Reposted with permission from CHRISTINE ALVARADO. First published on Meatingplace.com on August 23, 2019. https://www.meatingplace.com/Industry/Blogs/Details/87218

 

One of my previous blogs on April 5, 2019, “The Pecking order in a Straight Run Barn” mentioned some work my colleagues were conducting to survey women leaders in science and agriculture.

The focus of this survey was to determine the barriers that exist for women moving into leadership roles. I received several email and comments asking about the results.  The research was presented this summer at a scientific meeting and the results are ready to share.

Even though the numbers of women in leadership roles in business and industry have increased, agriculture and science still have lower numbers of women choosing these professions.

Why is this topic and type of research important to the poultry industry?

We are in a huge retirement phase from both the poultry and allied industries, especially with managers, directors and the executive level. So, we are looking for great leaders as we face specific, unique challenges with meat quality and food safety.

In addition, the academic world is seeing more female degree-seeking students in agriculture and females have become the majority in some animal and poultry science degrees. Therefore, we need to better pave a road for females to engage in these leadership roles for the industry to continue to grow and succeed.

Women often experience issues related to work-life balance when assuming leadership roles. “Why” was one of the questions we were looking to explore with this study. Understanding the barriers to women assuming leadership roles is an important step in increasing the number of women in these roles specifically in science and agriculture in the future.

Although social norms may be changing regarding the extent to which spouses share household and parenting activities, studies have shown that women are primarily responsible for childcare and household work. In addition, even though more organizations are considering more family friendly policies, is this enough to entice more women into the leadership role in agriculture?

The respondents of this survey were 44 years old (average), married (68.3%), with children (63.3%) and were highly educated (63.3% having an MS or a PhD), and traveled for their current jobs more than 2-3 times per month (most actually travel a lot more than that).

The largest discrepancies between what women rated as “important” versus where they rated in “satisfaction” were the availability of leadership development and mentoring opportunities, and responsibilities to home and raising children.  The respondents surprisingly (to me) found a similar level of importance and satisfaction related to support from colleagues, spouses and future home obligations.

However, women felt “stressed”, “anxiety” and uncertainty” when contemplating a more demanding leadership role.  When identifying barriers, the top of the list were “family responsibilities”, “advanced opportunities”, “time” and “home responsibilities.

What can we do as a poultry industry?

We all need to talk about this topic much more in the workplace. Women often don’t speak up regarding their needs in order to climb the corporate ladder and men aren’t always at the table when this topic is discussed in the workplace.

As a final thought, women are way too tough with each other; we are each other’s harshest critics. We (as women) don’t all have the same wants and needs and we all don’t want to climb the ladder and that’s OK!  Someone must intentionally devote time to family responsibilities such as raising kids, taking care of aging parents, and other family responsibilities.

So, let’s all get on the same page and thank the men and women out there doing the intentional work and support the men and women climbing that ladder.

Dr. Christine Alvarado is currently a professor in the Department of Poultry Science at Texas A&M University. In addition to academic teaching and research, she has worked in the poultry industry and served as a subject matter expert for USDA’s Food Safety and Inspection Service.

People who observe Halal and Kosher religious practices are increasingly faced with a threat to the prohibition of such slaughter practices in certain countries.  Many Muslim and Jewish observers follow dietary religious laws if they eat meat.  Specifically, livestock and poultry must be slaughtered following strict rules, requiring that the animal is healthy at the time of slaughter and has not been rendered unconscious through stunning.[i]  Animal rights activists believe that such practices cause unnecessary suffering to animals and have advocated for prohibitions of such practices, in some cases successfully.  With the advent of lab meat (or in vitro meat), scientists and religious leaders are struggling to determine if this alternative can qualify as halal and kosher.[ii]

There are a number of European countries that do not allow the halal or kosher slaughter of animals without being stunned before the slaughter, but there are others who permit the practice for the amount necessary for consumption by the religious group.[iii]  Specifically, the Netherlands has passed laws to end religious slaughter altogether, as advocated by The Dutch Party for the Animals.[iv]  Despite the animal rights activists’ involvement, some European countries have a powerful history of anti-Semitism and anti-Muslim rhetoric.[v]  The religious minorities often view such regulations as an emulation of Adolf Hitler’s 1933 ban on the slaughter of animals in Germany without prior stunning, which prevented Jews in Nazi Germany from accessing acceptable kosher meat.[vi]

Many Rabbis and Islamic scholars have considered the question of whether prior stunning of the animal before slaughter is allowed under halal and kosher obligations.[vii]  The rabbis have reached a general consensus that stunning prior to slaughter is not consistent with Jewish doctrine, even under extreme situations, like that of Nazi Germany.[viii]  On the other hand, Islamic scholars have not come to a consensus about the topic; some accepting the practice if all the other conditions for halal slaughter are met, and others rejecting it because they believe it is against religious rules and creates problems for animals.[ix]  However, of the 500 million animals slaughtered annually for consumption in the Netherlands, about 1.6 to 2 million are used for halal meat, and only 3,000 are for kosher meat.[x] Thus, it is the Jewish community in the Netherlands that is facing the true challenge of finding necessary alternatives to kosher meat.[xi]

An alternative to halal and kosher meat in the Netherlands may be the world’s first test-tube beef burger, developed by biologist Mark Post of Maastricht University.[xii]  However, there are questions amongst Muslims and Jews about whether their faith allowed them to eat lab produced in vitro meat.[xiii]  In vitro meat is animal tissue cultivated from myoblasts cells that are mixed with the requisite proteins and fatty acids, and grown under lab-monitored conditions, allowing the donating animal to live.[xiv]  Thus, Jewish and Muslim scholars question whether such cultured meat is religiously acceptable.[xv]  One view is that the myoblast cells must be taken from animals considered halal, forbidding cells from pigs, dogs, or other impermissible animals.[xvi]  On the other hand, Rabbi Yuval Cherlow believes that even lab-grown pork would be kosher for consumption by Jews, as cloned meat is not subject to the rules of regular meat.[xvii]

Thus, despite the high cost of lab meat and unknown long-term effects on human health and the environment, this may be a viable alternative to those Muslims and Jews who live in countries where traditional religious slaughter has been banned.[xviii]

[i] Nina Siegal, New Slaughtering Rules Pit Dutch Religious Freedoms Against Animal Rights, N.Y. Times, Dec. 31, 2017, https://www.nytimes.com/2017/12/31/world/europe/netherlands-kosher-halal-animal-rights.html.

[ii] Id.

[iii] Library of Congress, Legal Restrictions on Religious Slaughter in Europe, March 2018.

[iv] Siegal, supra note 1.

[v] Id.

[vi] Library of Congress, Legal Restrictions on Religious Slaughter in Europe, March 2018.

[vii] Id.

[viii] Id.

[ix] Haluk Anil, Religious Rules and Requirements – Halal Slaughter, Dialrel, http://www.dialrel.eu/images/halal-rules.pdf, (last visited July 12, 2019).

[x] Siegal, supra note 1.

[xi] Id.

[xii] Reuters, Is the ‘Lab Burger’ Kosher or Halal?’ ‘Cultured Meat’ Sparks Questions on Religious Rules, HuffPost, August 9, 2013.

[xiii] Id.

[xiv] Thomas Billinghurst, Is ‘shmeat’ the answer? In vitro meat could be the future of food, Gulf News, May 02, 2013, https://gulfnews.com/going-out/restaurants/is-shmeat-the-answer-in-vitro-meat-could-be-the-future-of-food-1.1176127.

[xv] Id.

[xvi] Id.

[xvii] Toi Staff, Rabbi: Lab-grown pork could be kosher for Jews to eat – with milk, The Times of Israel, March 22, 2018, https://www.timesofisrael.com/rabbi-meat-from-cloned-pig-could-be-eaten-by-jews-with-milk/.

[xviii] Reuters, supra note 13.

 

Bunyad Bhatti is a summer associate in the firm’s Princeton office.

In this series of posts examining a recent challenge to North Carolina’s expansion of its Right to Farm Act, Rural Empowerment Ass’n for Cmty. Help v. State, No. 19-CVS-008198 (N.C. Super. Ct. filed June 19, 2019) (detailed here), today’s post considers the plaintiffs’ invocation of the relatively unknown, but not un-litigated, prohibition on “local and special laws” in the N.C. Constitution. N.C. Const. art. II, § 24. “The General Assembly shall not enact any local, private, or special act or resolution . . . [r]elating to health, sanitation, and the abatement of nuisances.” Id. Plaintiffs in the REACH complaint argue that the Act’s amendments constitute a “special law” because they were adopted “in response to a specific case and to existing circumstances at the time of their passage and designed to protect a special class or favored few.” Complaint at 37, Rural Empowerment Ass’n for Cmty. Help, No. 19-CVS-008198.

North Carolina courts have not yet analyzed whether a limit on punitive damages constitutes a “special law.” Nor is it clear how the Right to Farm Act amendments even relate to “issues of health, sanitation, and the abatement of nuisances,” at least as far as North Carolina courts have construed those terms. The Supreme Court of North Carolina has stated that courts must look to “whether, in light of its stated purpose and practical effect, the legislation has a material, but not exclusive or predominant, connection to issues involving health, sanitation, and the abatement of nuisances.” City of Asheville v. State, 369 N.C. 80, 103, 794 S.E.2d 759, 776 (2016).

There is also little guidance on how North Carolina courts interpret the meaning of a “special” act or resolution. Most of North Carolina’s jurisprudence has arisen on the “local” front, but North Carolina courts have treated the terms “local” and “special” seemingly interchangeably at times. When North Carolina courts have attempted to distinguish between “local laws” and “general laws,” they have applied a “reasonable classification” test, which distinguishes between local laws, which “discriminate[] between different localities without any real, proper, or reasonable basis or necessity,” and general laws, which “appl[y] to and operate[] uniformly on all the members of any class of persons, places or things requiring legislation peculiar to itself in matters covered by the law.” City of Asheville, 369 N.C. at 91, 794 S.E.2d at 768–69. Assumedly, the state’s courts would apply an analogous test (with altered language) to the question of what constitutes a special law with one possible conclusion being that “[a] law which applies generally to a particular class of cases is not a local or special law.” See Reed v. Howerton Eng’g Co., 188 N.C. 39, 123 S.E. 479, 481 (1924).

How the court treats this legal theory will be telling in how state legislatures can constitutionally encourage the growth of agricultural industries in their state. If the very fact that a law allegedly benefits a specific individual or entity makes it an unconstitutional special law, the state’s government would likely be severely constrained in attracting entrepreneurs to the state or maintaining the state’s growing economy. For example, the General Assembly has passed a law that allows business owners to sue for harm to their business if an individual fraudulently gains employment there in order to engage in an undercover investigation, which then goes public. The North Carolina Property Protection Act, N.C. Gen. Stat. § 99A-1 (2018). Would such a law, although textually aimed at generally protecting property rights across industries, be a special law because it also benefited the state’s agricultural operations, specifically the poultry industry? State lawmakers would have to ensure that no law benefited any entity over the other, even tangentially, a seemingly absurd proposition. Hopefully the court will clarify exactly what constitutes a “special law” and if the term has a meaning distinguishable from “local.”

Sean Placey is a summer associate in the firm’s Greensboro office.

Losing a pet can be hard for owners.  However, it can be even harder for those owners to know that they will be separated from their beloved pets in their final resting place.  In the U.S., households own about 89.7 million dogs and 94.2 million cats.[1]  When looking at total pet ownership, including horses, fish and other animals, that number is at almost 400 million “pets.”[2]  As sad as it may be, both these pets and their owners are destined to pass on eventually.  Owners may worry about what will happen to their pre-deceased pet’s remains when the inevitable happens and the owners themselves pass on.  They may also be concerned about where a pet that outlives them will be buried.

The solution to these concerns will ultimately depend upon the state of burial for the owner.  As of 2016, New Yorkers are allowed to be buried in certain cemeteries alongside the cremated remains of their pets.[3]  However, this requires that the human be buried in a not-for-profit cemetery that has consented to the pet burial on its grounds.[4]  This law also only allows the burial of cremated pets on cemetery grounds.[5]  While these requirements may be slight inconveniences, New York is far more permissive of owner-pet burials than many other states.

In New Jersey, while it is technically possible for pet owners to have their remains disposed of in their pet’s cemetery, as described below, it is much harder for a human to share their final resting place with their pet, since New Jersey does not allow pets to be buried in human cemeteries.[6]  For those pet owners who take the time to plan, the following options are available.

A person who elects to be cremated can have their ashes scattered in a pet cemetery containing their pet’s remains,[7] since human cremation is considered a final disposition.[8]  Alternatively, a person can be buried in a pet cemetery as long as the pet cemetery permits human remains to be buried in their plots.[9]  This takes a considerable amount of planning for the owner prior to their death, something that not all people either think about or are able to do.

Additionally, these alternatives are subject to other practical considerations that owners have to account for.  First, they need to consider the impact this decision may have on their surviving family members and the owner’s beliefs regarding an appropriate final resting place for themselves.  For example, some of the Jewish faith consider cremation, at the least, frowned upon, and most consider it prohibited.[10]  Second, there are different rules governing the maintenance and future uses of pet cemeteries, as opposed to strictly human cemeteries.[11]  Thus, those considering burial in a pet cemetery may have to consider whether they are comfortable with the knowledge their resting place may not remain final.

While there may be some solutions for New Jersey residents that wish to be buried with their pets, there is a considerable amount of planning and contemplation that must go into this decision, as compared to New York residents in the same position.

All pet owners concerned about these issues should consider including their desired options in their wills and/or trusts so that their wishes are followed to the extent they are legally valid.

[1] American Pet Products Association Inc.’s 2017-2018 National Pet Owners Survey & Demographic Sourcebook; AVMA 2016.  U.S. Pet Industry Spending Figures & Future Outlook.

[2] Id.

[3] N.Y. Not-for-Profit Corp. Law § 1510(n) (McKinney 2016).

[4] Id.

[5] Id.

[6] N.J.S.A. 45:27-2 (defining a cemetery as “land or place used or dedicated for use for burial of human remains, cremation of human remains, or disposition of cremated human remains”) (emphasis added).  Additionally, The New Jersey Cemetery Board, which is in charge of licensing and regulating non-religious corporation cemeteries, has stated that, based on this definition, “A cemetery, by definition may not accept pets, unless it is exclusively a pet cemetery.”

[7] Alex Nepoliello, Want to Be Buried With Your Pet?  In N.J., It’s Complicated, NJ.com (June 26, 2019), https://www.nj.com/news/2016/09/can_nj_residents_be_buried_with_their_pets.html.

[8] See N.J.S.A. 26:6-4.2 (including cremation among discussion of final disposition).

[9] There is no state prohibition on burying human remains on private property.  However, if it is deemed dangerous to public health, such a burial may be disallowed.  See N.J.S.A. 26:6-5.  Also, before burring a body on private property, local laws and rules should be consulted and a burial permit should be obtained.  N.J.S.A. 26:6-5.1.  See also Nepoliello, supra note 7.

[10] MJL, Jewish Views on Cremation, My Jewish Learning, https://www.myjewishlearning.com/article/judaism-on-cremation/ (last visited June 27, 2019).

[11] Compare N.J.S.A. 4:22A-5 (which can allow for the removal of a dedication of a pet cemetery by the pet cemetery owner if there is relocation of the remains and permission from heirs or assigns to relocate the remains) with N.J.S.A. 45:27 (making no provision for the removal of a dedication on a cemetery).

Carmella Campisano is a summer associate in the firm’s Princeton office.

In the ongoing controversy over a series of nuisance suits regarding eastern North Carolinian hog-farming operations, a collection of advocacy groups have now filed a constitutional challenge to the North Carolina General Assembly’s recent amendments to the Right to Farm Act (the “Act”) (detailed here) in Wake County Superior Court. Rural Empowerment Ass’n for Cmty. Help v. State, No. 19-CVS-008198 (N.C. Super. Ct. filed June 19, 2019).

The amendments to the Act protect North Carolinian agricultural and forestry industries operating in good faith. The statutory scheme’s text is broadly applicable to any agricultural or forestry operation that allegedly results in a nuisance and restricts punitive damages to those instances where the federal or state executive branches bring enforcement (civil or criminal) actions against the operation. N.C. Gen. Stat. §§ 106-701 to -702 (2018). The plaintiffs construe the 2017 and 2018 amendments as specifically and intentionally denying the recovery of punitive damages in the ongoing nuisance suits in violation of the North Carolinian (but not the Federal) Constitution.

Although the statutory text itself does not mention the ongoing nuisance suits, the plaintiffs argue that other legislative evidence indicates the true purpose of the statute, namely limiting plaintiffs’ recovery in the nuisance suits. Specifically, the plaintiffs rely on legislative floor discussions and the 2018 amendment’s statement that its passage was prompted by a recent federal trial court’s misinterpretation of North Carolina’s statutory nuisance scheme. According to the complaint, this violates North Carolina’s constitutional prohibition on “special act[s] or resolution[s] . . . relating to health, sanitation, and the abatement of nuisances,” along with North Carolina’s “law of the land” constitutional provision (comparable to the federal Due Process clause), and the constitutional guarantee of a jury trial.

This is not the first challenge to the constitutionality of limits on punitive damages in North Carolina. In Rhyne v. K-Mart Corp., the state’s Supreme Court analyzed whether the statutory cap on punitive damages to three times the compensatory damages awarded or $250,000 was constitutional. 358 N.C. 160, 594 S.E.2d 1 (2004), aff’g 149 N.C. App. 672, 562 S.E.2d 82 (2002). The plaintiffs in Rhyne brought a number of challenges similar to the plaintiffs here (e.g., law of the land challenge and right to jury trial challenge). The Rhyne court, among other things, upheld the punitive-damages cap, finding that it was a “modification of the common law within the General Assembly’s policy-making authority to define legally cognizable remedies” and that the General Assembly actually had “the power to abolish the recovery of punitive damages” in certain tort actions “because, unlike actual or compensatory damages, plaintiffs [have] no right to the recovery of those damages.” Id. at 170–71, 594 S.E.2d at 9.

This lawsuit threatens the stability of the state’s agricultural industry. Even beyond discussion of the common law and vested rights, the state government’s ability to control punitive damages plays an important role in economic growth. Although punitive damages can serve public policy by “punish[ing] intentional wrongdoing,” Rhyne, 358 N.C. at 166, 594 S.E.2d at 6, they can also be awarded with seemingly no consistency against parties engaging in similar behavior but whom juries fail to treat similarly. Theodore B. Olson, The Parasitic Destruction of America’s Civil Justice System, 47 SMU L. Rev. 359, 366 (1994) (“Punitive damages combine the worst elements of a lottery and a plague by combining little rhyme or reason for who is rewarded and who is punished.”). Such risk can often discourage entrepreneurs from entering in to industries that are prone to frivolous lawsuits, yet are still essential to a state’s economic growth, like extensive agricultural operations. Olson, supra, at 366 (“Because punitive damages are so freakish, capricious, and lottery-like, they discourage the responsible entrepreneur.”). The amendments to the Right to Farm Act, in limiting punitive damages, allow business entities involved in agricultural operations to conduct themselves accordingly, knowing the amount of risk they face by entering into an important state industry like hog-farming.

Plaintiffs’ legal theories have tenuous legal support, but, if accepted, could potentially threaten the day-to-day operations of many agricultural and forestry operations, as will be detailed in a follow-up post.

Sean Placey is a summer associate in the firm’s Greensboro office.

In recent years, farmers and ranchers have been increasingly targeted by animal rights groups trespassing on their properties, stealing farm animals, and other acts of vandalism. The frequency with which undercover animal rights groups infiltrate farms, ranches and other animal enterprises as undercover employees is increasing. In light of this increased activity, farmers and ranchers are searching for new ways to guard their property and protect their animals, especially after a breach of privacy. Although some state legislatures have attempted to regulate the release of video or photographs taken at an animal enterprise without permission, much related legislation has been successfully challenged on constitutional grounds.

For example, in Animal Legal Defense Fund, et al. v. C.L. Butch Otter and Lawrence Wasden, No. 1:14-cv-00104-BLW (D. Idaho Aug. 3, 2015), the court held that legislation which targets journalists or activists, who may be critical of animal enterprises, could violate the constitutional right to freedom of speech. While that ruling protects filming and the subsequent release of a video, there still may be legal remedies that farmers and ranchers can seek against those who enter their operation under false pretenses to harm their animals and business.

The Animal Enterprise Terrorism Act (AETA), 18 U.S.C. § 43, is a federal law that protects against the potential damage and harm caused by members of animal rights groups. The AETA prohibits individuals who have traveled in interstate or foreign commerce, or used or caused to be used the mail or any facility of interstate or foreign commerce, from damaging the property of an animal enterprise, or intentionally putting the owner of an animal enterprise in fear of death or serious bodily injury. An individual found guilty pursuant to the AETA faces a range of penalties, including fines and imprisonment depending on the severity of harm and economic damage caused.

Can farmers and ranchers use the AETA to prosecute those individuals who knowingly accepted employment of an animal enterprise for the purpose of harming that business and the animals therein? To succeed with an AETA claim, farmers or ranchers would have to demonstrate the damage to the animals, 18 U.S.C. § 43(a)(2)(A), or show how undercover employees interfered with or conspired to interfere with the operation. 18 U.S.C. §§ 43(a)(2)(B),(C).

Until these questions are explored in a court of law, best practice on any animal enterprise to prevent loss, damage or harm to animals, equipment and other property is always to thoroughly screen employees and ensure that they are properly trained and supervised.

Sarah Philips is a summer associate in the firm’s Princeton office.

According to the 2017-2018 American Veterinary Medical Association’s Pet Ownership and Demographic Sourcebook, approximately 71.5 million U.S. households own at least one pet, 38% of which are dogs.[1] There is also a large portion of the country that owns non-traditional “pets” – equine, cattle, poultry and other livestock. Pet and livestock owners in urban, suburban and rural areas have a high demand for veterinarian care, but the high barriers to entry in an accredited veterinary school may be limiting animals’ access to medical attention from licensed veterinarians. Further complicating the reality of practicing veterinary medicine is the increase in legal issues resulting from alleged veterinary malpractice suits. Modern pet owners have access to more knowledge about medicine and treatments, and although veterinary medicine cannot guarantee health or long life, pet owners have high expectations.[2] In a time when pets are increasingly accepted as part of the family, pet owners are frequently attempting to hold veterinarians personally liable for the death of their pets.[3]

There are 30 accredited veterinary schools in the United States. Only 27 states are home to veterinary schools; Alabama, California and Tennessee are the only states with multiple veterinary schools.[4] With a limited number of schools, only 10-15% of those who apply to veterinary school are accepted.[5] The geographic location of the school is one of many factors that contributes to the low acceptance rates.[6] According to the Association of American Veterinary Medical Colleges’ 2018-2019 Annual Data Report, a majority of students accepted at any given school are residents of that state.[7] Resident students likely receive discounted tuition and have limited moving costs while those who come from out of state pay higher tuition and can expect high moving costs. Students who do not live in a state with a veterinary school are at a severe disadvantage.[8] Their chances of acceptance at an out-of-state school are much lower than in-state residents, and if they are accepted, the higher cost might deter them from enrolling.[9]

Another deterrent for veterinary school applicants is the rigorous prerequisites for application. Candidates need more than just a high GPA; they need significant experience working with animals in the field.[10] Most opportunities to work with practicing veterinarians in the field are in the form of internships with limited stipends or other financial incentives.[11] For those that cannot afford to take on a low paying internship to get the necessary experience, vet school acceptance becomes less likely.[12]

Of those who are accepted, the average individual will graduate with $143,111 in debt.[13] Females can expect to graduate with more debt, and a lower starting salary at their first job than their male counterparts. For example, in the equine industry, a female equine veterinarian can expect to earn about 16.2% less than her male counterpart.[14]

After graduation from veterinary school, graduates face a different set of challenges. The American Association of Equine Practitioners estimates that 4 out of every 5 practicing equine veterinarians have work-related injuries, but cannot afford to take time off to heal. In addition to work place injuries, many veterinarians struggle with mental health challenges. According to a 2015 CDC survey, 1 in 6 veterinarians have considered suicide,[15] and given their frequent exposure to dying animals and access to controlled substances, this number is quite alarming.

The country has a growing need for healthy, qualified and diverse veterinarians with a variety of specialties. However, encouraging students to take on the challenge of applying to and completing veterinary school is becoming more difficult. In addition to high debt, long hours and salary discrepancies, potential veterinarians may also be deterred by the increasingly frequent malpractice suits accusing them of failing to care for pets appropriately. For individuals who choose veterinary medicine because of their love for animals, alleged malpractice can not only be a financial burden, but an emotional and mental hardship as well. Addressing disparity in cost, opportunities and post-graduate employment options, in addition to providing more legal protection for veterinarians will help potential, well-qualified individuals choose to pursue a career in veterinary medicine.

Sarah Philips is a summer associate in the firm’s Princeton office.

 

[1] Pet Ownership and Demographic Sourcebook, American Veterinary Medical Association (2017-2018 ed.).

[2] Mary Margaret McEachern Nunalee and G. Robert Weedon, Modern Trends in Veterinary Malpractice: How Our Evolving Attitudes Toward Non-Human Animals Will Change Veterinary Medicine, 10 Animal L. 125 (2004).

[3] Id.

[4] Why the Majority of Veterinary School Applicants are Denied, (Mar. 20, 2017), https://bit.ly/2XckYCs.

[5] Id.

[6] Id.

[7] Annual Data Report 2018-2019, Association of American Veterinary Medical Colleges (2019)

[8] Why the Majority of Veterinary School Applicants are Denied, (Mar. 20, 2017), https://bit.ly/2XckYCs.

[9] Id.

[10] Id.

[11] AVMA-AAEP 2016 Survey of Equine Practitioners, (2016).

[12] Lisa M. Greenhill, MPA, EdD, The Market for Veterinary Medical Education, Association of American Veterinary Medical Colleges (Oct. 22, 2018)

[13] Malinda Larkin, Salaries, Debt for New Graduates Continue to Increase, American Veterinary Medical Association (Nov. 28, 2018), https://bit.ly/2NaPXtH.

[14] AVMA-AAEP 2016 Survey of Equine Practitioners, (2016)

[15] David Leffler, Suicides Among Veterinarians Becomes a Growing Problem, The Washington Post (Jan. 23, 2019), https://wapo.st/2AX5uoA.

In a 6-3 decision, SCOTUS rejected the “substantial competitive harm” test, as applied to FOIA’s Exemption 4, established by the D. C. Circuit in National Parks & Conservation Assn. v. Morton, 498 F. 2d 765, 767 (D.C. Cir. 1974) (“the National Parks test”) and adopted by many other appellate courts since that time.  See Food Marketing Institute v. Argus Leader Media, 588 U.S. ____ (2019).  After overcoming the jurisdictional hurdle facing FMI—known as “standing”—the Court undertook a traditional review of the meaning of the statutory text of Exemption 4, as enacted by Congress in 1966.

Exemption 4 shields from mandatory disclosure ‘commercial or financial information obtained from a person and privileged or confidential.’  See, id (quoting 5 U.S.C. §552(b)(4).

With no statutory definition of “confidential,” the Court analyzed the definitions of the term in 1966-contemporaneous dictionaries to determine the “ordinary, contemporary, common meaning” of “confidential” at that time.  At issue in this case, was the confidential nature of sales data from grocery stores participating in the SNAP USDA program, where the data provided to the government was privately guarded and provided to USDA with the understanding that the government would not disclose it to anyone.

The Court’s holding that the National Parks’ test requiring a heightened standard—proof that release of the confidential information would cause the releasing entity substantial competitive harm—was not supported by the plain meaning of the statute and which Congress had left untouched.  This decision is important, not only to the grocers involved in the at-issue USDA program, but to the hundreds of other businesses and industries represented by the multitude of amicus curiae briefs filed in support of FMI’s Petition.  See, e.g., Brief amicus curiae of Retail Litigation Center, Inc., Brief amici curiae of Alliance of Marine Mammal Parks & Aquariums, et al., Brief amicus curiae of Chamber of Commerce of the United States of America, and Brief amici curiae of National Association of Convenience Stores, et al.

Importantly, the Court found “National Parks’ contrary approach [to statutory interpretation] . . . a relic from a ‘bygone era of statutory construction.’”  Now, in additional to protecting confidential information a private entity voluntarily provides to the government, confidential information required to be provided to the government should also be exempt from disclosure pursuant to Exemption 4.

The Court concluded,

At least where commercial or financial information is both customarily and actually treated as private by its owner and provided to the government under an assurance of privacy the information is ‘confidential’ within the meaning of Exemption 4.

At least one tool in the weaponization of FOIA has been removed.

 

Can veterinarians comply with state and federal requirements for the Veterinary Client Patient Relationship and practice via telemedicine?

Nearly, if not all states, have some requirements regarding the establishment and maintenance of a veterinarian-client-patient relationships (VCPR) before the veterinarian can treat an animal owned by a client.  In New Jersey, for example, the regulations (not statute) defines the VCPR as

  1. i) The veterinarian has undertaken to make medical judgments regarding the health of an animal or animals, herd or flock being treated and the need for medical treatment;
  2. ii) The client has retained the services of the veterinarian;

iii) The veterinarian has sufficient knowledge of the animal or animals, herd or flock to initiate at least a general or preliminary diagnosis of the medical condition of the animal or animals, herd or flock;

  1. iv) The veterinarian is available for follow-up treatment; and
  2. v) The veterinarian maintains records on the animal or animals, herd or flock in accordance with N.J.A.C. 13:44-4.9.

N.J.A.C. 13:44-4.1 (b)(1).

FDA requires veterinarians issuing a Veterinary Feed Directive (VFD) (essentially a prescription for treatment of livestock and poultry) to:

(i) Be licensed to practice veterinary medicine; and

(ii) Be operating in the course of the veterinarian’s professional practice and in compliance with all applicable veterinary licensing and practice requirements, including issuing the VFD in the context of a veterinarian-client patient relationship (VCPR) as defined by the State. If applicable VCPR requirements as defined by such State do not include the key elements of a valid VCPR as defined in § 530.3(i) of this chapter, the veterinarian must issue the VFD in the context of a valid VCPR as defined in § 530.3(i) of this chapter.

21 CFR § 558.6(b)(1).

FDA has identified states that do not define the VCPR in the same way that FDA does, and has mandated that veterinarians writing VFD’s must comply with federal standards.  See FDA’s guidance.

Consider the continued contemporaneous evolution of three veterinary concerns regarding the proper care of livestock and poultry in the United States:

  1. The decreasing number of food animal veterinary practitioners, particularly in rural states;
  2. The state licensure requirements for each veterinarian practitioner; and
  3. The FDA requirements regarding the establishment of a VCPR prior to issuance of a VFD.

The decreasing number of food animal practitioners may have to be licensed in multiple states and be compliant with state and federal laws (which in the case of the VCPR may be inconsistent) to provide care to their patients, including medications pursuant to a VFD.  One viable solution to assist these veterinarians and the animals they treat, is telemedicine.  In many situations, veterinarians can comprehensively evaluate the needs of a herd or flock without visiting in person.  While there should be an initial in-person visit, veterinarians, like physicians, should be able to communicate, diagnose and prescribe for remote herds and flocks without a required in-person visit.  State licensing laws may have to be relaxed as a decreasing number of veterinarians engage in large anima/food animal practice.

Arizona has recently relaxed its laws, permitting out of state professionals moving to the state to engage in licensed practice without completing the previously required rigorous state licensing testing.  Historically, states have permitted limited consultation from out of state veterinarians.  Farmers and ranchers would certainly benefit if they could access veterinarians from other states that specialize in food animal medicine, without requiring a physical presence and in-person examination in each state.

Beef producers and packers have been required for years to “identify hazard points and critical points during beef slaughtering, which is a necessary first step toward developing a hazard analysis and critical control point system to control meat contamination by Escherichia coli O157:H7.”  See R. Guyon, et. al, Hazard Analysis of Escherichia coli O157:H7 Contamination during Beef Slaughtering in Calvados, France, J. Food Protection, Vol 64, No. 9, 2001, pp 1341-1345.  While protecting the health of employees and customers is of utmost importance, in addition to the development and implementation of robust HACCP plans that address the former, food producers can help protect themselves from the financial impact of an E. coli outbreak or similar contamination in food products by ensuring that agreements with suppliers, producers, and insurers includes a provision that expressly covers such a situation.  The following summary of a recent case provides guidance for others to use, to avoid similar outcomes.

In April 2011, beef from Meyer Natural Angus (“Meyer”), a Colorado natural beef producer, and processed by Greater Omaha Packing (“GOP”) allegedly tested positive for a dangerous strain of E. coli bacteria.  Meyer Natural Foods LLC v. Greater Omaha Packing Co., Inc. 302 Neb. 509 at *2 (Neb. 2019).

Meyer had a processing agreement with Greater Omaha Packing (“GOP”), pursuant to which GOP would slaughter, process, and fabricate Meyer’s cattle into various beef products.  Id.  The processing agreement also required GOP to maintain property insurance on Meyer property in its possession, with a total value of $1.8 million.  Id. at *5.  Further, Meyer had the option to reject “all products failing to meet the warranties and specifications” contained in the agreement and return said rejected products to GOP and charge GOP its out of pocket expenses of storing and reshipping any products properly rejected by Meyer.  Id. at *6.

On April 25, 2011, Meyer delivered 1600 head of cattle to GOP for slaughter and processing.  After processing, GOP sealed and delivered the beef to Meyer.  Id. at *2.  While on “hold” for testing prior to delivery to stores, 17.5% of the beef tested returned presumptively positive for E. coliId.  Meyer immediately recalled the trucks with the contaminated beef, and sent the beef either to the cooker to be sold at a reduced charge or to a landfill because it was unsafe for human consumption.  Id. at *3.

After the contamination, Meyer sued GOP claiming that GOP was responsible for contaminating the beef and alleging breach of contract, breach of warranty, breach of an indemnity obligation, failure to obtain insurance, and breach of the guarantee.  Meyer moved for partial summary judgment for failure to obtain and maintain property insurance on the value of Meyer’s beef.  The district court denied Meyer’s motion because it found that GOP had a property insurance policy that provided coverage for any non-owned personal property in GOP’s care, custody, and control that GOP “agreed, prior to loss, to insure.”  Id. at *5.  Thus, GOP complied with its contractual obligations.  The district court also granted summary judgment to GOP on Meyer’s remaining claims because Meyer failed to return the rejected products to GOP, as required by the processing agreement.  Meyer appealed.

In March of this year, the Nebraska Supreme Court issued its opinion upholding the district court’s decisions.  On appeal, Meyer argued that the insurance policy’s exclusion of coverage for damage resulting from E. coli constituted a breach of the contractual requirement between Meyer and GOP that GOP maintain property insurance on Meyer’s property in its possession.  Id. at *4.  Nebraska’s Supreme Court concluded that the processing agreement did not contain any language regarding the inclusion of E. coli coverage or the prohibition of exclusions contained within the insurance policy.  Id. at *5.  Thus, GOP did not breach its contract with Meyer by maintaining a policy that excluded coverage for E. coli contamination.  Id.  Nebraska’s Supreme Court also upheld the district court’s conclusion that Meyer was not entitled to damages for GOP’s breach because it failed to return the rejected products to GOP.  Meyer could have avoided the loss caused by GOP’s breach by doing soId. at *6-7.

Meyer also argued that GOP breached its express warranty that the meat it processed would “not be adulterated or misbranded” by contaminating it with E. coli.  Id. at *7.  The Nebraska Supreme Court agreed that GOP breached its express warranty by adulterating the beef with E. coli, but because Meyer failed to return the beef to GOP for full credit as provided for by the processing agreement, it was not entitled to recoveryId. at *8-9.

Lastly, the court rejected Meyer’s negligence claim because there was no evidence presented that demonstrated that GOP was negligent on the days on which GOP fabricated Meyer’s cattle.  Id. at *9.

Takeaways: Review your agreements with third party vendors and ensure that you are requiring those vendors to maintain insurance policies that actually cover the main risks in your business, and be sure to follow the remedies required in your agreements when a breach occurs.

Stayed tuned for more analysis on the court’s conclusion regarding adulterating.