As reported by the Associated Press on November 7, 2019, Sandra, a 33-year-old orangutan that was granted legal personhood by a judge in Argentina has moved to the Center for Great Apes in central Florida after being quarantined at a different zoo in Kansas, upon importation.

Judge Liberatori reportedly ruled that Sandra is legally a non-human person, and is “entitled to some legal rights enjoyed by people, and better living conditions [because the Judge] wanted to tell society something new, that animals are sentient beings and that the first right they have is our obligation to respect them.”

If Sandra was declared a non-human person in Argentina—person being the notable term—what is she to be considered in the US?  Presumably, she entered the US with an international health certificate for animals and not a visa or other document used for the entry of non-US citizens.  She was quarantined at the Sedgwick County Zoo in Kansas, a process not typically required for humans (although there was the nurse quarantined in New Jersey after she was exposed to Ebola patients in West Africa).

 

It will be interesting to see what animal activist groups will make of Sandra’s status in the US.  I would expect there to be an attempt to apply her status in Argentina here in the US, under an international long arm statute or similar legal argument if any apply.

As a learned colleague said, no bad bill goes away [forever].

Moose’s Law S861, one of the worst of the worst bills, has resurfaced and will be heard by the Senate Environment and Energy Committee on Monday, November 18, 2019 – 10:00 AM, at Committee Room 6, 1st Floor, State House Annex, Trenton, NJ.

For any animal facility except academic research facilities and livestock operations̶—that would be exempt if the law is adopted—private research facilities, veterinary practices, animal shelters, zoos, pet stores, and any other animal facility will have to adopt draconian hiring and employment practices that will make volunteering and other employment opportunities at these facilities nearly impossible.

The Department of Health will have to conduct criminal background checks and other reviews of potential volunteers and employees, based on information that is simply not available within the State of New Jersey and impossible to obtain about potential acts conducted outside the State—whether an individual has been convicted or not.

No one wants someone who will intentionally and cruelly treat an animal to be placed in a position, as an employee or volunteer, to conduct such acts, but this bill, if adopted, is simply unworkable.  And it will handicap those animal facilities, including veterinary practices, where students have historically begun their training as aspiring veterinarians.

With the shortage of veterinarians in the country, particularly in rural areas where large animal practitioners are desperately needed, this bill would end up harming—not protecting—animals in need of veterinary care.

An alternate means to protect animals should replace this well-intentioned bill that falls woefully short.

Kim Kavin, author of “The Dog Merchants” has started to uncover some of the truths in the world of dog rescues.  Not that all rescues are bad, of course, but fact that rescues (and to some extent shelters) have largely replaced pet stores as a source of dogs and puppies for the eight (8) million households in the US seeking to purchase/adopt a new dog.  Rescue organizations, typically with not for profit status despite charging customers for their dogs, are often minimally regulated if they are regulated at all.  This, in sharp comparison to the highly USDA and state regulated breeders, dealers and pet stores they have replaced.

As Kim noted in “When ‘Puppy Mill Rescue’ Blurs The Line Between Saving And Selling Dog,” published on July 14, 2019 in HuffPost, some of the most “prestigious” rescue organizations, like National Mill Dog Rescue, are purchasing dogs and puppies from commercial dog breeders, including USDA licensed breeders, so are not shutting these businesses down, but are supporting them.

Not to suggest that humanely raised USDA-licensed or exempt breeders should be shut down.  The opposite is true.  And, if rescues serve as an outlet for breeding dogs or puppies have some defect or are too old to sell from those pet stores that are still able to do so (which usually require a warranty of health for specified periods of time) then they serve a valuable purpose.  But they should inform their customers about the source of the dog and any potential health issue they are aware of, just like pet stores are required to do.

As reported by Kavin, “the dogs coming from breeders [to National Mill] throughout 2017 and 2018 were far younger, and healthier, than multiple commercial breeding experts and activists suggest they would be in a ‘rescue’ situation.”

The reporting shows that questionable practices at National Mill aren’t limited to marketing. Two agencies in Colorado — the state Department of Regulatory Agencies and a division of the state Department of Agriculture — have opened investigations into the nonprofit following complaints that Jene Nelson, National Mill’s former marketing director-turned-whistleblower, filed with the state in early 2019. Those complaints allege that National Mill has trafficked dogs across state lines without legally required veterinary paperwork, falsified rabies certificates prior to dogs being offered for adoption or transferred to other shelters, and more than once delayed or failed to provide needed veterinary treatment.

This should be cause for concern.  Dogs, increasingly imported (legally or otherwise) into the US from other countries, including those with endemic canine rabies and other zoonotic diseases, poses a hazard to people and pets in the communities where they find their “forever homes.”

The public has been duped into believing that rescues are offering dogs bred in horrible puppy mills that must be shut down.  Truth is that the animal rights groups perpetuating those myths believe all purpose-bred dog breeders are puppy mills.

As Kavin notes, “[t]he virtue signaling around shelters and dog rescue is loud and clear.”  It is long-overdue that the truth about animal rescue is revealed.

A newly introduced bill in New Jersey, S4156 and sister bill A5404 would establish civil action for damages for injury or death of certain animals in certain circumstances.

Those circumstances would include any unlawful and intentional or negligent act of a person that results in the injury or death of a pet dog or pet cat normally maintained in or near the household of the owner, or the injury or death of any service animal or guide dog or a search and rescue dog.

The remedies would not be available for “any governmental agency, or its employees, negligently causing the death of an animal while acting on behalf of public health or animal welfare . . .[or] for professional negligence against a licensed veterinarian.”

So, it appears that this would provide for non-economic damages for veterinary malpractice, or if a government run shelter mistakenly or prematurely euthanized a pet.

For the remaining potential situations in which damages would be applicable, those damages “may include, but are not limited to, the monetary value of the animal, veterinary expenses incurred on behalf of the animal, any other expenses incurred by the owner in rectifying the effects of the cruelty, pain, and suffering of the animal, and, as set forth in subsection c. of this section, compensation for emotional distress suffered by the owner.  If the killed or injured animal was a service animal or guide dog or a search and rescue dog, then the value of that animal may include the cost of any specialized training the animal received.”

Noneconomic damages available if this bill is enacted would be limited to $5000.

Animal rights organizations pressure animal agriculture businesses to include such statements, ostensibly to avoid negative publicity campaigns and protests. Targets include producers of beef, dairy products, eggs,poultry and pork, as well as goat and sheep farmers. Similarly, food manufacturers, distributors and restaurant chains are pressed to advertise that their suppliers comply with certain animal welfare standards.

Of course, the humane care of livestock and poultry is of primary concern to producers and the food sector, but businesses should be aware that many animal rights activists believe that any treatment of animals raised for human consumption is inhumane.

Several of these organizations target farmers, biomedical research facilities and animal breeders in undercover investigations after obtaining employment under false pretenses. They claim that their Constitutional First Amendment rights protect this conduct.

In federal litigation in North Carolina, the Animal Legal Defense Fund (ALDF) and People for the Ethical Treatment of Animals (PETA) admitted that they have used undercover investigators to gather video and audio evidence of what they believe to be unethical or illegal treatment of animals.

AnimalRecoveryMission (ARM), another activist organization, also conducts undercover investigations. Following their undercover investigation at Fair Oaks Farms, a dairy farm in Indiana, Newton County Prosecutor Jeff Drinski said, “Detectives had evidence that ARM’s undercover investigator coerced or encouraged workers to hurt calves for the sake for a series of videos.”

Despite that, Fair Oaks, its affiliates and joint venture partner were named as defendants in class action lawsuits filed after release of the videos, alleging violations of state deceptive and false advertising statutes as well as unfair competition and fraud. The suits cited the defendants’ promises of humane care and animal welfare advertising, alleging that consumers relied on those promises when purchasing their products, and that the videos taken by ARM revealed the statements to be deceptive, constituting false advertising.

Plaintiffs attorneys trolling for class actions related to product labeling claims is nothing new. But these lawsuits present a troubling new twist by capitalizing on the pressure placed on animal agriculture producers, intermediate manufacturers and end retailers to commit to animal welfare statements and labels. This is now increasingly combined with video created by undercover activists — whether accurately portrayed or not.

In light of this trend, businesses should carefully review their animal care and handling statements, policies and related labeling and should remind relevant staff of the criticality of proper and humane care. Security at farms and hiring practices should also be reviewed.

An increasing tactic of animal rights organizations (AR) is to mine public records in the hopes of finding ammunition to use against universities, pharmaceutical companies, contract research organizations and associated vendors.

People for the Ethical Treatment of Animals has used data from public records to launch a database of universities, grading them “bad” to “worse,” even if they do not currently house animals involved in research.

Although the filing of many public documents is mandatory, there are steps researchers can take to minimize the impact of these adverse tactics.

The statistics are illuminating, revealing that many ARs are well funded and laser focused on filing requests under the Freedom of Information Act and similar state laws. The National Institutes of Health and the U.S. Department of Agriculture have seen sharp upticks in recent years in FOIA requests from these groups:

  • People for the Ethical Treatment of Animals
  • National Anti-Vivisection Society
  • Stop Animal Exploitation Now
  • New England Anti-Vivisection Society
  • American Society for the Prevention of Cruelty to Animals

The mission statements of these ARs is to end the use of animals in research. Their tactics for accomplishing this mission include public relations campaigns and litigation, as well as undercover operations in which activists infiltrate research facilities, posing as employees, with the hopes of gathering or creating evidence, especially in the form of video.

This places ARs squarely at odds with many researchers in academia, nonprofits and a wide range of industries, particularly pharmaceuticals. For researchers, animals remain the only way to ensure certain drugs and devices are safe and efficacious for use in humans, but they endeavor to reduce, replace and refine the use of animals, as ethically and legally required.

Public records are increasingly used by ARs as a starting point for waging battles with researchers. SAEN and others file complaints with the USDA and other agencies requesting violations or fines to be assessed and elimination of animal studies. Some also target individual researchers, universities, specific programs, contract research organizations and vendors related to all and attempt to bully them into ceasing operations.

What protective measures can you take?

All documents and information provided to any governmental agency should be designated as confidential and proprietary as applicable. This information should be routinely handled in the same manner to ensure adequate protection. Trade secret information and other information that, if publicly released, would result in competitive harm should be redacted before disclosure to a requesting entity, in addition to personal data. Confidentiality agreements between vendors, licensees and the like should also be kept up to date.

Security efforts should also extend to your standard operating procedures, including physical security of your facility and protectable information, hiring practices, employee training and policies that restrict access to protectable information and animals.

Staff should be required to report any animal-handling or care-related concerns immediately and respond promptly to correct any deviations from proper care. Planning for response to intrusions from AR should also be included in the organization’s disaster planning.

In “Dogs Are Not Here for Our Convenience,” an op-ed by Alexandra Horowitz published by the NYT on September 4, 2019, Dr. Horowitz questions the “widespread policies of desexing dogs, [because] we are not just removing their gonads.  We are changing their bodies, their health and their behavior-not always for the better.”

As previously discussed in “Pet Stores Under Attack-Mandatory Sterilization Preempted by State Law,”  a New York City Law that mandates sterilization of puppies and kittens as young as 8 weeks old if sold from pet stores, we discussed the dangers of such requirements which violate the standards of veterinary practice.  Veterinarians are required to advise clients of the risks of any procedure they may perform, including spay or neuter, and must receive informed consent from those clients before proceeding.

New York City prevented veterinarians from fulfilling their duties by requiring neutering of very young animals that does nothing to protect the health of those animals and instead, unnecessarily harms them.

As Dr. Horowitz points out premature neutering “before 6 months of age, increase[s] . . . [the] risk of serious joint diseases, four to five times over the risk intact dogs face,” citing the research conducted by Benjamin Hart at the University of California, Davis.

The risks of spay/neuter are being re-examined by the veterinary profession.  Premature removal of endocrine glands (ovaries and testes) can be detrimental to dogs and cats, but retention of those organs can also result in some malignancies.  The profession is studying when and what procedures would benefit pets.  Retention of these organs, as Dr. Horowitz suggests, through procedures that would otherwise render pets sterile (tubal ligations or vasectomies) could expose pets to cancer caused by hormones ovaries and testes release, and inflammatory disorders that could also result from such retention.

The American Veterinary Medical Association and the Society for Theriogenology and the American College of Theriogenology are opposed to mandatory sterilization laws for privately-owned pets.  Based on scientific evidence, veterinarians and specialists now often recommend delaying sterilization until the first heat to prevent the harm from premature removal of endocrine glands needed for proper growth and certain metabolic disorders and cancer.

For every pet, except where legally otherwise required, the owner should be able to consult with their veterinarian to determine the best option for that pet.

Two articles were published about dogs (and cats) in the New York Times on September 4, 2019, that describe, in part, varying positions of a complicated issue-spay and neuter of pets in the United States—“Spaying, Neutering and Rescuing Lead to Drop in Pet Euthanasia” by author Alicia Parlapiano and “Dogs Are Not Here for Our Convenience” by Alexandra Horowitz.  Ms. Parlapiano describes the decreased euthanasia rates across the country attributable—at least in part—to voluntary spay and neutering programs and increases in adoptions from shelters and rescue organizations.

As previously discussed, beginning with the voluntary spay and neuter program instituted by the Maine Department of Agriculture decades ago, most states in the North East and other locations have significantly reduced the number of dogs roaming the streets resulting from irresponsible dog breeding.  There are some pockets in the country, where there are populations of stray and roaming dogs.  As Ms. Parlapiano reported, after a tragic and fatal dog attack in Dallas in 2016, consultants “determined that there were about 8,700 loose dogs roaming in the city that year.  The dogs were almost exclusively found in low-income South Dallas neighborhoods.”

Importantly, the consultants did not conclude that the dogs were purebred or purposely-bred dogs purchased from pet stores.  This false narrative has been used extensively by animal activists to convince lawmakers that pet stores are evil, the puppies they sell are sick and genetically flawed, and that they come from puppy mills.  All lies, but which have had their intended effect—ban sales of professionally and purposely bred dogs to people through pet stores.

Now that the vast majority of people are buying, aka adopting, dogs through shelters and rescues, the continued existence of the amazing number of dog breeds is imperiled.  A recent study, published by INDEPENDENT, titled “Humans have altered dogs’ brains, research finds” by Jason Bittel, reports that “selective breeding [of dogs] by humans has resulted in a single species with more physical variation than almost any other in the animal kingdom.  And now, scientists have provided the first evidence that all of this selective tweaking has not just changed dogs’ sizes, shapes, colours and behaviours.  It has also altered the way their brains are built.”If true, the behaviors of certain breeds that people find enduring and specifically desire in their family pet, may be lost if purposefully-bred dogs were entirely replaced by randomly, irresponsibly-bred dogs that end up in shelters and rescues.

Ms. Parlapiano also reported on two increasingly important issues affecting pets that are subject to shelter and rescue environments: (1) that there is a significant lack of uniform data to track the movement of animals through these international, national and local systems—often unregulated (my contribution); (2) the increased scrutiny of euthanasia rates in shelters, results in movement of animals from facility to facility—which may be detrimental to each animal’s health and welfare (also my contribution).

But the overarching observation that spay and neuter programs have led to decreased euthanasia of animals in shelters, is questioned in the other dog-related article published in the same edition of the Times—“Dogs Are Not Here for Our Convenience,” an op-ed by Alexandra Horowitz which will be discussed in a subsequent blog.

On Wednesday, August 21, 2019, the U.S. Department of Transportation published a “Final statement of enforcement priorities regarding service animals.”  84 FR 43480-01, 2019 WL 3934886 (F.R.).  Unfortunately, as several associations commented, the language in this “guidance document” creates more not less confusion regarding what is legally identifiable a “service animal.”

This final statement followed an interim statement (published on May 23, 2018) and an advance notice of proposed rulemaking (ANPRM) seeking comment on amending the Department’s Air Carrier Access Act (ACAA) regulation on the transportation of service animals (published on May 23, 2018).

As several commenters stated, these publications conflate the ADA service animal and emotion support animals as “service animals” instead of differentiating the use of these animals, as legally recognized, as (1) service animals permitted pursuant to the ADA (dogs and miniature horses, trained to address an individual’s disability); and (2) those used commonly as emotional support animals (no specific training is required).  The agency stated “the most commonly recognized service animals (i.e., dogs, cats, and miniature horses) are accepted for transport.”

The agency defines service animals to include emotional support animals: Service Animals (Including Emotional Support Animals)

Under the Air Carrier Access Act (ACAA) a service animal is any animal that is individually trained or able to provide assistance to a person with a disability; or any animal that assists persons with disabilities by providing emotional support.

As the AVMA stated, emotional support animals, while beneficial to certain people, should not be categorized as service animals:

While the AVMA also recognizes the therapeutic benefits realized by those who legitimately utilize appropriately matched emotional support animals (ESAs), and has adopted policy accordingly (see https://www.avma.org/KB/Policies/Pages/Emotional-Support-Animals.aspx), we believe the ACAA’s implementing regulations should be amended to align with the ADA in that a service animal should be defined as an animal that is individually trained to assist a person with a disability. Emotional support animals provide therapeutic benefits that alleviate one or more identified symptoms or effects of an individual’s disability, or provide emotional support to a disabled individual who has a disability-related need for such support. An ESA may be a dog, a cat, or many other kinds of animal. The way in which support is provided by ESAs (via their presence) differs from that provided by service animals (via their actions), as does the training and acclimation these animals can be expected to receive. As such, ESAs should not be considered to be analogous to service animals.

Similarly, in combined comments from the Airlines for America and the International Air Transport Association, the associations described increased concerns about the increasing identification of emotional support animals from their customers, noting:

In recent years, U.S. airlines have encountered a surge in the number of passengers seeking to travel with service animals. From 2016 to 2017, the number of service animals (excluding emotional support animals (“ESAs”)) that U.S. airlines accommodated in cabin increased by nearly 24%. The number of passengers seeking to travel with ESAs (and psychiatric service animals (“PSAs”)), however, increased at a far greater rate: by 56% in just one year (from 2016 to 2017). As DOT noted, one U.S. airline experienced a 75% increase from 2016 to 2017. One A4A member airline has experienced a more than eightfold increase in the number of ESAs since 2012. In 2017, U.S. airlines accommodated more than 750,000 ESAs in cabin, which constitutes 73% of all estimated service animals transported.

. . .

In a directly related development, our member airlines have experienced a disturbing growth in the number of passengers with questionable claims of disability seeking to travel with animals that they suggest are necessary to provide “emotional support,” but which are not trained as service animals (or even trained at all to behave in public settings like aircraft or airports). These animals, which may include wild and/or untrainable species, often are unable to behave appropriately in a public setting, including within the confines of an aircraft cabin. This growth in the number of ESAs carried has been accompanied by a surge in the number of incidents involving animals manifesting aggressive behavior (including barking, biting, nipping, growling, and fighting) and uncontrolled urinating and defecating in cabin and in the airport terminal at locations other than service animal relief areas.

As previously discussed, there are well known, widely accepted and scientifically based theories about the human health and behavioral benefits of companion animal ownership.  See, e.g., “The human-companion animal bond: how humans benefit,” Friedmann E1, Son H, PubMed.gov.

Abstract

The human-animal bond is extremely important to most clients of small animal veterinary practices. Pet ownership, or just being in the presence of a companion animal, is associated with health benefits, including improvements in mental, social, and physiologic health status. This article provides the research data regarding the human health benefits of companion animals, animal-assisted therapy, animal-assisted activities, and assistance animals; reviews measures that can be taken to enable safe pet ownership for the immunocompromised, and discusses the veterinarian’s role in supporting immune-compromised clients and clients who have assistance animals.

Continued differentiation of ADA-service animals from others that provide support to humans must be advanced to ensure that those who are in need of such assistance are able to continue to rely on the animals that provide them with such assistance.

The Swine Health Protection Act (7 U.S.C. 3801, et seq.), enacted in 1980, regulates food waste fed to swine and helps ensure that it is properly treated to kill disease causing organisms.  According to USDA,

The Swine Health Protection Act (SHPA) regulates food waste containing any meat products fed to swine.  Compliance with this act ensures that all food waste fed to swine is properly treated to kill disease organisms.  Raw meat may transmit numerous infectious or communicable diseases to swine, including exotic animal diseases such as foot-and-mouth disease, African swine fever, and classical swine fever.  In accordance with the SHPA and Federal regulations, food waste containing meat may only be fed to swine if it has been treated to kill disease organisms.

This practice has long been touted as an environmentally friendly way to feed hogs.  See,  i.e., “Recycled food waste in pig diets can reduce environmental footprint,” published in NationalHogFarmer, April 19, 2018.

As evidenced most recently in Oklahoma, in the wake of concerns about the potential global spread of African Swine Fever, states have increasingly banned this practice—even though the laws mandate cooking to eliminate infectious agents before feeding.  The Oklahoma State Veterinarian stated that “[g]arbage feeding increases the risk of foreign animal disease transmission to the swine industry . . . Outdoor domestic swine generally do not have strong biosecurity or fencing.  This creates an increased risk for diseases to spread to the feral hog population as well.”  See “Swine garbage feeding to be prohibited in Oklahoma starting November 1,” posted 10:44 AM, September 5, 2019, by K. Butcher, updated at 11:21 AM, September 5, 2019.

Historically most swine operations feeding recycled food house hogs outside.  New Jersey, one of the states still permitting such practices (though use has declined significantly) requires compliance with strict provisions that keep animals and people safe.  See Subchapter 4. Swine Disease Control, which includes the following provisions:

2:2–4.1 USDA Swine Health Protection Act Adopted, Supplemented

2:2–4.2 Compliance with Statute and Rules for License Issuance

2:2–4.3 Minimum Floor Space

2:2–4.4 Drainage of Buildings

2:2–4.5 Facilities for Out-of-State Animal Shipments

2:2–4.6 Water Supply

2:2–4.7 Garbage Truck Specifications

2:2–4.8 Equipment for Certain Operations

2:2–4.9 Size and Construction of Vats, Containers and Covers

2:2–4.10 Thermometers

2:2–4.11 Period for Accomplishing Heat Treatment of Garbage

2:2–4.12 Holding Areas/Containers for Untreated Garbage

2:2–4.13 Fuel Supply

2:2–4.14 Facility for Temperature Determination and Inspection

2:2–4.15 Garbage Spillage

2:2–4.16 Garbage Feeding on Ground

2:2–4.17 Trash on Premises;  Storage;  Removal

2:2–4.18 Feeding Platforms 2:2–4.18 Feeding Platforms

2:2–4.19 Solid Waste Disposal

2:2–4.20 Liquid Wastes

2:2–4.21 Dead Animal Removal

2:2–4.22 Rodent and Insect Control

2:2–4.23 (Reserved)

2:2–4.24 (Reserved)

2:2–4.25 2:2–4.25 Premises Concentrating Swine for Public Sales Construed as Livestock Market

2:2–4.26 Quarantine of Premises Suspected of Hog Cholera Infection

2:2–4.27 Notice of Hog Cholera Illness

2:2–4.28 Removal of Swine Dead of Hog Cholera;  Construction of Trucks

2:2–4.29 Cleaning and Disinfecting Trucks

2:2–4.30 Investigation of Suspected Hog Cholera;  Access to Premises

2:2–4.31 Indemnity for Swine Destroyed by Hog Cholera

2:2–4.32 Swine Consigned to Livestock Markets

2:2–4.33 Quarantine of Swine After Sale

2:2–4.34 Disinfecting Following Sale of Swine

2:2–4.35 Indemnity of Infected Swine in Sale Market

2:2–4.36 Authority of Secretary of Agriculture or His or Her Agents

2:2–4.37 Swine Pseudorabies Vaccination

 

Feeding swine recycled human food predates the enactment of the Swine Health Protection Act, and the practice was expressly exempted from the prohibitions New Jersey tried to impose on Philadelphia— banning the importation of garbage—held invalid under the commerce clause in City of Philadelphia v. New Jersey, 98 S.Ct. 2531 (1978).

According to USDA, currently 22 states prohibit such feeding practices, but Oklahoma’s News 4 reported that Oklahoma would become the 24th state to ban the practice.

Regardless, this environmentally-friendly alternative appears to be on its way out.