S4168, a bill introduced in the NJ Senate, would require licensure for veterinary technicians.  New Jersey has not required licensure of veterinary technicians or other veterinary assistants, and the New Jersey Veterinary Medical Association has historically been opposed to such requirements.  Instead, regardless of the experience, training and education of veterinary assistants, New Jersey licensed veterinarians are legally liable for any and all acts or omissions by such assistants working under the responsible and/or direct supervision of a licensed veterinarian in the relevant practice.

“Responsible supervision,” defined in existing regulations and the proposed bill, means “that the supervising licensed veterinarian has assumed full responsibility for the actions or omissions of the persons being supervised” and “acts performed in the office of a veterinarian in the physical presence of the veterinarian pursuant to the order, control and full professional responsibility of the veterinarian,” respectively.

“Direct supervision” is not defined in existing laws but is defined in the proposed bill.

‘Direct supervision’ means acts performed in the office of a veterinarian in the physical presence of the veterinarian pursuant to the order, control and full professional responsibility of the veterinarian.

The bill would require an individual seeking licensure as a veterinary technician apply to take a qualifying examination, with “sufficient proof that the applicant is qualified to be licensed as [a] veterinary technician” and to pay appropriate fees.  The bill would permit a licensed technician to “perform any task for which the technician has been trained as delineated in the American Veterinary Medical Association’s essential task list for veterinary technician teaching programs,” under the responsible supervision of a veterinarian.

Both provisions are reasonable, but except for the licensure requirement, do not appear to change the status quo.  In other words, the supervising veterinarian remains the solely liable licensed party.  This may also be the case in other states in where veterinary technicians are licensed, but there are usually comprehensive regulations that govern the practice of veterinary technology in addition to whatever statutory authority exists.

The primary concern here, at this time, is how such a law would impact existing practices that may be struggling with maintaining valued employees who, suffering from compassion fatigue during the pandemic, may have resigned or retired.  And, if veterinary technicians in the future had to be licensed in New Jersey, shouldn’t there be an exemption for those already employed?

Some of the COVID-related issues affecting veterinarians and their practices are described in “Are we in a veterinary workforce crisis?” published in JAVMAnews, Sept 15, 2021,

Many practices . . . have struggled with losses of staff members.  Whether a team member became sick, had to quarantine, or needed to stay home for childcare or other personal reasons, operating with a suboptimal number of employees only made a challenging situation worse.

As the article further describes, these COVID-related workplace issues are compounded by the relatively high turnover of staff, including veterinary technicians, in veterinary practices as compared with other health professions.

The AVMA offers members solutions to manage “[t]he stress and pressure veterinary professionals are dealing with today [which are] both real and prevalent.

The attorneys in the Animal Law Practice Group at Fox Rothschild are experienced in representing veterinarians and veterinary practices, and can serve as an additional resource for any corporate matters that may arise, including practice management, entity formation, mergers and acquisitions, financing, securities, ownership transition and exit strategy.

Labeling of meat and poultry products has been the subject of numerous lawsuits, in which labels claiming products are, for example, “natural,” “humanely-raised,” “antibiotic-free,” are alleged to be fraudulent, amongst other allegations.  With the expansion of meat and poultry products produced from cultured cells derived from animals instead of the traditional methods of food production from harvesting of livestock and poultry raised for food, animal agriculture producers have raised concerns about confusion resulting from labeling cell-derived products as “meat” or “poultry.”

For those interested in commenting (who have not already done so), see Advance notice of proposed rulemaking.

USDA-FSIS has extended the comment period for its proposed rule to December 3, 2021.  As reported on the federal website, 1,085 comments have been received.

FSIS is requesting public comment on 14 specific issues, including:

1. Should the product name of a meat or poultry product comprised of or containing cultured animal cells differentiate the product from slaughtered meat or poultry by informing consumers the product was made using animal cell culture technology? If yes, what criteria should the agency consider or use to differentiate the products? If no, why not?

2. What term(s), if any, should be in the product name of a food comprised of or containing cultured animal cells to convey the nature or source of the food to consumers? (e.g., “cell cultured” or “cell cultivated.”)

a. How do these terms inform consumers of the nature or source of the product?

b. What are the benefits or costs to industry and consumers associated with these terms?

c. If meat or poultry products comprised of or containing cultured animal cells were to be labeled with the term “culture” or “cultured” in their product names or standards of identity (e.g., “cell culture[d]”), would labeling differentiation be necessary to distinguish these products from other types of foods where the term “culture” or “cultured” is used (such as “cultured celery powder”)?

3. If a meat or poultry product were comprised of both slaughtered meat or poultry and cultured animal cells, what unique labeling requirements, if any, should be required for such products?

4. What term(s), if used in the product name of a food comprised of or containing cultured animal cells, would be potentially false or misleading to consumers? For each term, please provide your reasoning.

5. What term(s), if used in the product name of a food comprised of or containing cultured animal cells, would potentially have a negative impact on industry or consumers? For each term, please provide your reasoning.

6. Should names for slaughtered meat and poultry products established by common usage (e.g., Pork Loin), statute, or regulation be included in the names or standards of identity of such products derived from cultured animal cells?

a. If so, is additional qualifying language necessary? What qualifying terms or phrases would be appropriate?

b. Do these names, with or without qualifying language, clearly distinguish foods comprised of or containing cultured animal cells from slaughtered products?

7. Should terms that specify the form of meat or poultry products (such as “fillet”, “patty”, or “steak” be allowed to be included in or to accompany the name or standard of identity of foods comprised of or containing cultured animal cells?

a. Under what circumstances should these terms be used?

b. What information would these terms convey to consumers?

8. Should FSIS establish a regulatory standard of identity under its authorities in the FMIA and the PPIA (21 U.S.C. 607(c) and 457(b)) for foods comprised of or containing cultured animal cells?

a. If so, what would be the standard and how might compliance with the standard be verified?

b. If so, what would be the labeling terminology for products that do and do not meet a formal standard of identity? What would be the anticipated categories of use? For example, mechanically separated poultry that does not meet the standards of identity outlined in 9 CFR 381.173 may be diverted for production in broths and bases, as well as reaction flavors, i.e., flavors produced by the heating of the protein source in the presence of a reducing sugar.

c. If so, what are the benefits and costs to industry if the standard of identity is established? Please provide quantitative and qualitative feedback in your response and explain the basis of any quantitative estimates.

d. If so, what are the consumer benefits and costs to the standard of identity recommended?

9. What nutritional, organoleptic (e.g., appearance, odor, taste), biological, chemical, or other characteristics, material to consumers’ purchasing and consumption decisions, vary between slaughtered meat or poultry products and those comprised of or containing cultured animal cells?

10. Should any of the definitions for “meat”, “meat byproduct”, or “meat food product” found in 9 CFR 301.2 be amended to specifically include or exclude foods comprised of or containing cultured animal cells?

11. Should any of the definitions for “poultry product” or “poultry food product” found in 9 CFR 381.1 be amended to specifically include or exclude foods comprised of or containing cultured animal cells?

12. Should FSIS-regulated broths, bases, and reaction flavors produced from cultured animal cells be required to declare the source material in the product name, ingredient sublisting, or elsewhere on the label?

13. Should the presence of cultured animal cells in further processed products regulated by FSIS, such as a lasagna made with cell cultured beef cells as an ingredient, be qualified on the product label? If so, how should this be qualified?

14. What label claims are likely to appear on FSIS-regulated products comprised of or containing cultured animal cells? Should FSIS develop new regulations or guidance on such claims to ensure they are neither false nor misleading?

Recently introduced Senate bill 4058 would reintroduce third parties into the enforcement, seizure and relocation of companion animals based on alleged acts of animal cruelty after the legislature successfully ousted the quasi-governmental entity, the New Jersey Society for the Protection of Animals from enforcing animal cruelty laws.  Instead the legislators placed that authority squarely with County Prosecutors who can also delegate that authority to Municipal Prosecutors.

There are four new proposed sections in this bill (Sections 4, 5, 6, 7) which seem to be entirely redundant of existing Section 3 (Section 7 of P.L. 2017, c. 189) and which itself disproportionately impacts those of lower socioeconomic status, for whom payment for room, board and veterinary care at an animal shelter or other facility would not be affordable and therefore forfeiture of a pet, even before cruelty charges were proven, would be the only viable option.

This new sections define “animal care agency” to include an animal rescue organization, a humane society or other organization with temporary custody of an animal and “Enforcement agency” to include any organization . . . involved in the monitoring of animal welfare and animal cruelty violations.”

None of these entities are required to comply with regulations requiring sanitary operations of animal facilities which includes kennels, pet shops, shelters and pounds, unless animal care agency, as defined in the proposed bill would be included under the definition of “Pound” which means “any establishment of the confinement of dogs or other animals seized either under the provisions of N.J.S.A. 4:19-15.16 or otherwise.”  NJSC8:23A-1.1 (emphasis added).

Animals can be confiscated before any hearing is held.  The law would require that a hearing should be scheduled no later than 30 days after the date on which a complaint is filed with the court, but if the court fails to hold a timely hearing, it will not affect the disposition of the animal, and the costs of care would continue to accrue.  The accused has no access to or right to provide for an independent veterinary examination of a seized animal.  Another licensed veterinarian would be permitted to perform whatever veterinary procedures s/he deemed necessary, including euthanasia.  Certainly, animals should be provided with necessary veterinary care, but there can be significant disagreements amongst veterinarians about what constitutes necessary care in any given situation.  Regardless of the outcome of the case, the owner must reimburse the seizing or holding entity for the cost of that care, even if the prosecutor fails to prevail in court.

“If a person liable for the reasonable costs of care pursuant to this section is found not guilty of the allege criminal animal cruelty offense that led to the seizure of the animals, and if the person has made timely payments of the reasonable costs of care pursuant to this section, the person shall have the right to immediately repossess the person’s animal and to be reimbursed by the animal care agency for all of the reasonable costs of care, except those related to necessary veterinary care, that were paid by the person to the animal care agency.”  New Section 6(h)(emphasis added).

If the person cannot afford to pay for the reasonable costs of care during the pendency of the case, the person’s animal would be considered forfeited.

This bill suffers from at least these deficiencies:

  1. It would reintroduce non-profit organizations back into the animal cruelty enforcement scheme and would permit care provided to animal seized from an alleged cruel situation to a totally unregulated entity;
  2. It exacerbates the existing disparate treatment of pet owners with lower socio-economic status who may have failed to provide “necessary veterinary care” no matter how minor;
  3. It fails to differentiate between truly egregious acts of animal cruelty from those that are either frivolous or outdated;
  4. It fails to provide an accused access to due process by prohibiting access to seized animals by the owner or an independent veterinarian.

According to Animal Legal Defense Fund, the U.S. District Court for the Southern District of Ohio has recognized hippos as legal persons for the first time in the United States, because a Community of Hippopotamuses Living in the Magdalena River is a litigant in a lawsuit filed in Columbia and the District Court granted a discovery application filed by ALDF to issue subpoenas to expert witnesses to testify “in regard to . . . [their]  knowledge and impressions about managing the fertility of the Community of Hippopotamuses Living in the Magdalena River using the nonlethal immunocontraceptive porcine zona pellucida (PZP).”

While it is clear from ALDF’s press release, that it intends to argue that the legal status of animals has changed as a result of the Court’s granting of this application, the following demonstrates the flaws in such an argument:

First, the Court order includes no declaration or holding that animals or more specifically, the Community of Hippopotamuses Living in the Magdalena River, are legal persons or interested persons.

Second the Court ordered “Counsel for Applicant is authorized to issue subpoenas in substantially similar form to those attached to the Declaration of Ariel Flint as Exhibits A and B.”  Those subpoenas include no discussion or declaration or holding that animals or more specifically, the Community of Hippopotamuses Living in the Magdalena River, are legal persons or interested persons.

Third, ALDF bases its conclusion that the Court recognized animals as persons, because, as litigants in the Columbian lawsuit they are litigants and therefore, according to Supreme court precedence are “interested persons.”  This conclusion is erroneous because it ignores ALDF’s  admission that such a conclusion is limited by “courts [which] have recognized foreign litigants as ‘interested persons’ for the purpose of obtaining Section 1782 discovery even if they would not be recognized as persons in our domestic legal system for other purposes . . .”   D.I. 1 (Application), pp. 7-8 (emphasis added).  The Supreme Court warns against “engag[ing] in comparative analysis to determine whether analogous proceedings exist here [because] [c]omparatives of that order can be fraught with danger.” Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241, 263 (2004).

Fourth, the Supreme Court, in Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241, 265 (2004), “in determining whether a discovery order should be granted in a particular case . . . a district court could consider whether the § 1782(a) request conceals an attempt to circumvent . . . other policies of . . . the United States.”  Current U.S. policy does not grant personhood status to nonhuman animals.  If this application were not filed as an ex parte application, the goal of ALDF’s application may have been questioned.

The application was filed on October 15, 2021, as an ex parte application without notice to the defendant or other interested parties, and the Order was granted the same day.  ALDF argues that its ex parte application is warranted because ‘[t]he Community may require the Witnesses’ testimony as soon as November of this year.”  D.I. 1 (Application), p. 5 (emphasis added).  “[T]he practice of ex parte undermines the impartiality of the court . . . [because] [t]he court has a limited view of the situation with only input from one party to the conflict.”  In re Beluga Shipping GMBH & Co. v. Suzlon Energy LTD., 2010 WL 3749279, at *5 (N.D. Cal. Sept. 23, 2010).  Despite one conclusory statement that the witnesses may be required to testify by November, it is unclear whether ALDF has met its burden to overcome the otherwise required notice to nonmoving parties.

Defendant in the underlying Columbian case, Ministerio deAmbiente y Desarrollo Sostenible et al could file a motion to quash the subpoenas ordered by the Court.  In that event, it is unclear whether other interested parties could file amicus briefs or a motion to intervene.  Regardless, we should expect ALDF’s conclusion that animals have been granted personhood status to form the basis of existing and future lawsuits, as well as support for legislation related to the legal status of animals.

Most of you should already be aware of concerns about the spread of foreign animal disease, African Swine Fever (ASF), into the United States.  for those who need an update:

ASF has never been identified in the US, but it is coming closer, having been recently found in swine in the Dominican Republic and Haiti.

Since at least 2018, USDA has taken many steps to enhance education and surveillance and testing plans, including at least:

Federal Order: APHIS Suspends the Interstate Movement of Live Swine, Swine Germplasm, Swine Products, and Swine Byproducts from Puerto Rico and the U.S. Virgin Islands September 2021

Swine Hemorrhagic Fevers: African and Classical Swine Fever Integrated Surveillance Plan May 2019

A qualitative assessment of the likelihood of ASF virus entry to the United States. March 2019

A non-animal origin feed ingredient risk evaluation framework. March 2019

A literature review of non-animal origin feed ingredients and the transmission of viral pathogens of swine., March 2019

ASF Emerging Risk to Animal Health – Notice,  August 2018

Chinese Provinces Reporting ASF – Map, February 26, 2019

USDA-Industry ASF Surveillance and Response Points September 2018

USDA-Industry ASF Prevention Points September 2018.

Preparedness and response plans are available on USDA’s website.

USDA has partnered with State animal health officials, trade associations, and farmers and ranchers to implement its enhanced preparedness and response plans-a requirement for a successful outcome.

The most recent step has been a submission of a “dossier to the World Organisation for Animal Health (OIE) detailing the actions taken to finalize a new African Swine Fever (ASF) protection zone in Puerto Rico and the U.S. Virgin Islands.”  While ASF has not been diagnosed in Puerto Rico or the U.S. Virgin Islands, additional protective measures have been implemented to help prevent the entry of the disease to those jurisdictions.

All those involved in the raising and marketing of swine in the US should update their biosecurity protocols, working with trusted veterinary and industry partners, to protect livestock from exposure to this foreign animal disease.

The Center for Biological Diversity and the Natural Resources Defense Council submitted a petition for rule-making to the Secretary of the U.S. Department of Health and Human Services and the Centers for Disease Control and Prevention and submitted a similar petition to the Secretary of the U.S. Department of the Interior and the U.S. Fish and Wildlife Service to ban trade in wild mammals and birds to and from the U.S.

The petitions request prohibitions on the importation (and possibly exportation) of wildlife under a precautionary principle, to prevent the outbreak of another zoonotic disease that could result in a pandemic.  Despite the lack of evidence of an intermediary animal species that spread SARS-CoV-2 from bats to people, the petitions base their requests for prohibitions based, in part, on the spread of COVID-19.  The spread of COVID-19 has been largely based on spread from and between people, so reliance on this pathogen is misplaced.  In fact, except for spread on mink farms, believed to have started as a reverse zoonosis (spread from people to animals), AVMA and international and federal animal health officials have advised that animals are not a known source of the spread of SARS-CoV-2 to people.

The following quote from the petitions, citing to other sources, is devoid of evidence

‘1.7 million currently undiscovered viruses are thought to exist in mammal and avian hosts’ of which ‘631,000-827,000 could have the ability to infect humans.’

CDC Petition, at page 6 (citing IPBES (2020) Workshop Report on Biodiversity and Pandemics of the Intergovernmental Platform on Biodiversity and Ecosystem Services) (emphasis added).

If undiscovered, how can the number of these viruses be quantified or qualified?

The reliance on “One Health” and prohibitions on animal importation, ownership and use based on concerns about zoonotic diseases is not limited to these petitions.  Many animal rights organizations are relying on similar theories to advance their agendas.

Of course, there are a number of zoonotic diseases in wildlife residing in the United States.  The best method of housing to protect livestock from exposure to such potentially-infected wildlife, is to employ indoor housing with rigorous biosecurity controls.  Many animal rights organizations are opposed to those biosecure housing facilities, and instead, some have advanced proposals to prohibit the use of caging to house livestock, at least in the European Union.

Instead of overarching prohibitions, I propose that federal and state laws continue to permit importation and exportation of all animals, where such conduct is based on the identification of species and location-based risks and after implementations of reasonable and science-based testing where appropriate.

According to the USDA OIG Audit Report 33601-0003-23, previously available online, APHIS Animal Care (AC) had agreed that it would review barrier issues and may require reporting of escapes and attacks.  However, Audit Report 33601-0003-23, originally published on March 12, 2021, has been removed from the website, and is reportedly “undergoing a review pursuant to OIG’s Information Quality Guidelines. The report will be re-posted upon conclusion of OIG’s review.”

The requirements for exhibitors, in part, include requirements to “minimize possible harmful risks to animals and the public during public exhibition.” 9 C.F.R. § 2.131 (a)-(e). “Specifically, any animal must be handled to minimize the risk of harm to the animal and to the public, with sufficient distance and/or barriers between the animal and the general viewing public to assure the safety of animals and the public.” 9 C.F.R. § 213l (c)(l).

In 2010, OIG audited APHIS AC evaluated APHIS’ controls over the licensing of exhibitors of exotic animals and the agency’s efforts to safeguard both the animals and members of the public who visit exhibitor facilities. The audit found that

APHIS inspectors either did not identify safety-related deficiencies during inspections, or did not document the conditions and require corrective actions due to the lack of periodic onsite supervision . . . [and] recommended that APHIS issue clear regulations and guidance that define what constitutes a sufficient public barrier and require exhibitors to report all escapes and attacks involving dangerous animals to APHIS’ [animal care inspectors]. As part of Audit Report 33601-0003-23, OIG followed up on the recommendations from the June 2010 audit, with emphasis on the recommendations relating to public safety.

The recommendations and agency responses as previously published, are described, in part below.  Whether the current OIG review will result in amendments to the report will be determined upon final publication.

Recommendation 1:

Conduct a study to determine if there continues to be an issue with public barriers at licensed exhibitors with potentially dangerous animals. If the results indicate an issue, determine and implement the necessary corrective actions (i.e., new regulations, training, and/or guidance).

Agency Response to Recommendation 1:

APHIS agreed to conduct a study to determine if public barriers at licensed exhibitors create a potential hazard to people or animals.  “As part of this review, barriers will be measured for height and distance from primary enclosures and photographed; then submitted to the Animal Care species specialist team for assessment and evaluation.” Those studies will occur at the 19 facilities that OIG had included in its audit, but the identity of those facilities was not disclosed.

Recommendation 2:

Consult with the Office of General Counsel (OGC) to determine if APHIS has the authority under the AWA to require exhibitors to report animal escapes and/or attacks to APHIS. If APHIS does have the necessary authority, take action to ensure exhibitors report animal escapes and/or attacks to APHIS.

Agency Response to Recommendation 2:

The agency agreed to consult with the OGC and based on the legal determination of its authority, would promulgate regulations or provide guidance to stakeholders of its requirements to require certain reporting.

The remaining recommendations related to the agency’s internal procedures and frequency of inspection of licensed exhibitors.

More to come when the report is republished.

 

U.S. Cattlemen’s Association (USCA) submitted a Petition for Rule Making to USDA Food Safety and Inspection Service (FSIS) on Feb. 9, 2018 requesting “that FSIS exclude products not derived directly from animals raised and slaughtered from the definition of ‘beef’ and ‘meat.’”

Harvard Law School Animal Law and Policy Clinic (Harvard) submitted a Petition for Rule Making to FSIS on Jun 9, 2020 requesting “that FSIS adopt a labeling approach for ‘cell-based’ meat and poultry products that respects First Amendment commercial speech protections.”

FSIS issued its responses to these petitions, dated September 16, 2021. FSIS intends to address the issues raised in USCA’s petition related to labeling of products using animal cell culture technology through the advance notice of proposed rulemaking (ANPR) the agency published on September 3, 2021.  That ANPR solicits “comments and information regarding the labeling of meat and poultry products made using cultured cells derived from animals under FSIS jurisdiction [which] FSIS will use . . .to inform future regulatory requirements for the labeling of such food products.”

FSIS denied USCA’s request to add the terms “meat” and/or “beef” to the agency’s Policy Book, and clarified that FSIS does not have the “jurisdiction to regulate the labeling of products derived from sources that are not amenable to the FMIA or PPIA, such as plant-based products.”

FSIS also encouraged Harvard to submit comments to the ANPR which the agency expects to “expand FSIS’ understanding of cell-based products and help inform future rulemaking to establish labeling requirements and will help inform FSIS’ approach to the issues you raised in your petition.”

For those with information to help inform FSIS’ policy and regulations, there is a 60-day period for comment on the ANPR, which is available at the FSIS website.

In June 2021, the USDA Office of Inspector General published its report, Animal Care Program Oversight of Dog Breeders, evaluating Animal and Plant Health Inspection Service’s (“APHIS”) controls to ensure compliance with the Animal Welfare Act (“AWA”) and following up on the agency actions in response to a previous 2010 audit.

While this audit focused on the agencies oversight of dog breeders, the three recommendations the agency agreed to comply with, will impact all AWA licensees and registrants.  Those recommendations include:

Recommendation 1.  APHIS should ensure the data reliability and security issues with ACIS do not persist in SalesForce and eFile.

Recommendation 2.  Develop and implement guidance, policies, and procedures to ensure a consistent response to complaints and to ensure the response is sufficiently documented.

Recommendation 3.  Provide inspectors training on the process of responding to complaints, documenting actions taken, and the reason for those actions.

Regarding Recommendation 1.  Anyone who has used USDA’s Animal Care database has been frustrated about its inaccessibility at times, and lack of reliability, so, to the extent the database is publicly available, it should be reliable and functional.

Regarding Recommendation 2 and Recommendation 3, all registrants and licensees may have cause for concern about the agencies processes of responding to complaints, because of the weaponization of APHIS AC enforcement of the AWA by animal rights activists.  Those activists characterize citations on inspection reports as violations of the AWA.  They are not.  However, those entities file complaints with APHIS AC claiming that the registrants/licensees must be fined the maximum fine because they have violated the AWA.  Citations are not determinations that a facility has violated the AWA.  However, now the agency appears to be establishing additional protocols following receipt of complaints.

Should such protocols be subject to APA mandated rule promulgation and response before implementation?

If the process falls short of what is considered acceptable by activists, the agency should expect legal consequences.

If the process falls short of what is considered acceptable by licensees/registrants, the agency might expect legal consequences.

What is clear is that any such challenge diverts agency funding from actually enforcing the AWA to defending its policies and procedures.