of animal law” to serve as assistant attorney general “assigned to the Office of Animal Protection to provide expertise in animal law.” The bill has been referred to the Committee on Public Safety Finance and Policy.

Pennsylvania House Bill 1114 would prohibit the transportation of a “performance animal,” through the state for purposes of  circuses or other traveling animal acts. “Performance animal” is defined to include bears, big cats, elephants, zebras, giraffes, kangaroos, nonhuman primates, tapirs, sharks, seals, sea lions, rhinoceroses, and hippopotami––effectively banning circuses with animals from entering the state. The bill has been referred to the House Committee on Agriculture and Rural Affairs.

The U.S. Court of Appeals for the Fifth Circuit reversed a lower court ruling that Louisiana’s “Truth in Labeling of Food Products Act” infringes on food companies’ free speech rights and vacated an injunction of the law. The appellate panel concluded that the law, when construed narrowly, does not violate the First Amendment’s protection of commercial free speech. Turtle Island Foods, S.P.C., doing business as Tofurky Co., challenged the 2019 law, which prohibits “[r]epresenting a food product as meat or a meat product when the food product is not derived” from animals.

The U.S. District Court for the Western District of Washington issued an order that likely will prevent summer and winter commercial Chinook salmon troll fishing in southeast Alaska. U.S. District Judge Richard Jones’s order vacated part of the National Marine Fisheries Service’s (NMFS) 2019 biological opinion, which allows Alaska to open fisheries without violating the Endangered Species Act. Previously, in August of 2022, Judge Jones adopted a report finding that NMFS violated federal law when it approved commercial fishing that put endangered Southern Resident killer whales in peril. The latest decision effectively shuts down the fisheries, pending approval of a new biological opinion.

The Kroger Co. is facing a putative class action in the U.S. District Court for the Central District of Illinois in connection with the grocery company’s eggs labeled as “Positive Farm Fresh,” “Farm Fresh,” and “Grade A,” which, lead plaintiff Larry Long alleges, mislead customers into believing that the eggs come from cage-free hens. The lawsuit comes only weeks after Michigan Attorney General Dana Nessel directed correspondence to Kroger urging the grocer “to add clear signage to your stores to help consumers understand which eggs, exactly, came from caged chickens.” Plaintiff is seeking class certification, class-wide injunctive relief, damages, and costs for Kroger’s alleged violations of consumer protection laws in multiple states.

The U.S. Department of Agriculture’s Animal and Plant Health Inspection Service (APHIS) released its Strategic Plan for Fiscal Years 2023-2027 (Strategic Plan). The plan includes a number of goals, including reduction of the impacts of zoonotic diseases; expansion of the trade in agricultural products nationally and internationally; and promotion of animal welfare by updating and enhancing Animal Welfare Act (AWA) regulations. The proposed updates to the AWA regulations include moving “more quickly to confiscate animals at extreme risk,” improving AWA inspections by five percent over fiscal year 2022, and eliminating horse soring. APHIS released the Strategic Plan alongside a report on projected trends that will impact the agency over the next 20-30 years. The report notes shifting attitudes and values concerning health and animal welfare, including a growing number who believe that “livestock and wildlife should be provided the same rights as domesticated pets” which will likely trigger pressure on APHIS to “prioritize the use of humane animal agricultural practices” and, “as the list of animals considered pets expands, farms may be subject to AWA regulation.”

Secretary of Agriculture Tom Vilsack sent a letter to members of the meat and poultry industry regarding use of child labor in meat processing facilities and requested that the industries take precautionary steps to determine whether child labor is being used anywhere in the supply chain, include strong contractual language authorizing unannounced inspections and sanctions, and to adopt standards for suppliers, subcontractors, and vendors that will “better guard against the use of illegal child labor.” The letter also advises recipients that the U.S. Department of Agriculture will implement “increased oversight to curb this recent trend as quickly as possible.”

The Food and Drug Administration (FDA) is reopening the comment period for the draft guidance entitled “Labeling of Plant-Based Milk Alternatives and Voluntary Nutrient Statements; Guidance for Industry” in response to requests for an extension to allow interested persons additional time to submit comments. The FDA will now accept public comments through July 31, 2023.

A new report, “External costs of animal sourced foods in the EU,” examines the “external costs to human health, the environment, low animal welfare and human livelihood brought about by producing and consuming animal sourced food.” The report, commissioned by Eurogroup for Animals, was intended to provide the European Commission with insights and recommendations regarding the European food system. The findings demonstrate that a wide-scale shift to a flexitarian diet in the EU, with less consumption of red and white meat, would reduce external costs related to animal sourced food consumption by over 70%. 

Between April 29, 2023, and May 6, 2023, seven horses died at Churchill Downs in the leadup to the iconic Kentucky Derby. Four horses were euthanized after sustaining track injuries, one was euthanized after suffering a broken neck caused by repeated flipping that his trainer attributes to lights in a nearby DJ booth, and two additional horses died under “mysterious circumstances,” prompting the indefinite suspension of their trainer. The deaths are being investigated by the Kentucky Horseracing Commission and the Horseracing Integrity and Safety Authority.

Senate Bill 1227, the “Fighting Foreign Illegal Seafood Harvests (FISH) Act of 2023” would combat illegal, unreported, and unregulated fishing by blacklisting offending vessels and vessel owners from U.S. ports and waters and directing the U.S. Coast Guard to increase its at-sea inspection of foreign vessels. The bill was introduced by Senator Dan Sullivan and has been referred to the Senate Committee on Commerce, Science, and Transportation.

House Resolution 2939, the “Pigs in Gestation Stalls (PIGS) Act of 2023” would amend the federal Animal Welfare Act to permanently ban the intensive confinement of pregnant sows and require each pig to have at least twenty-four square feet of space. The bill also would direct the Secretary of Agriculture to direct the National Pork Board to set aside not less than $10,000,000 of the funds collected from assessments to financially assist pig producers in complying with the requirements in each of the first two years after enactment. Representative Veronica Escobar introduced the bill, which has been endorsed by more than sixty animal welfare, environmental, and farming groups and has been assigned to the House Committee on Agriculture.

Senate Bill 1289, the “Food Labeling Modernization Act of 2023” would amend the Food, Drug, and Cosmetic Act to strengthen requirements related to nutrient information on food labels by updating front-of-package food labeling requirements, requiring updates to the ingredient list on packaged foods, and applying consumer friendly labeling requirements. Among the bill’s specific requirements is a labeling requirement limiting use of the term “yogurt” on the “principal display panel” to products in which “the first ingredient is cultured milk, cultured cream, cultured partially skimmed milk, or cultured skim milk.” The bill was introduced by Senator Richard Blumenthal and has been referred to the Senate Committee on Health, Education, Labor, and Pensions.

House Resolution 2881 would require the U.S. Department of Agriculture’s Animal and Plant Health Inspection Service, in conjunction with the Department of Homeland Security, the Department of the Interior, and the State of Hawaii, to conduct preclearance quarantine inspections for all movement to or from Hawaii by either domestic or international travel to detect “high-risk invasive species and agricultural materials.” The bill was introduced by Representative Ed Case and has been referred to the House Agriculture Committee.

House Resolution 358 would commemorate the fiftieth anniversary of the National Wild Turkey Federation by recognizing its contributions to wildlife management, research, habitat conservation, hunting, and “hunter recruitment, retention, and reactivation efforts.” The resolution, which does not require bicameral support or presidential signature, was introduced by Representative Austin Scott and has been referred to the House Committee on Natural Resources.

Minnesota House File 3300 would establish an Office of Animal Protection in the Department of Public Safety and provide training for agents to specialize in investigating animal cruelty crimes to more effectively investigate, prosecute, and prevent animal cruelty crimes. The bill also would require that the Office of the Attorney General hire an attorney with “knowledge of animal law” to serve as assistant attorney general “assigned to the Office of Animal Protection to provide expertise in animal law.” The bill has been referred to the Committee on Public Safety Finance and Policy.

New York Senate Bill 6583 would amend the state’s real property laws to prohibit the acquisition of a controlling interest in agricultural land by foreign adversaries, as defined by the U.S. Secretary of Commerce, in the State of New York. The bill has been referred to the Senate Committee on the Judiciary.

Pennsylvania House Bill 1114 would prohibit the transportation of a “performance animal,” through the state for purposes of  circuses or other traveling animal acts. “Performance animal” is defined to include bears, big cats, elephants, zebras, giraffes, kangaroos, nonhuman primates, tapirs, sharks, seals, sea lions, rhinoceroses, and hippopotami––effectively banning circuses with animals from entering the state. The bill has been referred to the House Committee on Agriculture and Rural Affairs.

Rhode Island House Bill 6359 would allocate funding to support marine mammal rescue and rehabilitation programs for marine mammals who become stranded in the waters of the State of Rhode Island. The bill has been referred to the House Finance Committee.

The U.S. Court of Appeals for the Fifth Circuit reversed a lower court ruling that Louisiana’s “Truth in Labeling of Food Products Act” infringes on food companies’ free speech rights and vacated an injunction of the law. The appellate panel concluded that the law, when construed narrowly, does not violate the First Amendment’s protection of commercial free speech. Turtle Island Foods, S.P.C., doing business as Tofurky Co., challenged the 2019 law, which prohibits “[r]epresenting a food product as meat or a meat product when the food product is not derived” from animals.

The U.S. District Court for the Western District of Washington issued an order that likely will prevent summer and winter commercial Chinook salmon troll fishing in southeast Alaska. U.S. District Judge Richard Jones’s order vacated part of the National Marine Fisheries Service’s (NMFS) 2019 biological opinion, which allows Alaska to open fisheries without violating the Endangered Species Act. Previously, in August of 2022, Judge Jones adopted a report finding that NMFS violated federal law when it approved commercial fishing that put endangered Southern Resident killer whales in peril. The latest decision effectively shuts down the fisheries, pending approval of a new biological opinion.

The Kroger Co. is facing a putative class action in the U.S. District Court for the Central District of Illinois in connection with the grocery company’s eggs labeled as “Positive Farm Fresh,” “Farm Fresh,” and “Grade A,” which, lead plaintiff Larry Long alleges, mislead customers into believing that the eggs come from cage-free hens. The lawsuit comes only weeks after Michigan Attorney General Dana Nessel directed correspondence to Kroger urging the grocer “to add clear signage to your stores to help consumers understand which eggs, exactly, came from caged chickens.” Plaintiff is seeking class certification, class-wide injunctive relief, damages, and costs for Kroger’s alleged violations of consumer protection laws in multiple states.

The Center for Biological Diversity (CBD) sued the U.S. Fish and Wildlife Service (FWS) in the U.S. District Court for the District of Arizona, challenging the agency’s alleged failure to protect endangered species from harm caused by pesticides used in habitats that are critical to their survival. The lawsuit alleges “unreasonable delay” in FWS’ failure to respond to CBD’s petition for rulemaking on this issue, which was submitted more than four years ago.

The United States Supreme Court upheld California’s Proposition 12 that bans the sale of animal products produced using intensive confinement practices such as gestation crates, battery cages, and veal crates. Justice Neil Gorsuch authored the majority decision, rejecting the dormant commerce clause argument advanced by the National Pork Producers Council, the American Farm Bureau, and their amici, stating, “While the Constitution addresses many weighty issues, the type of pork chops California merchants may sell is not on that list.” All of the Justices unanimously rejected the pork industry’s claim that Prop 12’s ban on the sale of such products is unconstitutional merely because it has indirect effects on out-of-state producers. Justice Gorsuch was joined further by Justices Elena Kagan, Sonia Sotomayor, Clarence Thomas, and Amy Coney Barrett in voting 5-4 to reject the industry’s secondary claim that the benefits of Prop 12 are outweighed by the negative effects on commerce. Chief Justice John Roberts, joined by Justices Samuel Alito, Brett Kavanaugh, and Ketanji Brown Jackson dissented on that secondary point, arguing that the 9th Circuit had misapplied existing Pike jurisprudence, and that the case therefore should have been remanded for a determination of whether the law imposes an impermissible burden on out-of-state entities. 

The Washington Supreme Court declined to review an appellate court finding that potentially freed StarKist Co. from liability for the actions of its co-conspirators in a decades-long packaged tuna price-fixing scheme. The court’s decision allows a Washington appeals court panel’s January ruling to stand. The appellate court reversed a Seattle state court order that previously found StarKist was jointly and severally liable for harm caused by its co-conspirators, Bumble Bee and Chicken of the Sea.

The U.S. Department of Agriculture’s Animal and Plant Health Inspection Service (APHIS) released its Strategic Plan for Fiscal Years 2023-2027 (Strategic Plan). The plan includes a number of goals, including reduction of the impacts of zoonotic diseases; expansion of the trade in agricultural products nationally and internationally; and promotion of animal welfare by updating and enhancing Animal Welfare Act (AWA) regulations. The proposed updates to the AWA regulations include moving “more quickly to confiscate animals at extreme risk,” improving AWA inspections by five percent over fiscal year 2022, and eliminating horse soring. APHIS released the Strategic Plan alongside a report on projected trends that will impact the agency over the next 20-30 years. The report notes shifting attitudes and values concerning health and animal welfare, including a growing number who believe that “livestock and wildlife should be provided the same rights as domesticated pets” which will likely trigger pressure on APHIS to “prioritize the use of humane animal agricultural practices” and, “as the list of animals considered pets expands, farms may be subject to AWA regulation.”

Secretary of Agriculture Tom Vilsack sent a letter to members of the meat and poultry industry regarding use of child labor in meat processing facilities and requested that the industries take precautionary steps to determine whether child labor is being used anywhere in the supply chain, include strong contractual language authorizing unannounced inspections and sanctions, and to adopt standards for suppliers, subcontractors, and vendors that will “better guard against the use of illegal child labor.” The letter also advises recipients that the U.S. Department of Agriculture will implement “increased oversight to curb this recent trend as quickly as possible.”

Animal Partisan sent a complaint to the Washington, D.C. Department of Licensing and Consumer Protection, urging the agency to investigate American Humane for alleged illegal deceptive trade practices in connection with statements that American Humane has published online promoting the “humane” treatment of chickens by Foster Farms. Animal Partisan is urging the agency to impose the maximum allowable civil penalties and order American Humane to remove certain challenged statements from its website.

The Food and Drug Administration (FDA) is reopening the comment period for the draft guidance entitled “Labeling of Plant-Based Milk Alternatives and Voluntary Nutrient Statements; Guidance for Industry” in response to requests for an extension to allow interested persons additional time to submit comments. The FDA will now accept public comments through July 31, 2023.

The U.S. Department of Agriculture’s Animal and Plant Health Inspection Service (APHIS) announced its intention to request a revision to, and extension of approval of, an information collection associated with National Veterinary Services Laboratories diagnostic support for the bovine spongiform encephalopathy surveillance program. APHIS will accept public comments on the information collection through June 30, 2023.

The U.S. Fish and Wildlife Service (FWS) is reopening the public comment period on its October 9, 2018, proposed rule to list the black-capped petrel as a threatened species under the Endangered Species Act. Since the original Federal Register notice, FWS has identified “new or updated information …[that] indicates the magnitude of threats is likely greater than [FWS] had previously assessed.” FWS will accept public comments through June 1, 2023.

The National Marine Fisheries Service proposed to revise Antarctic Marine Living Resources Convention Act regulations by enhancing the conditions that Chilean sea bass importers must meet to bring the deep-water fish to the U.S. and specifying when the agency would deny certain import and export documents. NMFS will accept public comments on the proposed regulatory changes through June 5, 2023.

The U.S. Department of Agriculture’s Food Safety and Inspection Service (FSIS) announced the availability of a guidance document for small and very small meat and poultry establishments manufacturing ready-to-eat, shelf-stable, fermented, salt-cured, and dried meat and poultry products, that do not use cooking as the primary lethality step to kill bacteria. FSIS will accept public comments through July 5, 2023.

A new report, “External costs of animal sourced foods in the EU,” examines the “external costs to human health, the environment, low animal welfare and human livelihood brought about by producing and consuming animal sourced food.” The report, commissioned by Eurogroup for Animals, was intended to provide the European Commission with insights and recommendations regarding the European food system. The findings demonstrate that a wide-scale shift to a flexitarian diet in the EU, with less consumption of red and white meat, would reduce external costs related to animal sourced food consumption by over 70%. 

Between April 29, 2023, and May 6, 2023, seven horses died at Churchill Downs in the leadup to the iconic Kentucky Derby. Four horses were euthanized after sustaining track injuries, one was euthanized after suffering a broken neck caused by repeated flipping that his trainer attributes to lights in a nearby DJ booth, and two additional horses died under “mysterious circumstances,” prompting the indefinite suspension of their trainer. The deaths are being investigated by the Kentucky Horseracing Commission and the Horseracing Integrity and Safety Authority.