The Food Animal Residue Avoidance Databank (FARAD) recently provided guidance to small ruminant producers and their veterinarians in an article titled “Extralabel drug use (ELDU) in small ruminants” in JAVMA, Vol 253, No. 8, Oct. 15, 2018, pp 1001-1009.

“FARAD is a university-based national program that serves as the primary source for scientifically-based recommendations regarding safe withdrawal intervals of drugs and chemicals in food-producing animals. As such, FARAD is a key resource for protection of our nation’s food supply, including meat, milk and eggs, against accidental contamination of animal-derived foods with violative residues of drugs, pesticides or other agents that could compromise food safety.”

FARAD regularly provides guidance to the food animal producing industry and veterinarians regarding “the use of therapeutic drugs, pesticides and other agents that improve overall animal health and promote safe, efficient and humane production practices.”

The purpose of its latest digest, as stated, “was to provide US veterinarians guidance regarding ELDU in small ruminants. The lack of FDA-approved drugs for sheep and goats frequently necessitates ELDU in those species. When the FDA approves a drug for use in a particular species, it establishes a tolerance or that drug in the various tissues or products (eg, milk or eggs) of that species that might be consumed by people. When a drug not labeled for use in a small ruminant is administered in an extralabel manner, there is a zero tolerance for residues of the parent drug or its metabolites in the edible tissues or products of treated animals, and detection of the parent drug or metabolites in any product marketed for human consumption is considered a violation and subject to regulatory action. Given the lack of tolerance and pharmacokinetic and tissue depletion data for many drugs administered in an extralabel manner to small ruminants, extended meat and milk WDIs are generally required to ensure that drug residues are undetectable. Veterinarians need to be cognizant of the requirements for legal ELDU in food-animal species to safeguard the human food supply while continuing to promote the health and welfare of small ruminants.”

As a former owner of a veterinary large animal practice in which 50% of my patients were small ruminants (goats, sheep, alpaca and llama), it was imperative to be able to prescribe or administer drugs in an extralabel manner to provide humane care and prevent animal suffering.

Extralabel use means actual use or intended use of a drug in an animal in a manner that is not in accordance with the approved labeling. This includes, but is not limited to, use in species not listed in the labeling, use for indications (disease or other conditions) not listed in the labeling, use at dosage levels, frequencies, or routes of administration other than those stated in the labeling, and deviation from the labeled withdrawal time based on these different uses.  21 CFR 530.3.

Some of these uses have included medications added to commercial feeds, that are now governed under the Veterinary Feed Directive that FDA enforces for use in major, but not minor species.

According to guidance from FDA, “many commercial medical feeds that require a VFD are not approved for use in minor species,” defined by FDA as all species other than cattle, horses, swine, chickens, turkeys, dogs, and cats.  Compliance Policy Guide Sec. 615.115 Extralabel Use of Medicated Feeds for Minor Species.  A veterinarian may consider ELDU of medicated feed in minor species if:

There are no approved treatment options available;

The health of the animals is threatened; and

Failure to treat the animals would result in suffering or death.

The veterinarian must provide a written recommendation that includes the medical rationale for ELDU of medicated feed.

Before a veterinarian can provide such professional guidance, a valid veterinarian-client-patient relationship (VCPR) must exist.  While state laws govern the practice of veterinary medicine, including such relationships, FDA has inserted itself in the equation by identifying which states do not require the elements of a VCPR that FDA considers sufficient for the purposes of enforcing its Veterinary Feed Directive and other federal laws.

These multilayered state and federal laws can be difficult for veterinarians and small ruminant producers to decipher—hence the necessity of FARAD and other agencies to provide more specific guidance.

In Justice v. Gwendolyn Vercher, Case No. 18CV17601 (Oregon Judicial Department, Washington County Circuit Court, Twentieth Judicial District, Sept. 17, 2018) the Court dismissed a complaint filed by the Animal Legal Defense Fund, for Justice, the Plaintiff, a quarter horse.  The Court held that an animal, including the equine Plaintiff, lacked the legal capacity to sue, pursuant to Oregon Rule of Civil Procedure (ORCP) §21(A)(4) and for failure to state facts sufficient to constitute a claim, pursuant to ORCP 21(A)(8).

The court finds that a non-human animal such as Justice lacks the legal status or qualifications

necessary for the assertion of legal rights and duties in a court of law . . . Justice is not the real party in interest. There are profound implications of a judicial finding that a horse, or any non-human animal for that matter, is a legal entity that has the legal right to assert a claim in a court of law. Such a finding would likely lead to a flood of lawsuits whereby non-human animals could assert claims we now reserve just for humans and human creations such as business and other entities. Furthermore, non-human animals are incapable of accepting legal responsibilities.

The Court observed that an appellate court or the state legislature might determine that public policy regarding this issue should permit such legal actions from animals, perhaps opening the door for further uncertainty through an appeal or legislative action.

The Court declined to award attorneys’ fees and costs to the defendant that was dragged into this seemingly frivolous lawsuit.

This is not the first time—or likely the last—activist nonprofit organizations have filed lawsuits on behalf of animals, in attempts to elevate their status to those of humans.  The Nonhuman Rights Project, Inc. (NHRP) filed a number of failed attempts to apportion personhood rights to certain animals, The Nonhuman Rights Project, Inc., on Behalf of Tommy v. Lavery, 100 N.E.3d 846 (N.Y. 2018); The Nonhuman Rights Project, Inc. ex rel. Tommy v. Lavery, 54 N.Y.S.3d 392, 394 (N.Y. App. Div. 2017), leave to appeal denied sub nom. The Nonhuman Rights Project, Inc., on Behalf of Tommy v. Lavery, 100 N.E.3d 846 (N.Y. 2018); The Nonhuman Rights Project, Inc. ex rel. Kiko v. Presti, 3 N.Y.S.3d 698 (N.Y. App. Div. 2015); The Nonhuman Rights Project, Inc., ex rel. Kiko v. Presti, 999 N.Y.S.2d 652 (App. Div. 2015); Article 70 of CPLR for a Writ of Habeas Corpus, The Nonhuman Rights Project, Inc. ex rel. Hercules & Leo v. Stanley, 16 N.Y.S.3d 898 (N.Y.  Sup. Ct. 2015); The Nonhuman Rights Project, Inc. v. Stanley, 2015 WL 1812988 (N.Y. Sup.); see also, Cetacean Community v. Bush, 386 F.3d 1169 (9th Cir. 2004); Naruto v. Slater, 2018 WL 1902414 (9th Cir. April 23, 2018); Tilikum v Sea World Parks & Entertainment, 84 2 F.Supp.2d 1259 (S.D. Cal. 2012).

NHRP filed another petition, The Nonhuman Rights Project, Inc. v. R.W. Commerford & Sons, Inc., No. 17-5009822, slip op. (Conn. Super. Ct. Dec. 26, 2017), seeking personhood rights through a writ of habeas corpus for three elephants in Connecticut owned by R.W. Commerford & Sons, Inc. (the “Commerford Zoo”) on November 13, 2017.  Long before the scheduled status conference, which was to be held on February 27, 2018, the Court filed a Judgment of Dismissal and related Memorandum of Decision on December 26, 2017, finding that the petitioner lacked standing under the “next friend” theory.  Id.

The burden is on the next friend clearly to establish the propriety of his status and thereby justify the jurisdiction of the court . . . [and holding that] [b]ecause the petition has failed to allege that it possesses any relationship with the elephants, the petitioner lacks standing.

The Court also found the petition “wholly frivolous on its face in legal terms,” stating:

even if the petitioner here had standing, resolution in its favor would require this court to determine that the asserted liberty interests in its petition are assured by statute, constitution, or common law, i.e., that an elephant is a person for the purposes of this land’s laws that protect the livery and equality interests of its persons . . . [and] [b]ased on the law as it stands today, this court cannot so find.

Recently, the NHRP filed another writ of habeas corpus in Orleans County, New York, The Nonhuman Rights Project, Inc., on behalf of Happy v. Breheny, No. 18-45164 (N.Y. 2018) “demanding recognition of [an elephant named] Happy’s legal personhood and fundamental right to bodily liberty as well as her transfer to an elephant sanctuary.”  Happy has been housed at the Bronx Zoo since around 1977.  In the Memorandum of Law filed in support of its application, NHRP did not cite to the decision in R.W. Commerford & Sons, Inc.

Circuit Judge Smith’s concurring opinion in Naruto v. Slater, 2018 WL 1902414 (9th Cir. April 23, 2018) also discusses restrictions on “next friend” or “third party” standing, stating:

The limitations on the ‘next friend’ doctrine are driven by the recognition that ‘it was not intended that the writ of habeas corpus should be availed of, as matter of course, by intruders or uninvited meddlers, styling themselves as next friends’ . . . Indeed, if there were no restrictions on ‘next friend’ standing in federal courts, the litigant asserting only a generalized interest in constitutional governance could circumvent the jurisdictional limits of Art. III simply by assuming the mantle of ‘next friend.’

More to come on these latest legal proceedings and other continued attempts to change the legal status of nonhuman animals.

In a bulletin published on September 25, 2018, USDA announced “four overarching goals for advancing animal disease traceability to protect the long-term health, marketability and economic viability of the U.S. livestock industry.”

Advance the electronic sharing of data among federal and state animal health officials, veterinarians and industry; including sharing basic animal disease traceability data with the federal animal health events repository (AHER).

Use electronic ID tags for animals requiring individual identification in order to make the transmission of data more efficient;

Enhance the ability to track animals from birth to slaughter through a system that allows tracking data points to be connected; and

Elevate the discussion with States and industry to work toward a system where animal health certificates are electronically transmitted from private veterinarians to state animal health officials.

Animal disease traceability has been a long-term goal of state and federal officials, as well as farmers and ranchers interested in protecting their livestock from the spread of contagious, infectious diseases.

A State-Federal Working Group reviewed the existing program and potential future goals, the results of which are published in a Summary of Program Reviews and Proposed Directions, dated April 2018.

The working group expressed general concerns about, in part: (1) confidentiality and security of information systems; (2) producer liability based on disease transmission, and animal and human injury resulting from applying and reading identification tags; (3) cost; (4) lack of proportionality of scale for small compared to large producers; and (5) beef feeder cattle under versus over the age of 18 months; practicality of identifying livestock at birth premises; flexibility, among other issues.

There was particular concern over electronic ID (EID), related technology and costs:

  • “If radio frequency ID (RFID) is to be utilized, the establishment of standards, including one technology (low-frequency (LF) vs ultra-high frequency (UHF)) is critical. Most stakeholders supported a dual technology tag as an interim measure.
  • The infrastructure must be in place to support the transition to EID.
  • Cost remains the primary concern of producers and representatives from other sectors of the industry for both the reader infrastructure and tags; however, the use of EID would provide substantial savings due to the increased efficiency associated with the technology.
  • Availability and use of electronic forms, in particular, electronic ICVIs. Obtaining records electronically would decrease cost and improve the completeness and accuracy of the data. Additionally, retiring animal numbers at slaughter would be feasible, where it has been cost-prohibitive with visual-only tags.
  • A cost analysis on metal NUES tags to show the full cost of tags when working cattle to manually record ID numbers (labor, stress and shrink, injury, etc.), as well as their limitations relative to traceability, e.g., tag retirement, to more accurately illustrate the 14 costs of both visual-only and EID tags.
  • Proportionally higher implementation costs for smaller producers, who sell direct to consumers and believe their livestock are already highly traceable.”

USDA’s current goals build on its final rule adopted on January 9, 2013, “Traceability for Livestock Moving Interstate,” which requires cattle, bison, horses and other equine species, poultry, sheep and goats, swine, and captive cervids moving interstate to be officially identified and accompanied by an interstate certificate of veterinary inspection (ICVI) or other documentation, with limited exemptions.

The proposals from the Working, as published in the report, include:

  1. Maintain the policy that traceability regulations do not apply to interstate movements to a custom slaughter facility in accordance with Federal and State regulations for preparation of meat.
  2. Maintain the current population of livestock covered by the official ID requirements. The ADT rule will continue to include:
  • All dairy
  • Beef cattle > 18 months of age
  • All rodeo and exhibition cattle.
  1. Cattle should be identified to their birth premises , thus the official ID records must provide birth premises information for the animal. APHIS should revise Federal regulations to include interstate commerce and the appropriate authority – either USDA or State officials – should establish regulations that trigger official ID requirements at:
  • Change of ownership
  • First point of commingling
  • Interstate movement (may reflect no sale and no commingling).
  1. The United States must move toward an EID system for cattle with a target implementation date of January 1, 2023. A comprehensive plan is necessary to address the multitude of very complex issues related to the implementation of a fully integrated electronic system. A specialized industry-lead task force with government participation should develop the plan, with a focus on several key objectives (see report for specifics).
  2. APHIS and States must make the advancement of electronic records an immediate high priority. The enhancements recommended below would increase the ease of collecting data in a standardized format and subsequently provide access to accurate data in near real-time, greatly enhancing the effectiveness of U.S. traceability and disease control programs. (See report for specifics).
  3. Enhanced enforcement of existing regulations.
  4. APHIS should continue the efforts of the State/Federal Slaughter Plant Working Group to improve the rates of ID collection and correlation at slaughter.
  5. APHIS and States need to establish a partnership with industry that would enable utilization of private information systems for disease surveillance and response events. Ideally, establish a communication protocol between the private systems and an animal disease traceability portal that would allow producer data to be maintained in the private systems and made available to animal health officials only when needed for animal disease control and response. Producers would have the choice to maintain their data in a private or public system. APHIS and the States would continue to protect producer data held in their systems and use it only for disease response. (See report for additional details).
  6. Review and update existing exemptions for official identification requirements.
  7. Concerns about electronic ICVIs and other electronic movement records are a high priority . . . Stakeholders support consistent requirements; however, the State of destination should be responsible for determining the documents appropriate for collection and compliance of key traceability components for livestock arriving to that State.
  8. Address lack of uniformity of state importation regulations. 9 CFR Part 86 should provide the national standards for official ID and movement documentation. APHIS should continue revision of the regulations to increase standardization considering that eliminating various exemptions will lessen confusion and State differences.
  9. The working group feels there is value in considering a standard, or uniform, official eartag to increase awareness and understanding that it is unlawful to remove the tag. APHIS should conduct a study to determine the potential advantages and disadvantages of having one national ID eartag for cattle. The study should examine the merit a standardized tag might bring to ease of recognizing official tags and its effect on compliance. The study should also include cost comparisons of the use of numerous tag styles, sizes, etc. versus one standard, uniform tag. APHIS should review this information and, if having one uniform tag has significant advantages, publish the one tag concept for public comment through the Federal Register. The actual change, if pursued, would require rulemaking.
  10. The ability to maintain the identity of imported cattle is essential. As such, the working group recommends that APHIS allow the retagging of such animals with an official EID tag by revising the traceability regulation to define an “Import Tag” (with a specific range of AINs and tag color). For example, APHIS could reserve a range of 840 numbers starting with “8409” for use on these tags. To help distinguish “Import Tags” that have a panel component, the panel piece of the tag should include the text “Import”. This ID option would clearly identify animals tagged with an 840 Import Tag after importation to the United States; provide producers the option to use compatible EID technologies as preferred; and allows for re-tagging visual only tagged imported cattle with an 840 EID Import Tag (even if the visual only official tag of the exporting country is in the ear). Producers using UHF technology could use USDA approved UHF 840 tags or the USDA approved UHF NUES tags when the State Animal Health Official authorizes this option. The recordkeeping requirements for tagging imported animals would remain the same as currently written in 9 CFR Part 86 for retagging and adding a second official tag. The working group recommends that APHIS prohibit the use of visual only 840 tags in imported animals.
  11. Considerations related to official identification of beef feeders to include beef cattle under 18 18 month of age after additional analysis.

“Moving forward, USDA wants to continue to build on the current momentum around animal disease traceability, and will begin implementing these ADT goals starting in fiscal year 2019.”

State Departments of Emergency Management prepare and respond to natural disasters by implementing the orchestrated emergency response plans, which state, federal and non-profit partners help develop over the years. These plans, that also include responses to the intentional or accidental introduction of highly pathogenic zoonotic or strictly animal diseases, are considered ever-green and updated based on emerging technology and review of tabletop exercises.

For those farmers, ranchers, veterinarians, zoos, aquaria, equine facilities, animal shelters, pet stores, biomedical research facilities and companion animal owners in need of assistance following Hurricane Florence and then Hurricane Michael in the South East, I hope the following resources can be of assistance.

South Carolina

On October 8, 2018, South Carolina State Veterinarian Boyd H. Parr, DVM implemented “temporary exceptions to the regulations governing the importation and exportation of animals coming into and leaving South Carolina as a result of Hurricane Michael.  All animals moving under these exceptions are expected to return to their state of origin no later than 10/31/18 unless this order is extended or revised.”  The exceptions, set forth at the Clemson Livestock Poultry Health website, permit interstate movement without a Coggins test result form or Certificate of Veterinary Inspection.

A comprehensive list of resources are available on Clemson’s Emergency Preparedness, Response and Recovery website, including, for example, links to (1) Hurricane Guidance for Livestock Owners; (2) Disaster Plan for Horses; (3) Emergency Equine Stable Sites; Flooding Hay Request Form; (4) Animal/Agriculture Emergency Support Function (ESF)-17 Ag Damage Assessment Information Form; and (5) Business Continuity for Agriculture/Secure Food Supply Plans.

In the face of Hurricane Florence, South Carolina previously suspended certain motor vehicle requirements, including, “such federal rules and regulations, in conjunction with S.C. Code Ann. §§ 56-5-4010 et seq., which establish size, weight, and load requirements for South Carolina highways, for, in relevant part, “Persons and vehicles transporting livestock, poultry, food for livestock and poultry, and crops ready to be harvested.”

Georgia

In Georgia, the Department of Agriculture has a Hurricane Response Center available on its website that also provides links to relevant information, including tips for those impacted by the storm.  Guidance is available related to livestock, pets, food, fuel, crops and other important information, such as:

0/12/2018 Commissioner Black Gets First Glimpse of Hurricane Michael’s Damage

10/12/2018 Disaster Assistance Discovery Tool

10/11/2018 Hurricane Michael Devastates Georgia’s Agricultural Industry

10/10/2018 Disaster Assistance Fact Sheet

10/10/2018 Press Release: Georgia Department of Agriculture Responds to Threat of Hurricane Michael

10/10/2018 Hurricane Michael: Animal Interstate Movement Requirements for Entry into Georgia from Florida are Temporarily Suspended UPDATED!

10/09/2018 Georgia National Fair Press Release: Fair Closed Wednesday October 10th, 2018

10/09/2018 Governor Nathan Deal declared a state of emergency for 92 counties in Georgia

Resources for Animal Food Producers in Flooded Areas of Gulf Coast

Like South Carolina, Georgia  and Florida temporarily suspended their interstate importation requirements for the transportation of animals.

Florida

Florida, with its long history of exemplary emergency preparedness and response, continues to implement those plans, including “[s]upporting pet-friendly shelters, agricultural producers, and local communities with various needs for supplies, transportation and staffing.”

North Carolina

The North Carolina Department of Agriculture & Consumer Services, N.C. State University Cooperative Extension and N.C. Cattlemen’s Association issued a warning on Sept. 22, 2018 to its constituents that “an individual was offering operational recovery assistance to producers with the claim that he had been authorized by the South Carolina state government. A background check on this individual proved this to be false.”

We are asking that if you are contacted by organizations or individuals that you do not know and you have a concern about their legitimacy, to please get the name of the individual/team, phone numbers, emails, license plate numbers, etc. and share that with your county Emergency Management Services.

USDA

A long-time partner with state departments of agriculture in emergency response, USDA provides resources and information on its website.  Its role  is “to provide food, emergency housing, community, as well as farmer and rancher assistance to individuals and small businesses affected by severe storms and flooding . . . [and] to work with states affected by severe storms and flooding regarding requests for various assistance, waivers and flexibilities in administering federal nutrition assistance programs.”  USDA also provides link to FEMA’s app for shelter and related information, as well as disaster assistance programs for farmers.

FDA

FDA, concerned about contamination of crops from floodwaters, provides relevant guidance on its website, “Crops Harvested from Flooded Fields Intended for Animal Food: Questions and Answers.”  In some cases, and with specific FDA approval, crops intended for human consumption can be used for animal feed.

The FDA will work with producers to consider requests to recondition an adulterated crop into animal food on a case-by-case basis. FDA’s compliance guide (CPG 675.200) provides a step-by-step process for reconditioning requests.

AVMA

The AVMA helps veterinarian impacted by disasters and provides emergency preparedness guidance on its website.

Hopefully, everyone impacted by these recent storms will find these and other resources helpful as they rebuild their properties, care for their animals, and recover.

Typically, animal diseases have a seasonal presence.  For example, avian influenza, like other influenza viruses prefer cold damp conditions.  On the other hand, viruses transmitted by mosquitoes (arboviruses), including Equine Encephalitis virus and West Nile virus , are diagnosed when the mosquito population has peaked, often in in mid-late summer and early fall.

In addition to the seasonal prevalence of arboviruses in the United States, USDA APHIS has been tracking and reporting on an outbreak of Virulent Newcastle Disease (vND) in California, first identified in May 18, 2018.

USDA has confirmed 156 cases of vND in California, 102 in San Bernardino County, 22 in Riverside County, 31 in Los Angeles County and 1 in Ventura County.

To date the virus has been confirmed predominately in backyard exhibition chickens.  Backyard mixed species birds, backyard hobby turkeys and one live bird market have also been infected.  Virus has not been identified in commercial flocks to date, and state and federal animal health officials are emphasizing the importance of implementing enhances biosecurity practices to prevent additional transmission to other premises.  The last confirmed case was reported on October 4, 2018.

Across the globe, African Swine Fever, a highly contagious hemorrhagic disease of wild and domestic suids, has been spreading in Asia and across Europe.

As reported by USDA, China first reported the outbreak on August 3, 2018, “on a domestic swine farm in Shenyang, Liaoning Province with an onset date of August 1.”  This disease, like other highly pathogenic diseases of livestock and poultry are reportable to the World Animal Health Organization (“OIE”).

In addition to China, since the beginning of 2018, ASF has been reported in the following countries: Hungary, Romania, Moldova, Poland, Czech Repulic, Belgium, Russia, Latvia, Poland, Ukraine and Chad, as reported by OIE.

USDA reported that it met with the swine industry on September 5, 2018 “to discuss protections USDA has in place to prevent the introduction of African Swine Fever (ASF) to the United States as well as activities to enhance those protections.”

USDA provided a summary of recommended enhancement activities-“USDA industry prevention points.”

To prevent the introduction of this virus to the United States, USDA has: scheduled biweekly calls for updates and discussion; will review state authorized waste feeding of swine to determine whether inspection of licensed facilities should be enhanced; reviewed the importation of potentially infected meat, casing, and feed; asked Custom and Border Protection to “target its inspections of passengers and cargo coming from ASF positive regions.”

According to a report by Rabobank, African Swine Fever Shifts Global Protein Picture,

These disruptions could open export opportunities for U.S., Canadian and Brazilian pork producers, including initial panic buying. However, Rabobank explained, the potential spread of the disease throughout Asia and/or Europe also poses a great risk to North American and South American producers.

Shamong Township introduced Ordinance 2018-11, governing dog ownership, on October 2, 2018, which passed by the Township Committee on a first reading of the ordinance.  A public hearing is scheduled on November 7, 2018.

The Ordinance would require annual registration and inspection of “[a]ny property owner, occupant or tenant in Shamong Township having fifteen (15) or more adult dogs, defined as six months old or older, in their possession, licensed in their name, or housed on their property.”

The Ordinance would limit the number of dogs to “no more than a total of twenty-five (25) shall be kept, maintained or harbored at one time, for any length of time, in any residential housing unit or on its grounds or in any business establishment or on its grounds.”

Any dog owners and businesses, including shelters, pet stores, and animal rescue organizations with 15 or more dogs must also comply with the following provisions of the State regulation governing animal facility operations, N.J.A.C. 8:23A:  Section 1.2 (Compliance), Section 1.3 (Facilities-general), Section 1.4 (Facilities-indoor), Section 1.5 (Facilities-outdoor), Section 1.6 (Primary enclosures), 1.7 (Feeding and watering), Section 1.8 (Sanitation), Section 1.9 (Disease control), Section 1.10 (Holding and receiving of animals), Section 1.11 (Euthanasia), Section 1.12 (Transportation), and Section 1.13 (Records and administration).

Pet stores, shelters and kennels are already required to comply with these provisions, but animal rescue organizations and individual dog owners are not.  Doggy-day care operations that may believe they are are not “kennels” would also have to comply if housing more than 15 dogs.  Some of those provisions that could be difficult for individuals to comply with include:

Facilities not receiving water from a municipal water supply system shall test their water annually.  Test results must be sent to the local health department and kept on file.

Interior building surfaces of indoor housing facilities shall be constructed and maintained so that the are impervious to moisture and may be readily cleaned.  ‘“Impervious surface’ means a surface that does not permit the absorption of fluids.  Such surfaces are those that can be thoroughly and repeatedly cleaned and disinfected, which will not retain odors, and from which fluids bead up and run off or can be removed without being absorbed into the surface material.”  This grossly limits the type of indoor housing that can be provided.

A separate isolation room is required to house dogs showing signs of contagious illness.

In facilities constructed or renovated after January 17, 1995, the isolation area shall be a separate room (with ceiling to floor walls and door) from the holding area of the general animal population, not to be used for any purposes other than the segregation of animals with signs of communicable disease.  N.J.A.C. 8:23A-1.9(g).

In facilities constructed or renovated after January 17, 1995, the isolation area shall have an exhaust fan or system which creates air movement from the isolation area to an area outside the premises of the facility.  N.J.A.C. 8:23A-1.9(h).

Grid-type flooring permitted under the State regulations would be prohibited by the Ordinance.

Each facility shall have a supervising veterinarian who shall annually sign and date a form provided the the State indicating that the facility has a program of disease control and health care.

Each facility and property owner shall keep and maintain records on the property for 12 months after the date an animal is euthanized or removed from the establishment and must include the following information:

Date each animal was received;

Description of each animal;

License number of each animal;

Breed, age and sex of each animal;

Name and address of person from whom the animal was acquire;

Date and method used to euthanize the animal; and

Name and address of person to whom the animal was sold or otherwise transferred.

The Ordinance would also require “[e]ach registrant . . . [to] keep a record of the veterinarian treatments performed on each dog for at least three years.”

The Ordinance requires medications provided to dogs “to prevent infestation by intestinal parasites.”  This is an unobtainable requirement.  Instead, the Ordinance should require medication to minimize and treat infestation by intestinal parasites.

Anyone in the State or beyond concerned about these provisions should attend and testify at the hearing on November 7, 2018 in Shamong Township.  As we have seen, laws governing animals and related businesses are often introduced in multiple jurisdictions once successfully adopted.

Stuart Goldman, the former chief humane law enforcement officer for the Monmouth County Society for the Prevention of Cruelty to animals, filed a qui tam complaint against Critter Control of New Jersey, Kewin, Inc. d/b/a Critter Control of New Jersey, Robert McDonough and Evan Windholz (Critter Control defendants), “seeking ‘damages and civil penalties’ for violations of N.J.S.A. 4:22–26 for ‘animal cruelty, animal abuse, negligence, recklessness, [and] negligent infliction of emotional distress, 454 N.J.Super. 418, 421 (N.J.A.D. 2018).  Goldman alleged that the Critter Control defendants violated the animal cruelty statute when they removed a raccoon from a client’s roof and did not see baby raccoons that were allegedly present and “had gone without sustenance for a week.”

The court granted the Critter Control defendants’ motion to dismiss the case, with prejudice, because the animal cruelty statute does not authorize private citizens to sue, and Plaintiff Goldman therefore lacked standing.  The court denied Goldman’s motion for reconsideration and he thereafter appealed.  The appeal was consolidated with another appeal based on a case Goldman filed against Carlstrom, Hill, and Simplicity Farms alleging the farm mistreated horses violating the state animal cruelty statute.  The court granted defendants’ unopposed motion to dismiss which was later vacated when Goldman filed a motion for reconsideration, before finally dismissing the case for lack of standing.

Plaintiff-Appellant argues that his qui tam lawsuits were authorized by N.J.S.A. 4:22-26 which states ‘“any person in the name of the New Jersey [SPCA]’ or county SPCA can sue for civil penalties.”  Goldman v. Critter Control of New Jersey, 454 N.J. Super. at 425.

The appellate court carefully reviewed the history of the statute and other relevant statutes governing penalties and fines, including the Penalty Enforcement Law (PEL), N.J.S.A. 2A:58-10, to determine whether this clause Goldman relied upon provides legal standing for his qui tam-styled actions..

The Court held:

The PCAA authorized enforcement of the animal cruelty laws by the New Jersey or county SPCAs; authorized the SPCA to promulgate uniform bylaws and guidelines; required humane officers to be trained in these “mandatory uniform standards, guidelines and procedures”; authorized the imposition of civil penalties; dedicated all of the penalties to the SPCAs; allowed collection of the penalties pursuant a law that allows administrative agencies to collect penalties; and long ago, removed language referencing qui tam actions or informers. Given the many amendments of this legislation, we decline to interpret the PCAA as authorizing qui tam lawsuits.  Goldman v. Critter Control of New Jersey, 454 N.J. Super. at 429.

Notably, although the Court rightfully analyzed the appeal in light of the law existing at the time the civil actions were filed, the noted the most recent amendments to the animal cruelty statute which “shift[s] enforcement responsibilities to the county prosecutor task forces and militate against plaintiff’s contention that the law allows for private enforcement actions.”  Id. at 431.

This opinion provides an interesting analysis of the history of the penalty and enforcement provisions of State’s animal cruelty statute.

The Division of Animal Health has proposed amendments to the regulation governing laboratory services provided by the State Animal Health Diagnostic Laboratory, available on its website as published in the New Jersey Register on September 4, 2018 (50 N.J.R. 1919).

The amendments would increase fees charged for animal disease diagnostic and testing services offered in the state of the art laboratory which replaced the long outdated facility previously located on the second floor in downtown Trenton.  The prior location made it impossible to perform certain diagnostic testing, such as necropsies on large animals.

The regulation would add 30 new tests and provide for molecular testing and referring services to other laboratories when required.  Some of the new tests pertain to bacterial isolation and identification and animals that are not domestic livestock.

Others would “facilitate the most economic and accurate diagnosis of clinical conditions by grouping tests. If done individually, the total cost to perform these tests would be more. Amendments are proposed in equine neurologic tests due to changes in the disease (West Nile, which is now endemic), increased knowledge of epidemiology (Western equine encephalitis), and unavailability of certain reagents for HI and IgG tests.”

The Division has proposed amendments to N.J.A.C. 2:10-2 to codify “the longstanding policy of not returning animal remains of any kinds due to the risks of disease transmission to the general community.”  New section 2:10-2.2 “would allow for submitters or animal owners to direct remains be disposed of to a licensed crematorium upon written request prior to the start of a necropsy.”

One of the most important amendments involves the protection of test results and related information (e.g., animal owner, animal identification, animal location) which reasonably protects the privacy of animal owners.  This longstanding policy should be codified.  The Division has identified a number of reasons to support this amendment, including: (1) laboratory reports are generally applicable only to the submitter; (2) reports include details of a private nature; (3) laboratory services are provided to livestock and other animal owners, veterinarians, and other submitters who pay for those services, which should remain private: (4) veterinary clients expect their information to remain private; (5) veterinarians are required to maintain the confidentiality of veterinary records  with few exceptions; (6) animal owners and veterinarians could circumvent disclosure of private information by using private or out of state laboratories which would decrease the State’s ability to identify and control disease; and (7) if tests are performed in other laboratories, interstate or international animal movement restrictions could be imposed without review by State animal health officials that might not be necessary or reasonable.

Comments to the proposed amendments are accepted until November 3, 2018.

Fees collected by the Division are not swept into the State coffers, but are instead “held separate and apart from all other funds of the State in a non-lapsing fund for annual appropriation to assure the provision of continuous support for the needed laboratory services.”

The New Jersey Department of Agriculture (NJDA), through its Division of Animal Health (DAH), operates the New Jersey Animal Health Diagnostic Laboratory (AHDL).

The AHDL provides diagnostic testing services to support disease control programs, health management, and productivity of livestock, equine, poultry, fish, and wildlife. The AHDL serves New Jersey’s companion animal owners by providing fast, accurate, convenient, and cost effective services to diagnose diseases in dogs, cats, exotics, and other pets. The AHDL serves as an expert veterinary diagnostic resource to state agencies, federal agencies, veterinarians, clinics, animal organizations, and universities.

Dr. Amar Patil, DVM, MS, PhD, DACVM is the Laboratory Director and the Assistant Director Division of Animal Health.

Dr. Manoel Tamassia, DVM, MS, PhD Dipl. Is the current Division Director and State Veterinarian, a position I previously held for nearly a decade.

The New Jersey Senate Environment and Energy Committee unanimously voted to release the Homes for Animal Heroes Act (S2826) from committee.  The bill would requires institutions of higher education to offer cats and dogs for adoption when they are no longer needed for education, research or other scientific purposes.  During the hearing on September 13, 2018 the following nonprofit associations or individuals submitted slips or testified:

Best Friends Animal Society; Merck; Tom Leach and Cindy Buckmaster, Ph.D., and Karen Froberg, VMD from the New Jersey Association for Biomedical Research; and the National Animal Interest Alliance.

Homes for Animal Heroes, created by Cindy Buckmaster, Ph.D., and an initiative of National Animal Interest Alliance (NAIA),

is a product of the research community’s desire to find loving homes for their animals, as well as the need to educate the public on the real facts about our animal heroes, how they are cared for, and how they improve human and animal lives.

As stated on its website 

Homes for Animal Heroes (HAH) is a national program dedicated to rehoming retired research animals, mainly dogs, and sharing the facts about the critical role animals in research play in curing disease. HAH is building a network of dog experts that can effectively work with research institutions to rehome retired research dogs in every state across the country, one location at a time. Our goal is to permanently rehome these animal heroes into loving homes through a comprehensive foster-based program.

The program builds in successful outcomes by temporarily housing dogs with caregivers, trained “to acclimate former study” dogs to a home environment.  Potential adopters are also screened and interviewed for lifelong compatibility.

The program and the bill, do not require research facilities to place dogs with animal rescue organizations, many of which have not been trained to handle these animals, and most are nearly entirely unregulated.  Instead, the institutions and the staff who have worked closely with these dogs and cats, are able to place them in homes where they will have the best chance of remaining for the rest of their lives.

As part of its Five-Year Plan for Supporting Antimicrobial Stewardship in Veterinary Settings—just released—FDA announced that it plans to shift from “educating” food animal veterinarians and producers about the 2016 Veterinary Feed Directive (VFD) to “ensuring compliance with the . . . regulation to further ensure the safety of animal and human health.”  In other words, producers, veterinarians, and VFD medicated feed distributors (e.g., feed mills, retailers) should expect enhanced enforcement by FDA inspectors.

Those regulated should keep in mind that FDA inspectors will “examine VFD orders, requirements for the parties involved, and recordkeeping” during inspections.

FDA’s overall plans include three broad-based goals:

  1. Align antimicrobial drug product use with the principles of antimicrobial stewardship;

  2. Foster stewardship of antimicrobials in veterinary settings; and

  3. Enhance monitoring of antimicrobial resistance and antimicrobial drug use in animals.

While described as a One Health initiative, FDA’s plans favor the preservation of medically important antibiotics for humans over animals, particularly food animals.  Also, while acknowledging that it does not regulate either veterinary medicine or farming activities, FDA has set forth plans that appear to attempt to extend their regulatory reach, through proposed expansion of inspection and testing of animals, including food animals, companion animals, animal feed, farm-raised seafood and retail meat.

FDA also plans on bringing the 5% of antimicrobials still available over the counter under veterinary oversight, including, for example intramammary treatment to prevent or treat mastitis.  Not only will this increase costs to producers (which will be passed along to consumers), but according to the AVMA, many farmers and ranchers in rural communities do not have access to adequate veterinary care because of veterinary shortages “in more than 180 rural communities across the country.”

Certainly, the issue of antimicrobial resistance is important.  However, the emphasis by some government officials and legislators too often focuses on limiting use of antibiotics important to maintain the health of animals.  And the collection and reporting of antibiotic use and test results are used by activists to eliminate the use of animals for food completely.

Testing of some food products, albeit for other purposes, resulted in the conviction of the owners and operators of the Decoster Egg Farms for “introducing eggs into interstate commerce that had been adulterated with Salmonella enteritidis,” even though the government admitted that it had not identified any personnel, including the defendants who knew that the eggs were contaminated.  United States v. Decoster, 828 F.3d 626 (8th Cir. 2016) (Beam, J., dissenting).

Keep in mind that preventing Salmonella enteriditis was the basis for the adoption of enlarged cage requirements for hens in California despite evidence that such measures do not decrease the prevalence of the bacteria.  Furthermore, California and Massachusetts have imposed their regulations on producers in other states—an impermissible extraterritorial regulation in violation of dormant commerce clause, which has been challenged.  State of Missouri, et al. v. State of California, No. 22O148 (2017); State of Indiana, et al. v. Commonwealth of Mass., No. 22O149 (201