New Jersey bills S3551 and A5040 would require a vaccination schedule that is inconsistent with veterinary recommendations.

For example, the bills would require that “if the animal is a dog, [it] has received its first parvo and distemper vaccines and at least one booster, and the dog’s rabies inoculations are up to date.”

According to the American Animal Hospital Association (AAHA), and consistent with existing state laws “A single dose of rabies vaccine [should be administered] NOT EARLIER THAN 3 MO OF AGE.”  Earlier vaccination may be ineffective because of maternal immunity passed to the puppies.

AAHA also recommends vaccination against parvovirus and distemper virus beginning as early as 6 weeks of age, but booster shots should be administered at an interval of 2 to 4 wk until at least 16 wk of age.”  The bills would delay placement of an animal by requiring that it receive a booster before sale or adoption.   Since exposure to infectious diseases increases with the time each puppy or dog remains at a shelter or rescue facility, such a delay could increase, not decrease, the risk to animal health.

Rocky’s law would also require behavioral testing and reporting of historical behavioral abnormalities of animals before sale or adoption.  An animal’s behavior is an important factor for an owner  to consider and certainly any history of behavioral abnormalities, including aggression, should be recorded and reported.  Pets are often relinquished to a shelter or another home because of behavioral issues.  Equally important is the prevalence of dog bites in this country as reported by the AVMA.

Dog bites pose a serious health risk to our communities and society. More than 4.5 million people are bitten by dogs each year in the United States, and more than 800,000 receive medical attention for dog bites, according to the U.S. Centers for Disease Control (CDC). At least half of those bitten are children. Here are more dog bite facts:

Almost 1 in 5 people bitten by dogs require medical attention.

Children are by far the most common victims of dog bites and are far more likely to be severely injured.

Most dog bites affecting young children occur during everyday activities and while interacting with familiar dogs.

Senior citizens are the second most common dog bite victims.

Any dog can bite: big or small, male or female, young or old. Even the cuddliest, fuzziest, sweetest pet can bite if provoked. Remember, it is not a dog’s breed that determines whether it will bite, but rather the dog’s individual history and behavior.

There are several resources available for the evaluation of a dog’s temperament.

The American Veterinary Society of Animal Behavior (AVSAB), describes the importance of socialization of puppies by owners:

‘Puppies go through a sensitive period of socialization when they are uniquely prepared to benefit from exposure to social opportunities. From the time the owner adopts the puppy until 3 to 4 months of age, it is critical that the owner get the puppy out to meet other animals and people, and experience many different kinds of environments,’ said [former] AAVSAB president, Dr. E. Kathryn Meyer.

Unsocialized puppies may also fail to develop coping mechanisms and grow up into dogs that are unable to adapt to new situations. This can severely inhibit the dog’s quality of life as well as the owner’s enjoyment of the pet,

The American Kennel Club and the American Temperament Test Society, Inc. also have programs for testing dog behavior.

Once the pet leaves the pet shop, rescue or shelter, any subsequent behavior may have nothing to do with its care at these facilities.  Behavioral abnormalities, including aggression may have resulted from the care (or lack thereof) the animal had received from its owner.  The pet shop, rescue or shelter should not be liable for such subsequent behavior if there was no indication that the pet was predisposed to or had no history of such behavior.

These bills have promise, but require considerable amendments to protect animal health and welfare and the people and business who buy and sell them.

Rocky’s Law, S3551 and its companion A5040, would require the mandatory registration of animal rescue organizations, as opposed to the current laws providing for voluntary registration.  They would also would require all animal rescue organizations, pet shops, shelters and pounds to conduct and provide test results about the animal’s medical status and behavioral history to people purchasing* pets.

The expansion of existing pet shop requirements to animal rescue organizations and shelters is laudable, but some of the proposed requirements are medically unsound as written and others would result in unintended consequences.  Also, some of the requirements for pet shops would still exceed those required for rescues and shelters, even though the potential risks are indistinguishable.  Finally, penalties for behavioral conditions in pets that result in human harm, including death, do not recognize the owner’s responsibility and influence over the pet’s behavioral abnormalities that occur after purchase.  Accordingly, some of the penalties for conditions resulting from the owner’s oversight of the animal and not the sellers are misplaced.

Some of these issues are identified herein—others will be discussed in subsequent blogs.

The bill, if passed, would require an animal rescue organization facility, shelter and pound to “document the health, behavioral, and medical history of an animal prior to offering the animal for adoption.”

However, these requirements exclude animal rescue organizations and instead only apply to animal rescue organization facilities.  While both entities sell pets to owners in the State, only those with a facility in the State would have to comply with the expanded requirements. Since risks from animal rescue organizations meet or exceed those with facilities in the State, the provisions should apply to all.

The bill would also exempt animal rescue organization facilities, shelters and pounds from providing certain information by stating the information should be provided “to the extent possible.”  For example, the bill would require “[t]o the extent possible, an animal rescue organization facility, shelter, or pound shall determine and maintain records of the:

(1) date and place of birth of each animal placed in its care, and the actual or approximate age as established by a veterinarian, or the animal; [there is no reason a veterinarian cannot provide an approximate age, so this should be a requirement]

(2) sex, color markings, and other identifying information of the animal, including any tag, tattoo, collar number, or microchip information; [there is no reason why this information should not be required for every animal sold]

(3) name and address if the veterinarian last attending to the animal before the animal was placed in the animal rescue organization facility, shelter, or pound and any health, behavioral, or medical records that may be available from the veterinarian: [with the increasing incidence of the importation of highly contagious, infectious diseases through animal rescue organizations, this information should be required]

(4) name and address of the veterinarian attending to the animal while the animal is in the custody of the animal rescue organization facility, shelter, or pound, and the dates of the initial and any subsequent examinations of the animal; [there is no reason this information would not be available, and therefore it should always be provided]”

The bills would require a veterinarian to certify that the animal is “free” of parasites, but it would be more reasonable for a veterinarian to certify that she has performed an examination for internal and external parasites, and has treated the animal, if needed, based on the results of that examination.

The American Animal Hospital Association notes that every dog and cat “should receive year-round parasite control to prevent against heartworms, intestinal parasites, fleas, and when appropriate, ticks. Even if your pet spends most of his time indoors, he can still pick up diseases from these sneaky pests that can fly, crawl, or hitchhike on you to get inside your house. These bugs spread serious (even fatal, in the case of heartworms) diseases that are easily preventable with monthly medications.”

Statements requiring a veterinarian to certify that the animal is free from “contagious hair loss” and “does not have feces free of disease, infection, and parasites” should be amended.  For example, feces do not have diseases.  Notably, there can be existing but subclinical infections that would not be evident during a physical examination even if certain testing were performed.

Also, feces contain germs, including bacteria that will be reported if cultured.  As written, a veterinarian may be inclined to prescribe an antibiotic upon receipt of a positive culture, even in the absence of clinical signs of disease.  The presence of bacteria in feces does not necessarily mean that the animal is diseased or infected. Such treatment is inconsistent with federal, state and medical policies to minimize unnecessary treatment with antibiotics that leads to antibiotic resistance. Further, the time required for bacterial and viral testing would unnecessarily delay sale or adoption.

Instead of trying to proscribe how veterinarians should perform examinations and diagnose illness, the sponsors should consider extending the warranty required for pet shops to animal rescue organizations, animal rescue organization facilities, and shelters.

Additional issues  will be addressed in a subsequent blog.

 

 

*Purchasing and purchase should be considered the same as adopting and adoption.

In 2014 and 2015, 26 nuisance lawsuits representing over 500 North Carolina residents were brought against Murphy-Brown, a subsidiary of Smithfield Foods, in North Carolina federal court.  The lawsuits involve 89 hog farms or “CAFOs” (Concentrated Animal Feeding Operations) in Eastern North Carolina.  Although Murphy-Brown owns some of the farms itself, in most instances, Murphy-Brown contracts with independent farm owners.  Under these arrangements, the hog farmers own the farm but Murphy-Brown owns the hogs and sets the operational rules.  The cases were consolidated in 2015 for pre-trial litigation.  The Court created five “Discovery Pool Cases” in which detailed discovery was taken and ordered two test trials, to be followed by monthly trials for the remaining cases.  In 2018, the trials began and four cases reached jury verdicts, all in favor of plaintiffs.

The lawsuits alleged that the odor and flies from the effluent spray process at the hog farms caused a nuisance to the surrounding property owners, and that tractor trailers travelled through the area at night, creating noise and lights that prevented sleep.  None of the lawsuits involved operational processes that broke any state or federal laws.  Three of the test cases, all before the same federal court judge, resulted in substantial jury awards totaling almost $550 million.  North Carolina’s punitive damages cap limiting punitive damages to three times compensatory damages or $250,000, whichever is larger, reduced the jury awards to $97.88 million.  A fourth lawsuit was decided by jury in December 2018 before a different federal judge.  That jury awarded $100,000 total in compensatory damages to all eight plaintiffs, but the judge ruled that plaintiffs failed to produce sufficient evidence of punitive damages.

When the lawsuits were filed, North Carolina had a Right to Farm Act, N.C. Gen. Stat. § 106-701 (2013), limiting the right to bring nuisance suits against agricultural farms.  It read in relevant part:

“When agricultural and forestry operation, etc., not constituted nuisance by changed conditions in or about the locality outside of the operation.

(a)         No agricultural or forestry operation or any of its appurtenances shall be or become a nuisance, private or public, by any changed conditions in or about the locality outside of the operation after the operation has been in operation for                         more than one year, when such operation was not a nuisance at the time the operation began.

(a1)       The provisions of subsection (a) of this section shall not apply when the plaintiff demonstrates that the agricultural or forestry operation has undergone a fundamental change.  A fundamental change to the operation does not include                              any of the following:

(1)  A change in ownership or size.

(2)  An interruption of farming for a period of no more than three years.

(3)  Participation in a government-sponsored agricultural program.

(4)  Employment of new technology.

(5)  A change in the type of agricultural or forestry product produced.  (a2)

The provisions of subsection (a) of this section shall not apply whenever a nuisance results from the negligent or improper operation of any agricultural or forestry operation or its appurtenances.”   106-701 (2013). The Act defines “agricultural operation” as “any facility for the production for commercial purposes of crops, livestock, poultry, livestock products, or poultry product.” § 106-701(b).

Further, in 2017, the legislature added a section that limited compensatory damages to the reduction in the fair market value of the plaintiff’s property caused by the nuisance, not to exceed the fair market value, for permanent nuisances, and to the diminution of the fair rental value of plaintiff’s property for temporary nuisances.  N.C. Gen. Stat. § 106-702(a) (2017).  The statute expressly did not prohibit or limit punitive damages.  § 106-702(d) (2017).

At summary judgment, the Court found that the Right to Farm Act only applies to agricultural operations that become a nuisance due to changed conditions in the locality outside the agricultural operation.  In re NC Swine Farm Nuisance Litigation, 2017 WL 5178038 at *5 (E.D.N.C. Nov. 8, 2017).  Because the plaintiffs had used their properties as residences well before the operations began at the subject hog farms, the Right to Farm Act was inapplicable as a matter of law.  Id. at *6.

In response to the Court’s findings and the large jury awards, North Carolina’s legislature acted swiftly and decisively in amending the statute in June 2018.  The preamble to the amended statute states that “frivolous nuisance lawsuits threaten the very existence of farming in North Carolina” and “following the 1979 enactment, at least three succeeding General Assemblies in 1992, 2013, and 2017 tried to perfect a statutory framework that broadly fosters a cooperative relationship between farms and forestry operations and their neighbors across North Carolina.”  However, “recently a federal trial court incorrectly and narrowly interpreted the North Carolina Right to Farm Act in a way that contradicts the intent of the General Assembly and effectively renders the Act toothless in offering meaningful protection to long-established North Carolina farms and forestry operations.”  It further states that “regrettably, the General Assembly is again forced to make plain its intent that existing farms and forestry operations in North Carolina that are operating in good faith be shielded from nuisance lawsuits long after the operations become established.”  Governor Cooper vetoed the amended statute, and the Senate overrode his veto in a 37-9 vote.  The day after the override, the House voted 74-45 in favor of the bill.  The Right to Farm Act now reads, in pertinent part:

“Right to farm defense; nuisance actions.

(a)         No nuisance action may be filed against an agricultural or forestry operation unless all of the following apply:

(1) The plaintiff is a legal possessor of the real property affected by the conditions alleged to be a nuisance.

(2)  The real property affected by the conditions alleged to be a nuisance is located within one half-mile of the source of the activity or structure alleged to be a nuisance.

(3)  The action is filed within one year of the establishment of the agricultural or forestry operation or within one year of the operation undergoing a fundamental change.”  N.C. Gen. Stat. § 106-701 (2018).

The definition of fundamental change remains the same.  The language regarding changed conditions is eliminated.  It also deleted the language permitting punitive damages, and instead added an express provision prohibiting punitive damages in private nuisance suits except in very limited circumstances:

“A plaintiff may not recover punitive damages for a private nuisance action where the alleged nuisance emanated from an agricultural or forestry operation that has not been subject to a criminal conviction or a civil enforcement action taken by a State or federal environmental regulatory agency pursuant to a notice of violation for the conduct alleged to be the source of the nuisance within the three years prior to the first act on which the nuisance action is based.”  106-702(a1) (2018).

The amended statute is a significant victory for the agricultural industry in North Carolina.  The 2018 amendments substantially limit the availability of punitive damages, change the focus from the surrounding locality to the operation itself by eliminating the changed conditions language, thereby making it more difficult for pre-existing neighbors to bring suit, and removing the exception for nuisances caused by negligence or improper operation.  In combination with the 2017 amendments limiting compensatory damages to fair market value of the harmed property, there is little financial incentive to bring suit.  The likely result is that we will see fewer nuisance lawsuits against the agricultural industry in the future.

These cases are all pending on appeal, and this post may be updated accordingly.

 

Republished with permission.  Originally posted on Feb 20, 2019.

 

Here’s some good news! Supreme Court says constitutional protection against excessive fines applies to state actions:

“For good reason, the protection against excessive fines has been a constant shield throughout Anglo-American history: Exorbitant tolls undermine other constitutional liberties,” Ginsburg wrote. “Excessive fines can be used, for example, to retaliate against or chill the speech of political enemies. . . . Even absent a political motive, fines may be employed in a measure out of accord with the penal goals of retribution and deterrence.”

As a cherry on top, this was a unanimous ruling, too. But how does this relate to animal issues?

For over 30 years we have watched private nonprofit humane societies armed with state police powers seize animals – primarily dogs – under color of law, with very mixed results. There are definitely cases of horrendous neglect and abuse where animals must be removed from their current environment to protect and save their lives.

However, we have also observed animal confiscations that appeared to be little more than media events designed to provide a poster child opportunity for a humane society’s current legislative or fundraising campaign. We have seen seized animals that were portrayed by the shelter as being at death’s door when seized but made available for adoption within days of confiscation.

Decades ago, when dog overpopulation was still a problem in most parts of the country, the primary role of humane societies was to house and rehabilitate stray, neglected, owner relinquished and abused animals, and rehome them. But in the modern era, many shelters serve primarily as a major source of pets in their communities, often importing animals from different states and even foreign countries to maintain a steady supply of adoptable dogs. Confiscating pets in this environment is highly questionable and creates the perception of a serious conflict of interest. In addition, NAIA believes that nonprofit organizations should never be granted police powers, and that animal confiscations should only be carried out by duly appointed law enforcement personnel operating under proper legal justification, not by employees of a private nonprofit operating under the mission statement of their organization.

Three cheers for the Supremes and this decision. This applies to seizure of property that is used in engaging in criminal activity and, since dogs and other animals are defined as property, we expect that state legislatures will address their laws to align with this Supreme Court decision.

 

HB 688, introduced on January 3, 2019, would

I. Makes changes to the definition of pet vendor and defines hobby breeder.

II. Establishes the companion animal welfare division in the department of agriculture, markets, and food.

III.  Establishes the animal transfer database in the department of agriculture, markets, and food.

IV. Creates a license for animal shelters and modifies the license for pet vendors.

V. Allows hobby breeders to register with the department of agriculture, markets, and food.

The bill would “REQUIRE” not “ALLOW” hobby breeders to register with the department, despite the language in the summary described above.

A “hobby breeder” means “A person who transfers animals for a fee and transfers 30 or fewer animals in a year.”  Notably, the term “animals” is not limited to dogs, cats, or other animals commonly owned as pets.

At least some of the requirements for “hobby breeders” appear to be draconian and overly burdensome.  See, e.g., inspection and record keeping requirements:

A hobby breeder registered under this subdivision shall:

I. Maintain in a clean and sanitary condition all premises, buildings, and other enclosures used in the business of dealing in live animals customarily used as household pets.

II. Submit premises, buildings, and other enclosures to scheduled inspections by department employees or local animal control, law enforcement, or health officials at reasonable times.

III.  Maintain, subject to inspection by the commissioner, his or her agent, local officials, law enforcement, or any member of the public, a proper record in which all live animals customarily used as household pets obtained or transferred shall be listed, including the breed, date the animal was obtained and transferred, and from whom the animal or bird was obtained and to whom the animal was transferred.  Such record shall also show the microchip, leg band, or tattoo number of each animal or bird, where applicable.  Animals that do not bear such identification shall be identified by recording markings, a physical description and any other information as the commissioner deems necessary to identify such animals.

IV. Keep records of all animals intended for transfer indicating identification, point of origin, and recipient, and shall submit said records to the commissioner upon request.

V. Provide a health certificate in accordance with RSA 437:10-d to the transferee.

VI. Shall not transfer animals to pet vendors.

VII.  Comply with such other rules as the commissioner may adopt to control disease.

The Fiscal Note, submitted with the bill as introduced, describes the expenditures required by New Hampshire related to the establishment of the Companion Animal Welfare Division within the Department of Agriculture, Markets and Foods, excluding expenses pertaining to operating the office which will house the new Division.  A wopping $3,896,000 are the estimated expenditures from 2020-2023.  The program is not expected to be operational until 2022.

The projected number, type and cost of new positions needed for the new Division includes:

Position Number of Positions FY 2022 Salary and Benefit Costs FY 2023 Salary and Benefit Costs

Inspectors

(LG 18, Step 1)

8

 

$544,000 $560,000

Administrative Secretary

(LG 14, Step 1)

2 $122,000 $128,000

Administrator II

(LG 29, Step 1)

1 $94,000 $99,000

Technical Support Specialist VI

(LG 32, Step 1)

1 $104,000 $109,000

Veterinarian

(LG EE, Step 1)

1 $101,000 $107,000

Attorney III

(LG 30, Step 5)

1

 

$111,000 $113,000
Hearing Officer Contractor 0.5 $37,000 $37,000
Total  14.5  $1,224,000 $1,266.000

 

The new Division has been purportedly modeled after the Animal Welfare Program in Maine.

However, there appear to be striking differences between the laws in Maine and those proposed in HB 688.  For example,  NH would require licensure of anyone who transfers as few as one animal for a fee.  In Maine, “a person may not advertise for sale, sell or exchange for value more than one cat or dog under the age of 6 months in a 12-month period unless that person has a valid animal shelter, kennel, breeding kennel or pet shop license or a valid vendor’s license issued under this section.”  MRS §4163 (emphasis added).

Maine also exempts hobby dog breeders from licensure as a kennel if they sell or exchange one litter of puppies within a 12-month period.  MRS §3907 (17).

While HB 688 would help the state regulate the transfer of animals through animal rescue organizations, it’s required licensure of all hobby breeders appears to be overreaching and likely not necessary to obtain the laudible goals of “put[ting] the humane treatment of animals on par with the existing mission priorities of the Department . . .”

S3366 (Senator Stack) and identical bill A3684 (Assemblywomen Chaparro and McKnight) recently introduced bills that would expand the requirements of notification to animal owners before their animals were tested for rabies virus.  Such measures could unreasonably delay testing that is required to ensure that other animals and humans were not exposed to rabies virus, a nearly 100% fatal virus.

Rabies testing requires extraction and testing of the brain, following euthanasia. The bill would also permit the owners the ability to request the return of the animal’s head following testing.  The bill would expose veterinarians, laboratory technicians and others-including the animal’s owner-to unnecessary and dangerous exposure to infectious, contagious disease if the current prohibition on the ban of the return of remains to veterinarians or animal owners is eliminated.

Rabies is a dangerously pathogenic virus, for which extensive science-based public health laws have been development and implemented. Vaccination is the key to prevent unnecessary euthanasia and testing of those animals for which approved vaccines have been developed and approved. The routine vaccination of these species, including dogs and cats, must be performed by veterinarians in New Jersey for the animal to be considered adequately protected. Proper vaccination would eliminate the need for the potentially dangerous provisions proposed in these bills.

New Jersey State and Local Departments of Health and the New Jersey Department of Agriculture enforce the state and local laws governing the reporting and testing of animals  exposed or infected with rabies virus.

Confirmed or suspect cases must be immediately reported to the relevant local health department.  Rabies, as described by NJDOH,

is an infectious disease caused by the rabies virus. Animals infected with rabies display strange behavior such as aggression, and signs of neurologic impairment including vocalization, circling, and paralysis.  People who are bitten by, or have had contact with saliva from an animal should notify the local health department (LHD) having jurisdiction where the animal is located and seek medical care.

See also N.J.S.A. 26:4-78 (“whenever a dog, cat, or other animal has been known or suspected to have been bitten by an animal known or suspected to be affected by rabies, the owner of the animal or any person with knowledge of the incident shall notify the local health department with jurisdiction where the animal is located.”).

After a report is received, “[t]he Health Officer shall then serve notice on the owner of the animal requiring euthanasia or confinement for up to 6 months and observation for the emergence of clinical signs of rabies.” (N.J.S.A 26:4-83).

Guidance from the State’s Public Health and Environmental Laboratories (PHEL), responsible for rabies testing, prohibits specimens submitted for rabies testing to be returned to veterinarians or animal animals UNDER ANY CIRCUMSTANCES.  See Preparation of Specimens for Submission (emphasis in original.)

According to the CDC, “[r]abies is a preventable viral disease of mammals most often transmitted through the bite of a rabid animal.”

Rabies testing, which requires animal euthanasia required extraction, submission and laboratory testing of at least two locations in the brain, preferably the brain stem and cerebellum.

According to the Center for Food Security & Public Health,

In animals, rabies prevention is based on vaccination and the avoidance of contact with infected animals (e.g., preventing pets from roaming, housing pet rabbits and rodents indoors) . . . Vaccination is recommended for dogs, cats and ferrets, to reduce human exposure as well as to protect the animal. Vaccination is recommended for dogs, cats and ferrets.

USDA has also licensed rabies vaccines for livestock in the United States, including horses, cattle and sheep.

 

 

Arizona bill HB 2329,  a bill titled “pet dealers: purchaser remedies” includes a repeal of Section 44-1799.11 of the Arizona Revised Statutes in the last line of the bill.  That section has nothing to do with purchaser remedies but everything to do with the regulation of pet dealers in Arizona.  Specifically, 44-1799.11 states

The regulation of pet dealers is a matter of statewide concern. A city, town or county may enact or enforce an ordinance to enforce section 44-1799.10 against a pet store or pet dealer. Any local law, rule, regulation or ordinance that imposes requirements on pet dealers that exceed the requirements of section 44-1799.10 or penalties prescribed by section 44-1799.08 is preempted. Any local law, rule, regulation or ordinance may not directly or indirectly prohibit or be applied to prohibit the sale of dogs or cats by a pet store or pet dealer, expressly or in effect, based on the source from which the animal is obtained if obtained in compliance with section 44-1799.10.

The statute was enacted following the adoption of an ordinance in Phoenix which banned pet stores from selling dogs or cats purchased from commercial breeders.  See Puppies ‘N Love v. City of Phoenix, 283 F.Supp.3d 815 (D. Ariz. 2017), appeal dismissed 2017 WL 7726037.  The “intervening Arizona state legislation that allowed pet stores to sell dogs and cats obtained from commercial breeders that met certain requirements, which preempted a charter city ordinance that banned pet stores from selling dogs or cats supplied by commercial breeders, required a vacatur of summary judgment granted in favor of city and nonprofit group on the constitutionality and validity of the ordinance, despite claims that pet store operator persuaded Arizona to pass the statute, that operator was required to show equitable entitlement to vacatur, and that public interest favored a denial of vacatur.”

There is nothing in HB 2329 revealing the repeal, other than the one-liner at the end of the bill.  Unless someone knows statutory citations, there would be no public notice that the repeal of statutory preemption was a major objective of this bill .  Therefore, those who would be impacted but such a repeal are now on notice.

There are also serious concerns about the proposed substantive amendments related to purchaser remedies:

  1. The bill would permit a purchaser to show by a preponderance of the evidence that an animal had an illness, injury, defect or congenital or hereditary condition when the purchase took possession of the animal.  This amendment is unnecessary because the law already provides for a purchaser’s remedies upon the presentation of a veterinarian’s written opinion of an illness, injury or defect to the pet store within a prescribed number of days.  With limited exceptions Arizona prohibits anyone except a licensed veterinarian from diagnosing or prognosticating “any animal condition, disease, deformity, defect, wound or injury . . .”  Ariz. Rev. Stat. Ann. § 32-2231.

Additionally, a “preponderance of the evidence” standard is a legal standard, and one which a pet store would not be able to determine. Therefore this additional provision is unnecessary and would create ambiguities that would not benefit anyone.

  1. Several amendments eliminate requirements that provide objective evidence of proof of diagnosed illness or conditions. An amendment to Section B (6) would make “findings of the examination or necropsy, including laboratory results or copies of laboratory reports” optional.  Veterinary medicine is a sophisticated medical practice wherein diagnosis of infectious diseases or congenital defects are confirmed by laboratory testing, including necropsy results.  To permit an exclusion of such objective support of a clinical diagnosis is neither sound science, nor good public policy.
  2. The bill would permit the purchaser to receive reimbursement for reasonable veterinary fees for diagnosis and treatment without restriction instead of the existing limit of “an amount not more than the original purchase price of the animal.” The cost of medical treatment varies considerably between practices, and can grossly exceed the original purchase price of the animal.  Other states limit reimbursements to two times the purchase price.  See, e.g., N.J.S.A. 56:8-95 (i)(4).
  3. The bill would permit a purchaser to receive reimbursement for the death of a pet within sixty days of the time of purchase. The current limitation is fifteen days.  The bill would permit such reimbursement in the absence of a necropsy.  The incubation period of most infectious diseases is less than fifteen days.  While complications during treatment could result in death after fifteen days, many other variables would have to be considered, making it difficult or impossible to determine a cause of death without a necropsy.  Therefore, objective laboratory diagnostic tests, including necropsies, should be required, particularly if extending the time period for reimbursement as proposed herein.

Finally, since the vast majority of pets are currently obtained from animal rescue organizations or animal shelters, similar remedies should be required of these facilities.

Originally Posted: 25 Jan 2019 12:11 PM PST, republished with permission.

In most regions of the United States, dog overpopulation as an issue has been solved, and there are more potential owners than there are local pet dogs available. For example, many of the dogs that arrive in Northeastern shelters and rescues come from the southern United States, Puerto Rico, and sometimes even foreign countries.

Ending the dog surplus problem in some parts of the country is a challenge, due to a lack of clear records. To solve a problem, you have to be able to define it. Who is breeding these dogs? Who is surrendering them? Who is adopting them? And more and more, we’re having to ask where they coming from.

One thing we do know, is that fewer dogs are being bred in the United States while the practice of importing dogs from foreign countries for adoption is growing — and fast. So it is little surprise that the partial government shutdown has led to complaints from a group that brings 800+ dogs a year into the U.S., because they can no longer obtain the proper importation permits. This is just one organization of hundreds that are importing dogs in the Southwestern U.S., threatening the health of American dogs and flooding the dog marketplace.

This is why NAIA and our legislative partner, NAIA Trust are working so hard to find legislative solutions to this mushrooming problem.

Even though the government shutdown is currently over, concerns about the importation of dogs from other countries for sale/adoption in the United States remains a serious concern.  Such importation has already resulted in the introduction and spread of diseases infectious to humans and animals.

Virulent Newcastle disease (VND), formerly known as Exotic Newcastle Disease, and African Swine Fever outbreaks continue to impact poultry in California and hogs in China, respectively.  Notably, these diseases are largely not infectious to humans, but nevertheless are impacting farmers, ranchers, hobbyists, national and internal markets.

California has been trying to stamp out VND since last May.  Unfortunately, the outbreak, which initially infected only backyard breeders and owners, has since spread to some commercial flocks.  As reported by the California Department of Food and Agriculture (CDFA), “[s]ince May 2018, USDA/APHIS and CDFA employees have been working seven days a week in Southern California to eradicate virulent Newcastle disease in backyard birds, and to protect commercial facilities.”

Virulent Newcastle disease (VND), formerly known as Exotic Newcastle Disease, is a serious, highly contagious viral disease that can affect poultry and other birds. In rare cases, humans that have exposure to infected birds may get eye inflammation or mild fever-like symptoms. These signs generally resolve without treatment, however, medical care should be sought if symptoms persist. Infection is easily prevented by using standard personal protective equipment. Virulent Newcastle disease is not a food safety concern. No human cases of Newcastle disease have ever occurred from eating poultry products. Properly cooked poultry products are safe to eat.

This is not CDFA’s first rodeo with VND.  From 2002-2003, VND outbreaks in back yard flocks and commercial poultry operations in Southern California, Arizona, Nevada and Texas “led to the depopulation of 3.16 million birds at a cost of $161 million” before the outbreak was successfully eradicated.

Since the current VND outbreak has persisted, despite a robust state and federal response, the California State Veterinarian has announced the following additional draconian measures in an attempt to contain this outbreak:

Due to progression and duration of a virulent Newcastle Disease (VND) outbreak in parts of Southern California, the State Veterinarian has ordered mandatory euthanasia of birds in neighborhoods in Compton (Los Angeles County), Muscoy (San Bernardino County), Mira Loma/Jurupa Valley (Riverside County)       Perris (Riverside County).

Unfortunately, even if birds and flocks have previously tested negative but now fall within a designated mandatory euthanasia area, the birds must be euthanized. USDA/CDFA staff will contact affected bird owners.

While this action is difficult for all involved, it MUST be done to eradicate VND. Otherwise, the disease will continue to spread and kill additional flocks.

When depopulation of flocks is mandated to contain such a devastating outbreak it is very difficult on animal owners as well as the animal health officials involved.

Parallel measures have seemingly been deployed in China, where African Swine Fever was first confirmed in more than 50 cases since August 2018.

According to USDA, African Swine Fever was “first described in the 1920s in Kenya, is a highly contagious hemorrhagic disease of wild and domestic suids with extremely high morbidity and mortality rates. ASF is a notifiable disease with the World Organization for Animal Health (OIE) due to its ability to spread rapidly and cause severe illness. ASF does not pose a risk to public health.”

Similar to concerns about the spread of Foot and Mouth Disease virus in the UK in 2001—considered the most contagious virus affecting animals—ASF can be spread by people or equipment not properly decontaminated.  Because of such concerns, the USDA and U.S. pork producers and related associations have provided information to producers about how to protect their animals against accidental exposure.

ASF has reportedly “infected 100 farms across China since August 2018, spreading faster than in any other country to date.”  

The National Pork Producers Council reported

On August 3, 2018, China reported their first case of ASF. By August 23, 2018 there were four outbreaks reported, and more are suspected. The outbreaks are in areas of China with large pig populations. APHIS, CBP and all other agencies with relevant authority are monitoring movements of people and goods from these areas to guard against an ASF outbreak in the United States. ASF does not infect people or other animals, and there are no food safety implications.

USDA has posted several guidance documents regarding its response to the ASF outbreak, available here.

A list of tasks intended to prevent the importation of infected or contaminated products, include the following precautionary measures:

APHIS import restrictions prohibit the entry of untreated animal products, including meat and meat products, from countries or regions considered affected with certain diseases. Fresh/frozen pork is prohibited from regions affected with FMD, CSF, SVD, or ASF, while meat that has been cooked is allowed under APHIS regulations.

Swine casings that originate from ASF positive countries/regions are prohibited entry into the US under APHIS regulations.

APHIS acted to deny entry of Chinese origin swine casings in transit when ASF was found in China.

A comprehensive list is available at usda-industry-prevention-points.pdf.

Bill A-4840 in the New Jersey Assembly, as currently drafted would interfere with the veterinarian-client-patient relationship and a pet owners ability to determine the proper care for their pets, and would provide animals greater access to free legal representation than people accused of criminal animal cruelty misdemeanors in the State.  It should not be passed unless amended.

The bill, as proposed states,

In any criminal court proceeding pursuant to R.S.4:22-17 et seq. or pursuant to P.L.2015, c.85 (C.2C:33-31), or any other criminal proceeding that affects the welfare or care of a cat or dog, the court may order, upon its own initiative or upon request of a party or counsel for a party, that a separate advocate be appointed to represent the best interests of the animal.  If a court orders an advocate to be appointed, the advocate shall be appointed from a list provided to the court by the Administrative Director of the Courts.  A decision by the court denying a request to appoint a separate advocate to represent the best interests of the animal shall not be subject to appeal.  A-4840 (emphasis added).

The “separate advocate . . . appointed to represent the best interests of the animal” would be in a similar legal position as a guardian ad litem appointed by the court, upon request, to represent the best interests of a child or incapacitated adult.

As the American Veterinary Medical Association’s position on guardianship of animals states, such changes in terminology and its effect would not protect animals, but would instead be harmful.

The American Veterinary Medical Association promotes the optimal health and welfare of animals.  Further, the AVMA recognizes the role of responsible owners in providing for their animals’ care.  Any change in terminology describing the relationship between animals and owners, including ‘guardian,’ does not strengthen this relationship and may, in fact, harm it.  Such changes in terminology may adversely affect the ability of society to obtain and deliver animal services and, ultimately, result in animal suffering.

When a similar bill was introduced in the Connecticut legislature, the Connecticut Veterinary Medical Association opposed the bill on similar grounds.  Before it was passed, it was amended to permit an animal advocate to represent the interest of justice, not the animal in certain criminal proceedings.

Animal cruelty is never acceptable, but the rights of animals to legal representation in court should not exceed the rights afforded to those accused of such acts.  If animals are to receive the benefit of legal representation, so too should the accused.  Since many animal cruelty offenses are considered non-indictable offenses, a defendant would not have access to a public defender, and would instead have to pay for legal representations.  If animals in these cases would be represented by attorneys appointed by the State or worse, from animal rights organizations, a gross misapplication of justice would result.

Even more concerning, is the escalation of the rights of animals as similar to the rights of children or incapacitated adults requiring representation by guardians ad litem.  The escalation of animal rights to those provided to humans, should be a concern to all except those who believe animals and humans should be afforded the same legal rights and that animal ownership is unconscionable and unethical.

Therefore, the bill should be amended to include representation of the accused in the same manner that the interests of the animals would be represented and should limit appointment of an advocate only by the court, and not upon the request of a party or counsel for a party.

NOTE: The Senate companion bill is S-3322.  A-4840 is scheduled for the Assembly Judiciary Committee on January 24.