H.R. 5399, the “Humane Cosmetics Act of 2023,” would prohibit cosmetic testing on animals in the United States. It also would make it unlawful to “knowingly sell, offer for sale, or transport in interstate commerce . . . any cosmetic product that was developed or manufactured using cosmetic animal testing” conducted after the provision is effective, which would be one year after its enactment. The bill lists four exemptions, including cosmetic animal testing conducted outside the U.S. that is required by foreign regulatory authorities. The bill was introduced by Representative Don Beyer and four original cosponsors and has been referred to the House Committee on Energy and Commerce.
Issue 207
This Week's Spotlights
Legislative Spotlights
Humane Cosmetics Act Would Ban Cosmetic Animal Testing and Sales of Cosmetics Tested on Animals
Bill Would Authorize FDA to Conduct Microbial Sampling at CAFOs
S. 2782, the “Expanded Food Safety Investigation Act of 2023,” would authorize the Food and Drug Administration to enter concentrated animal feeding operations and conduct microbial sampling to investigate foodborne illness outbreaks. The bill was introduced by Senators Cory Booker and Richard Blumenthal and has been referred to the Senate Committee on Health, Education, Labor, and Pensions. The companion bill in the House is H.R. 4110.
S. 2782, the “Expanded Food Safety Investigation Act of 2023,” would authorize the Food and Drug Administration to enter concentrated animal feeding operations and conduct microbial sampling to investigate foodborne illness outbreaks. The bill was introduced by Senators Cory Booker and Richard Blumenthal and has been referred to the Senate Committee on Health, Education, Labor, and Pensions. The companion bill in the House is H.R. 4110.
Case Law Spotlights
Turtle Island Foods Challenges Texas Plant-Based and Cultivated Meat Product Labeling Restrictions
Turtle Island Foods SPC, the maker of Tofurky plant-based meat products, filed a lawsuit in the U.S. District Court for the Western District of Texas challenging a new state law that imposes restrictions on terminology used on plant-based and cultivated meat product labels. Turtle Island Foods brings its challenge under the U.S. Constitution’s First Amendment, dormant Commerce Clause, Due Process Clause, and Supremacy Clause. The company claims that the Texas law imposes “an unreasonably burdensome and protectionist trade barrier that contravenes and is preempted by federal law and imposes vague standards” on plant-based producers, as well as “vague and unnecessary restrictions” on cultivated meat labeling. Turtle Island Foods is seeking declaratory judgment and permanent injunctive relief.
Turtle Island Foods SPC, the maker of Tofurky plant-based meat products, filed a lawsuit in the U.S. District Court for the Western District of Texas challenging a new state law that imposes restrictions on terminology used on plant-based and cultivated meat product labels. Turtle Island Foods brings its challenge under the U.S. Constitution’s First Amendment, dormant Commerce Clause, Due Process Clause, and Supremacy Clause. The company claims that the Texas law imposes “an unreasonably burdensome and protectionist trade barrier that contravenes and is preempted by federal law and imposes vague standards” on plant-based producers, as well as “vague and unnecessary restrictions” on cultivated meat labeling. Turtle Island Foods is seeking declaratory judgment and permanent injunctive relief.
Environmental Groups Petition Ninth Circuit for Review of EPA’s Refusal to Revise Clean Water Act Regulations for CAFOs
A coalition of 13 environmental groups, including Food & Water Watch, Center for Biological Diversity, and North Carolina Environmental Justice Network, is challenging the Environmental Protection Agency’s (EPA) denial of a 2017 petition for rulemaking urging EPA to revise Clean Water Act regulations for concentrated animal feeding operations. Plaintiffs are represented by Food & Water Watch and the Earthrise Law Center at Lewis & Clark Law School. The petition for review is pending in the U.S. Court of Appeals for the Ninth Circuit.
A coalition of 13 environmental groups, including Food & Water Watch, Center for Biological Diversity, and North Carolina Environmental Justice Network, is challenging the Environmental Protection Agency’s (EPA) denial of a 2017 petition for rulemaking urging EPA to revise Clean Water Act regulations for concentrated animal feeding operations. Plaintiffs are represented by Food & Water Watch and the Earthrise Law Center at Lewis & Clark Law School. The petition for review is pending in the U.S. Court of Appeals for the Ninth Circuit.
Conservation Groups and EPA Reach Historic Settlement Concluding More than Ten Years of Litigation Over Pesticide Impacts on Endangered Species
The U.S. District Court for the Northern District of California approved a settlement agreement between two plaintiff organizations—the Center for Biological Diversity and Pesticide Action Network North America—and the Environmental Protection Agency (EPA). The agreement resolves sweeping Endangered Species Act litigation and covers 35 active ingredients in pesticides. It requires EPA to complete Biological Evaluations of the effects on threatened and endangered species and designated critical habitat. It also requires EPA to issue mitigation strategies for herbicide ingredients by 2024 and organophosphate insecticide ingredients by 2025. In the agreement, EPA states that it expects to issue mitigation strategies for rodenticide ingredients by 2024 and intends to develop mitigation strategies for fungicide ingredients. Further, under the agreement, EPA will expand its Vulnerable Species Pilot program and develop compensatory mitigation options.
The U.S. District Court for the Northern District of California approved a settlement agreement between two plaintiff organizations—the Center for Biological Diversity and Pesticide Action Network North America—and the Environmental Protection Agency (EPA). The agreement resolves sweeping Endangered Species Act litigation and covers 35 active ingredients in pesticides. It requires EPA to complete Biological Evaluations of the effects on threatened and endangered species and designated critical habitat. It also requires EPA to issue mitigation strategies for herbicide ingredients by 2024 and organophosphate insecticide ingredients by 2025. In the agreement, EPA states that it expects to issue mitigation strategies for rodenticide ingredients by 2024 and intends to develop mitigation strategies for fungicide ingredients. Further, under the agreement, EPA will expand its Vulnerable Species Pilot program and develop compensatory mitigation options.
Agency Spotlights
Labor Department Seeks to Strengthen Protections for Temporary Agricultural Workers
The Department of Labor (DOL) published a notice of proposed rulemaking to strengthen protections for temporary agricultural workers and improve DOL’s monitoring and enforcement capabilities. DOL will accept public comments on the proposed rule through November 14, 2023.
The Department of Labor (DOL) published a notice of proposed rulemaking to strengthen protections for temporary agricultural workers and improve DOL’s monitoring and enforcement capabilities. DOL will accept public comments on the proposed rule through November 14, 2023.
Legislative Updates
Pending Federal Actions
Humane Cosmetics Act Would Ban Cosmetic Animal Testing and Sales of Cosmetics Tested on Animals
H.R. 5399, the “Humane Cosmetics Act of 2023,” would prohibit cosmetic testing on animals in the United States. It also would make it unlawful to “knowingly sell, offer for sale, or transport in interstate commerce . . . any cosmetic product that was developed or manufactured using cosmetic animal testing” conducted after the provision is effective, which would be one year after its enactment. The bill lists four exemptions, including cosmetic animal testing conducted outside the U.S. that is required by foreign regulatory authorities. The bill was introduced by Representative Don Beyer and four original cosponsors and has been referred to the House Committee on Energy and Commerce.
H.R. 5399, the “Humane Cosmetics Act of 2023,” would prohibit cosmetic testing on animals in the United States. It also would make it unlawful to “knowingly sell, offer for sale, or transport in interstate commerce . . . any cosmetic product that was developed or manufactured using cosmetic animal testing” conducted after the provision is effective, which would be one year after its enactment. The bill lists four exemptions, including cosmetic animal testing conducted outside the U.S. that is required by foreign regulatory authorities. The bill was introduced by Representative Don Beyer and four original cosponsors and has been referred to the House Committee on Energy and Commerce.
Bill Would Support Independent Small Meat Processors and Create a Digital Livestock Exchange Platform
S. 2792, the “Strengthening Local Meat Economies Act,” would support independent small meat and poultry processors by requiring the U.S. Department of Agriculture to procure a minimum amount of products from them. It also would develop a digital livestock exchange platform. The bill was introduced by Senator John Fetterman and has been referred to the Senate Committee on Agriculture, Nutrition, and Forestry.
S. 2792, the “Strengthening Local Meat Economies Act,” would support independent small meat and poultry processors by requiring the U.S. Department of Agriculture to procure a minimum amount of products from them. It also would develop a digital livestock exchange platform. The bill was introduced by Senator John Fetterman and has been referred to the Senate Committee on Agriculture, Nutrition, and Forestry.
Bill Would Authorize FDA to Conduct Microbial Sampling at CAFOs
S. 2782, the “Expanded Food Safety Investigation Act of 2023,” would authorize the Food and Drug Administration to enter concentrated animal feeding operations and conduct microbial sampling to investigate foodborne illness outbreaks. The bill was introduced by Senators Cory Booker and Richard Blumenthal and has been referred to the Senate Committee on Health, Education, Labor, and Pensions. The companion bill in the House is H.R. 4110.
S. 2782, the “Expanded Food Safety Investigation Act of 2023,” would authorize the Food and Drug Administration to enter concentrated animal feeding operations and conduct microbial sampling to investigate foodborne illness outbreaks. The bill was introduced by Senators Cory Booker and Richard Blumenthal and has been referred to the Senate Committee on Health, Education, Labor, and Pensions. The companion bill in the House is H.R. 4110.
Bill Aims to Prevent Monopolies in the Animal Agriculture Industry
S. 2818, the “Strengthening Antitrust Enforcement for Meatpacking Act of 2023,” would amend the Packers and Stockyards Act to prohibit certain acquisitions in the meatpacking and poultry industries that would create monopolies. The bill was introduced by Senator Josh Hawley and referred to the Senate Judiciary Committee.
S. 2818, the “Strengthening Antitrust Enforcement for Meatpacking Act of 2023,” would amend the Packers and Stockyards Act to prohibit certain acquisitions in the meatpacking and poultry industries that would create monopolies. The bill was introduced by Senator Josh Hawley and referred to the Senate Judiciary Committee.
Enacted State Legislation
Oregon Funds State Meat Inspection Program and Aid for Meat Processors and Sellers
Oregon Governor Tina Kotek signed House Bill 3410, which appropriates $9 million to the Oregon Department of Agriculture to support the State’s Meat Inspection Program and aid establishments that process and sell meat products in Oregon over the next two years.
Oregon Governor Tina Kotek signed House Bill 3410, which appropriates $9 million to the Oregon Department of Agriculture to support the State’s Meat Inspection Program and aid establishments that process and sell meat products in Oregon over the next two years.
Case Law Updates
Federal Court Updates
Six Indicted for Illegally Capturing and Selling Protected Songbirds in Violation of the Migratory Bird Treaty Act and Lacey Act
Six Houston residents have been indicted for federal crimes under the Migratory Bird Treaty Act and Lacey Act in connection with an alleged scheme involving the trapping and selling of federally protected songbirds. The types of songbirds captured often are used in singing competitions involving gambling, but usually die quickly in captivity. A joint investigation by the U.S. Fish & Wildlife Service and the Texas Parks and Wildlife Department resulted in the seizure of more than 300 illegally captured birds. Each defendant faces up to seven years in federal prison and fines of up to $250,000.
Six Houston residents have been indicted for federal crimes under the Migratory Bird Treaty Act and Lacey Act in connection with an alleged scheme involving the trapping and selling of federally protected songbirds. The types of songbirds captured often are used in singing competitions involving gambling, but usually die quickly in captivity. A joint investigation by the U.S. Fish & Wildlife Service and the Texas Parks and Wildlife Department resulted in the seizure of more than 300 illegally captured birds. Each defendant faces up to seven years in federal prison and fines of up to $250,000.
Turtle Island Foods Challenges Texas Plant-Based and Cultivated Meat Product Labeling Restrictions
Turtle Island Foods SPC, the maker of Tofurky plant-based meat products, filed a lawsuit in the U.S. District Court for the Western District of Texas challenging a new state law that imposes restrictions on terminology used on plant-based and cultivated meat product labels. Turtle Island Foods brings its challenge under the U.S. Constitution’s First Amendment, dormant Commerce Clause, Due Process Clause, and Supremacy Clause. The company claims that the Texas law imposes “an unreasonably burdensome and protectionist trade barrier that contravenes and is preempted by federal law and imposes vague standards” on plant-based producers, as well as “vague and unnecessary restrictions” on cultivated meat labeling. Turtle Island Foods is seeking declaratory judgment and permanent injunctive relief.
Turtle Island Foods SPC, the maker of Tofurky plant-based meat products, filed a lawsuit in the U.S. District Court for the Western District of Texas challenging a new state law that imposes restrictions on terminology used on plant-based and cultivated meat product labels. Turtle Island Foods brings its challenge under the U.S. Constitution’s First Amendment, dormant Commerce Clause, Due Process Clause, and Supremacy Clause. The company claims that the Texas law imposes “an unreasonably burdensome and protectionist trade barrier that contravenes and is preempted by federal law and imposes vague standards” on plant-based producers, as well as “vague and unnecessary restrictions” on cultivated meat labeling. Turtle Island Foods is seeking declaratory judgment and permanent injunctive relief.
Environmental Groups Petition Ninth Circuit for Review of EPA’s Refusal to Revise Clean Water Act Regulations for CAFOs
A coalition of 13 environmental groups, including Food & Water Watch, Center for Biological Diversity, and North Carolina Environmental Justice Network, is challenging the Environmental Protection Agency’s (EPA) denial of a 2017 petition for rulemaking urging EPA to revise Clean Water Act regulations for concentrated animal feeding operations. Plaintiffs are represented by Food & Water Watch and the Earthrise Law Center at Lewis & Clark Law School. The petition for review is pending in the U.S. Court of Appeals for the Ninth Circuit.
A coalition of 13 environmental groups, including Food & Water Watch, Center for Biological Diversity, and North Carolina Environmental Justice Network, is challenging the Environmental Protection Agency’s (EPA) denial of a 2017 petition for rulemaking urging EPA to revise Clean Water Act regulations for concentrated animal feeding operations. Plaintiffs are represented by Food & Water Watch and the Earthrise Law Center at Lewis & Clark Law School. The petition for review is pending in the U.S. Court of Appeals for the Ninth Circuit.
Maryland Waterfowl Outfitters Sentenced for 36 Hunting and Licensing Violations
The owners of a Maryland waterfowl hunting guide company, Josh and Kellie Neuwiller, were sentenced in the U.S. District Court for the District of Maryland for outfitting and guiding hunts without a license in 36 separate violations. Kellie Neuwiller was fined $250 and sentenced to one year probation, during which time she is prohibited from hunting, guiding, or outfitting. Josh Neuwiller was sentenced to 90 days in prison for operating without a license and for violating the terms of his federal probation imposed following a prior Migratory Bird Treaty Act conviction.
The owners of a Maryland waterfowl hunting guide company, Josh and Kellie Neuwiller, were sentenced in the U.S. District Court for the District of Maryland for outfitting and guiding hunts without a license in 36 separate violations. Kellie Neuwiller was fined $250 and sentenced to one year probation, during which time she is prohibited from hunting, guiding, or outfitting. Josh Neuwiller was sentenced to 90 days in prison for operating without a license and for violating the terms of his federal probation imposed following a prior Migratory Bird Treaty Act conviction.
Conservation Groups and EPA Reach Historic Settlement Concluding More than Ten Years of Litigation Over Pesticide Impacts on Endangered Species
The U.S. District Court for the Northern District of California approved a settlement agreement between two plaintiff organizations—the Center for Biological Diversity and Pesticide Action Network North America—and the Environmental Protection Agency (EPA). The agreement resolves sweeping Endangered Species Act litigation and covers 35 active ingredients in pesticides. It requires EPA to complete Biological Evaluations of the effects on threatened and endangered species and designated critical habitat. It also requires EPA to issue mitigation strategies for herbicide ingredients by 2024 and organophosphate insecticide ingredients by 2025. In the agreement, EPA states that it expects to issue mitigation strategies for rodenticide ingredients by 2024 and intends to develop mitigation strategies for fungicide ingredients. Further, under the agreement, EPA will expand its Vulnerable Species Pilot program and develop compensatory mitigation options.
The U.S. District Court for the Northern District of California approved a settlement agreement between two plaintiff organizations—the Center for Biological Diversity and Pesticide Action Network North America—and the Environmental Protection Agency (EPA). The agreement resolves sweeping Endangered Species Act litigation and covers 35 active ingredients in pesticides. It requires EPA to complete Biological Evaluations of the effects on threatened and endangered species and designated critical habitat. It also requires EPA to issue mitigation strategies for herbicide ingredients by 2024 and organophosphate insecticide ingredients by 2025. In the agreement, EPA states that it expects to issue mitigation strategies for rodenticide ingredients by 2024 and intends to develop mitigation strategies for fungicide ingredients. Further, under the agreement, EPA will expand its Vulnerable Species Pilot program and develop compensatory mitigation options.
Advocacy Groups Allege BLM is Harming Endangered Species by Failing to Prioritize and Schedule Required Environmental Analyses of Livestock Grazing on Public Lands
Western Watersheds Project and Public Employees for Environmental Responsibility sued the U.S. Bureau of Land Management (BLM) in the U.S. District Court for the District of Columbia. The organizations allege BLM has not met its obligation under the Federal Land Policy and Management Act to determine the prioritization and timing of National Environmental Policy Act analyses of the environmental impact of livestock grazing on public lands and threatened and endangered species. They claim BLM has unlawfully used a congressionally created loophole to evade environmental reviews for certain grazing allotments in violation of the Administrative Procedure Act. The organizations seek declaratory judgment and injunctive relief.
Western Watersheds Project and Public Employees for Environmental Responsibility sued the U.S. Bureau of Land Management (BLM) in the U.S. District Court for the District of Columbia. The organizations allege BLM has not met its obligation under the Federal Land Policy and Management Act to determine the prioritization and timing of National Environmental Policy Act analyses of the environmental impact of livestock grazing on public lands and threatened and endangered species. They claim BLM has unlawfully used a congressionally created loophole to evade environmental reviews for certain grazing allotments in violation of the Administrative Procedure Act. The organizations seek declaratory judgment and injunctive relief.
State Court Updates
Conservation Groups Invoke Public Trust Doctrine to Challenge Utah’s Failure to Protect the Great Salt Lake
Utah Physicians for a Healthy Environment, American Bird Conservancy, Center for Biological Diversity, Sierra Club, and Utah Rivers Council sued the State of Utah in state court. The organizations allege Utah is failing to review and modify excessive water diversions that deplete and threaten the viability of the Great Salt Lake and violating the public trust by not ensuring sufficient water flows into the lake, jeopardizing many species that depend upon it. The plaintiffs are seeking declaratory judgment and injunctive relief.
Utah Physicians for a Healthy Environment, American Bird Conservancy, Center for Biological Diversity, Sierra Club, and Utah Rivers Council sued the State of Utah in state court. The organizations allege Utah is failing to review and modify excessive water diversions that deplete and threaten the viability of the Great Salt Lake and violating the public trust by not ensuring sufficient water flows into the lake, jeopardizing many species that depend upon it. The plaintiffs are seeking declaratory judgment and injunctive relief.
Agency Updates
ESA Listing Status and Critical Habitat Proposed for Arizona Springsnail Species
The U.S. Fish & Wildlife Service (FWS) is proposing to list the Quitobaquito tryonia, a springsnail found in Arizona, as an endangered species and designate critical habitat. FWS is accepting public comments on the proposed listing status through November 13, 2023.
The U.S. Fish & Wildlife Service (FWS) is proposing to list the Quitobaquito tryonia, a springsnail found in Arizona, as an endangered species and designate critical habitat. FWS is accepting public comments on the proposed listing status through November 13, 2023.
NMFS Seeks Public Comments on Proposed Classification of Commercial Fisheries
The National Marine Fisheries Service published its proposed List of Fisheries (LOF) for 2024. The LOF classifies commercial fisheries based on the documented harm to marine mammals in each fishery, as required by the Marine Mammal Protection Act (MMPA). NMFS is accepting public comments on its proposed LOF for 2024 and associated fishery classifications, which trigger certain MMPA requirements, through October 13, 2023.
The National Marine Fisheries Service published its proposed List of Fisheries (LOF) for 2024. The LOF classifies commercial fisheries based on the documented harm to marine mammals in each fishery, as required by the Marine Mammal Protection Act (MMPA). NMFS is accepting public comments on its proposed LOF for 2024 and associated fishery classifications, which trigger certain MMPA requirements, through October 13, 2023.
APHIS Finalizes Changes to Equine Import Regulations
The U.S. Department of Agriculture’s Animal and Plant Health Inspection Service (APHIS) finalized regulations related to the import of equines under the Animal Health Protection Act. The final rule amends requirements related to the transit of horses through certain regions and adds requirements for horse health certifications and shipping containers used for horse transport, along with other changes. The final rule is effective October 16, 2023.
The U.S. Department of Agriculture’s Animal and Plant Health Inspection Service (APHIS) finalized regulations related to the import of equines under the Animal Health Protection Act. The final rule amends requirements related to the transit of horses through certain regions and adds requirements for horse health certifications and shipping containers used for horse transport, along with other changes. The final rule is effective October 16, 2023.
NMFS Announces MMPA Incidental Harassment Authorization in Connection with Ferry Berth Construction Project in Ketchikan
The National Marine Fisheries Service announced that it issued an incidental harassment authorization to the Alaska Department of Transportation and Public Facilities for the incidental harassment of marine mammals related to a ferry berth construction project in Ketchikan, Alaska. The authorization is effective from September 11, 2023, through September 10, 2024.
The National Marine Fisheries Service announced that it issued an incidental harassment authorization to the Alaska Department of Transportation and Public Facilities for the incidental harassment of marine mammals related to a ferry berth construction project in Ketchikan, Alaska. The authorization is effective from September 11, 2023, through September 10, 2024.
Labor Department Seeks to Strengthen Protections for Temporary Agricultural Workers
The Department of Labor (DOL) published a notice of proposed rulemaking to strengthen protections for temporary agricultural workers and improve DOL’s monitoring and enforcement capabilities. DOL will accept public comments on the proposed rule through November 14, 2023.
The Department of Labor (DOL) published a notice of proposed rulemaking to strengthen protections for temporary agricultural workers and improve DOL’s monitoring and enforcement capabilities. DOL will accept public comments on the proposed rule through November 14, 2023.
Texas Foundation Seeks ESA Permit for Ocelot Reintroduction Project
The U.S. Fish & Wildlife Service (FWS) announced its receipt of an Endangered Species Act enhancement of survival permit application. The applicant, East Foundation, one of the largest ranch holdings in Texas, seeks to reintroduce ocelots and conduct related monitoring, habitat management, and research activities in South Texas. FWS is accepting public comments on the application through October 16, 2023.
The U.S. Fish & Wildlife Service (FWS) announced its receipt of an Endangered Species Act enhancement of survival permit application. The applicant, East Foundation, one of the largest ranch holdings in Texas, seeks to reintroduce ocelots and conduct related monitoring, habitat management, and research activities in South Texas. FWS is accepting public comments on the application through October 16, 2023.
International Updates
Population of Big Cats in Brazil’s Northeast Declining Due to Wind Farm Construction
Recent reporting suggests that jaguars and cougars are facing extinction in Brazil’s northeastern shrublands due to wind farm construction. The construction reportedly is driving the region’s big cats, who are uniquely adapted to cope with extreme heat, away from water sources and their lairs. The big cat population in Jaguar’s Ravine, a protected area that is the primary habitat in the region for the animals, has fallen to an estimated 30 jaguars and 160 cougars. Regionally, jaguars have declined by 40% and cougars by 20% since 2009.
Recent reporting suggests that jaguars and cougars are facing extinction in Brazil’s northeastern shrublands due to wind farm construction. The construction reportedly is driving the region’s big cats, who are uniquely adapted to cope with extreme heat, away from water sources and their lairs. The big cat population in Jaguar’s Ravine, a protected area that is the primary habitat in the region for the animals, has fallen to an estimated 30 jaguars and 160 cougars. Regionally, jaguars have declined by 40% and cougars by 20% since 2009.