A bill in New Jersey that would have interfered with rabies testing of domestic companion animals has been amended to remove the potentially dangerous and unneeded obstacles to timely testing.

The bill, A1219, requires notification to a pet owner from a health official or veterinarian before an animal is prepared for rabies testing or submitted to a qualified laboratory for such testing.  That notification, both verbally and in writing, must include:

 (1) the necessity of the rabies testing and the reasons therefor;

(2) the rabies testing protocol to be followed;

(3) the protocol to be followed with regard to the handling of the  animal’s body;

(4) the protocol to be followed with regard to the disposal of the animal’s body or its return to the owner; and

(5) the protocol of decapitation.

These requirements only apply if the owner of the animal is known.

The owner must then “release the animal to the health official or veterinarian, as applicable, for the rabies testing” and sign an acknowledgement that the owner has been duly notified.

Which begs the question – what happens if the owner refuses to release the animal for testing or refuses to sign the form?  The only remedy for failure for an owner to comply resides in a different statute, also amended in this bill.

That provision provides liability (a fine) for any person who violates the laws that authorizes local boards of health to protect residents against communicable diseases, including rabies.

So, the only amendment to existing law that would result if this bill is enacted, is a requirement for a verbal and written notification to an animal owner, if known, about why a rabies test is required and how it will be conducted.

If such notification would help pet owners cope if their pet had to be tested, as determined by health officials, that would be a good result.

A better result would be for all pet owners to make sure that their pets are properly vaccinated against rabies—a nearly 100% fatal disease.

The Fourth edition of the “Guide for the Care and Use of Agricultural Animals in Research and Teaching,” published by the American Dairy Science Association®, American society of Animal Science and Poultry Science Association, is now available on line.

Scientists at a large number of universities contributed to the revisions of the Third edition, resulting in the current version.

For those unfamiliar with the “Ag Guide,” guidance is provided in the following chapters:

Chapter 1: Institutional Policies

Chapter 2: Agricultural Animal Health Care

Chapter 3: Husbandry, Housing, and Biosecurity

Chapter 4: Environmental Enrichment

Chapter 5: Animal Handling and Transport

Chapter 6: Beef Cattle

Chapter 7: Dairy Cattle

Chapter 8: Horses

Chapter 9: Swine

Chapter 10: Domestic Sheep and Goats

Chapter 11: Meat-Type Poultry

Chapter 12: Egg-Type Poultry

Chapter 13: Waterfowl

The species-specific chapters include guidance for:  Facilities and Environment, Feed and Water, Husbandry, Standard Agricultural Practices, Environmental Enrichment, Handling and Transport, Special Considerations, and Slaughter and Euthanasia.

Current guidance for Beef cattle castration is that “[c]astration is least stressful when performed at or shortly after birth . . . [-] [a]n increasing body of still-limited literature indicates that it is best to castrate calves as young as possible.”  Ag Guide at p. 85.  Similarly, if not working with naturally polled cattle, disbudding is the preferred method, which must be performed before the formation of horn buds.

The Canadian Veterinary Medical Association recommends that disbudding be performed within the first month of life (CVMA, 2016). In the United Kingdom, disbudding with a hot iron is preferred to dehorning and it is advised that this should be performed before cattle reach the age of 2 mo.

Id.  Similar guidance is provided for procedures performed on other agricultural species.  As appropriate, the Ag Guide differentiates between animals raised for food and fiber production and those raised and used in animal research.

Similar to bans on citizen lawsuit based on alleged violations of the Federal Animal Welfare Act (see, e.g., Animal Legal Def. Fund, Inc. v. Espy, 23 F.3d 496 (D.C. Cir. 1994); Peninsula Humane Soc’y v. Walters, No. C 84-2010 SAW (N.D. Cal. Feb. 5, 1985) courts have dismissed lawsuits filed by individuals alleging violations of state animal cruelty statutes on similar grounds.

A good example is a case decided in New Jersey, Goldman v. Critter Control of New Jersey, 454 N.J. Super. 418 (App. Div. 2018).  In Goldman, the Court analyzed whether an individual could file a civil lawsuit against animal facilities for alleged violations of the animal cruelty statute.  In summary, the Court held there was no private cause of action, including, as alleged here, as a qui tam action under the animal cruelty statute, because the statute did not expressly permit such action.

Plaintiff Stuart Goldman, the former chief humane law enforcement officer for the Monmouth County Society for the Prevention of Cruelty to Animals (Monmouth SPCA) and a trustee for two non-profit animal welfare organizations, “filed a complaint ‘by way of . . . qui tam’ against Critter Control defendants, for removing a female adult raccoon from the roof of a house but left behind baby raccoons who allegedly went without sustenance for a week as result of the removal, which therefore constituted animal cruelty.”

Plaintiff’s complaint against Simplicity Farms, alleged that Simplicity Farm defendants violated N.J.S.A. 4:22–26(a)(1)2 and N.J.S.A. 4:22–26(a)(4) by mistreating horses.

In both cases, Plaintiff asserted that he was filing the complaints on behalf of the Monmouth SPCA which he stated was permitted by statutes which stated,

a civil action [could be filed] by any person in the name of the New Jersey Society for the Prevention of Cruelty to Animals or a county society for the prevention of cruelty to animals, as appropriate, or, in the name of the municipality if brought by a certified animal control officer or animal cruelty investigator.

N.J.S.A. 4:22–26.  Originally filed as separate complaints, the Critter Control matter was dismissed for plaintiff’s lack of standing, as the Court held “[t]he statute was ‘plain and unambiguous’ . . . providing that ‘only select organizations, not individuals, may pursue a civil remedy under the statute.”

Plaintiff filed the complaint against Simplicity Farms because he “disagreed with the Monmouth SPCA’s decision not to pursue criminal or civil charges against Simplicity Farm defendants.”  “The judge rejected plaintiff’s contention that a private individual had authority under N.J.S.A. 4:22–26 to investigate or prosecute allegations of animal cruelty” and dismissed the case.

Plaintiff appealed both dismissals and the matters were consolidated.

On appeal in Critter Control, Plaintiff alleges he had standing to sue in the name of the Monmouth SPCA as a qui tam action and . . . [i]n Simplicity Farms, Plaintiff contends his complaint should not have been dismissed because the statute authorizes “any person in the name of” the SPCA to file a civil action.”

The Court upheld the decisions granting motions to dismiss, finding the Plaintiff did not have standing to sue in either matter, stating, “[w]e decline to construe N.J.S.A. 4:22–26 as authorizing private citizens, who otherwise would not have standing, to sue for civil penalties under the PCAA in qui tam actions against other parties, who they allege may have committed acts of animal cruelty.”

The Court rejected Plaintiff’s contention “that the legislature intended N.J.S.A. 4:22–26 to authorize qui tam law suits because it provides that ‘any person in the name of the New Jersey [SPCA]’ or county SPCA can sue for civil penalties.”

The Court analyzed the amendments to the State animal cruelty statute, amended by L. 2017, c. 331, effective August 1, 2018, which transferred the “power of humane law enforcement from the New Jersey [SPCA] and county societies for the prevention of cruelty to animals (county societies) to a county prosecutor animal cruelty task force in each county, and a municipal humane law enforcement officer appointed in each municipality” finding

Given the many amendments of this legislation, we decline to interpret the PCAA as authorizing qui tam lawsuits.

Holding, further,

Indeed, the new amendments to the PCAA shift enforcement responsibilities to the county prosecutor task forces and militate against plaintiff’s contention that the law allows for private enforcement actions. In sum, we decline to construe the PCAA as authorizing qui tam lawsuits.

A recently decided case in North Carolina provides some guidance to landlords regarding their potential liability to a third party harmed by the pet of a tenant.  (Note- I refer you to an attorney in one of our N.C. offices for consultation in a specific case).

In Curlee by & through Becerra v. Johnson, 856 S.E.2d 478 (N.C. 2021), a “[c]hild, who had incurred severe injuries after he was bitten by dog, brought negligence action, by and through his mother, against dog owners and owners’ landlord, seeking to recover for injuries.”  Id.  On appeal, the Court upheld the court’s grant of summary judgment in favor of the landlord.

In North Carolina, to prevail in an ordinary negligence claim, a plaintiff has the burden to prove, ,

(1) that there has been a failure to exercise proper care in the performance of some legal duty which the defendant owed to the plaintiff under the circumstances in which they were placed; and (2) that such negligent breach of duty was a proximate cause of the injury.

Id. at 481.

The dog in question in this case had apparently bitten a child previously, but there was insufficient evidence presented that the landlord had been informed about this history.  Applying a test set forth in another dog biting case, Holcomb v. Colonial Assocs., L.L.C., 358 N.C. 501, S.E.2d 710 (2004), the Court held here that the plaintiff failed to establish both,

(1) that the landlord had knowledge that a tenant’s dog posed a danger; and (2) that the landlord had control over the dangerous dog’s presence on the property in order to be held liable for the dog attacking a third party.

Curlee by & through Becerra v. Johnson, 856 S.E.2d 478, 482 (N.C. 2021).

Concerns about dog bites have escalated following the increased placement of dogs from shelter and rescue organizations where the dogs behavioral background and tendencies may not be known or provided to adopters.  Hence, landlords should become familiar with governing laws regarding their duty to third party victims of dog bites owned by their tenants.

The plethora of laws banning or limiting sales of dogs from pet stores to families seeking a dog for long term companionship, purportedly passed to shutter puppy mills, have done nothing to improve the lives of dogs bred and sold by substandard dog breeders, because they were never the source of pet store puppies to begin with.  What the pet stores have created, under the false banner that pet stores sell puppies from puppy mills, is the increased marketplace for dog breeders who either negligently or intentionally breed them for the retail rescue marketplace.

The retail rescue marketplace, in stark contrast to purposely-bred dogs by heavily regulated USDA licensed dog breeders, is largely unregulated and the health and welfare of dogs is ignored.  Dogs are increasingly being imported by animal rescue organizations, who should be, but are not licensed by USDA, pursuant to provisions of the Animal Welfare Act and related regulations.  The retail rescue dogs are not professionally and carefully bred for animal health and behavioral characteristics that make them optimal for long term ownership.  Instead, they are bred by people only concerned about making a profit or by irresponsible dog owners who negligently permit their dogs to reproduce.

The public, including legislators in states and local jurisdictions, have been bombarded by propaganda funded by animal rights organizations that have intentionally mislead people that pet stores sell puppies from puppy mills.  They do not.  Sadly, the truth has been swept under the rug.  The following states are considering legislation that would ban sales of purposely-bred puppies from pet stores, including:

  1. Texas
  2. Washington
  3. Illinois
  4. Maryland
  5. Pennsylvania
  6. New York

The “Rescues” replacing the traditional, licensed and highly regulated source of pets for families represent a clear threat to health and welfare of people and pets.  For example, as reported in the New York Post, an international dog rescue group announced its intention to establish an, International dog-rescue group to open first US shelter in Jersey City.

The global pooch-rescue effort No Dogs Left Behind — which saves canines from the Chinese meat trade — is opening its first US shelter in New Jersey . . . [importing] thousands of pups since its founding in 2016 . . . [from] slaughterhouses, wet markets, traffickers, and illegal breeders across China.

How does this practice protect dogs negligently bred, native animals and people from exposure to infectious contagious diseases?  It doesn’t.

It is time to recognize the truth about legitimate, professional dog breeders, and how pet stores have been part of the national marketplace, placing well-bred pups in the homes of families who want a pet that is best suited for their family and will care for them for a life time.

And money raised by the very profitable animal rights organizations should be used to fund programs that educate dog owners in areas where negligent breeding occurs about the value of responsible pet ownership.

And we must address the gap that pet store sourcing bans has created, incentivizing dog breeders in other countries who are selling puppies into the U.S., often through retail rescue channels.

These laws have done nothing to help dogs.

 

 

Despite having failed to establish next friends standing in Naruto v. Slater, 2018 WL 1902414 (9th Cir. April 23, 2018), PETA recently filed another case based on next friends standing for alleged animal plaintiffs, 30 barn owls housed at John Hopkins University.  It was entirely predictable that PETA and other animal rights organizations would continue to file next friends standing cases.

In Naruto, PETA sued a photographer and his publishers for copyright infringement on behalf of a crested macaque, Naruto.  The Court, relying on Cetacean Cmty. v. Bush, 386 F.3d 1169 (9th Cir. 2004), found that there was no provision in the Copyright Act authorizing a suit in the name of an animal, and therefore PETA did not have standing to sue.

Similarly here, there is no provision in the Animal Welfare Act authorizing a suit in the name of an animal.  In fact, there is no private cause of action authorized by the Animal Welfare Act.

PETA will likely also try to rely on Article I, § 9 of the Constitution as a basis for its next friends standing.

But Clause 3 of this section provides for protection for “persons,”

Bills of attainder . . . are such special acts of the legislature, as inflict capital punishments upon persons supposed to be guilty of high offences, such as treason and felony, without any conviction in the ordinary course of judicial proceedings. (Emphasis added).

Animal rights organizations have thus far failed to expand the definition of “persons” to include non human animals.

The final initial allegation PETA appears to rely on to overcome standing challenges is, as alleged

 . . . courts have recognized that the prohibition on bills of attainder is not limited to the infliction of punishments on humans,  Today, even inanimate corporations benefit from these Constitutional protections.

But as SCOTUS held in Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682, 706-707 (2014), corporations are defined as “persons”

to provide protection for human beings.  A corporation is is simply a form of organization used by human beings to achieve desired ends.  An established body of law specifies the rights and obligations of the people (including shareholders, officers, and employees) who are associated with a corporation in one way or another.  When rights, whether constitutional or statutory, are extended to corporations, the purpose is to
protect the rights of these people.

So standing will be front and center in the governments motion to dismiss this lawsuit.

 

 

As previously discussed, a Colorado ballot initiative, if sufficient valid signatures are collected, would effectively ban animal agriculture from the State of Colorado if passed.  Hard to imagine an initiative that might surpass that, but Oregon’s proposed initiative, “Abuse, Neglect, and Assault Exemption Modification and Improvement Act,” would do just that.

The alleged Findings and Policy of the Act describe the purpose of the act,

to remove the current exemptions that allow for the inhumane and unnecessary abuse, neglect, and assault of animals.

What are those current exemptions, which the initiative has now labeled inhumane, unnecessary abuse, neglect and assault of animals (unless gross negligence can be shown)?  Here is a list of those current exemptions:

  • The treatment of livestock being transported by owner or common carrier;
  • Animals involved in rodeos or similar exhibitions;
  • Commercially grown poultry;
  • Animals subject to good animal husbandry practices;
  • The killing of livestock according to the provisions of ORS 603.065 (Slaughter methods);
  • Lawful fishing, hunting and trapping activities;
  • Wildlife management practices under color of law;
  • Lawful scientific or agricultural research or teaching that involves the use of animals;
  • Reasonable activities undertaken in connection with the control of vermin or pests; and
  • Reasonable handling and training techniques.

Need I say more?

Just in case this is not clear, by initially defining the existing exemptions (listed above) as inhumane, unnecessary abuse, neglect and assault of animals, these practices would be considered acts of animal cruelty if the initiative passes muster, is placed on the ballet and passes.

No more pest control, animal agriculture, hunting fishing, biomedical animal research and more.

The initiative also prohibits breeding domestic animals, livestock, and horses—labeling those acts, unless performed by a licensed veterinarian—to be crimes of sexual assault of an animal.

Keep in mind that, as reported by Oregon’s Legislative Policy and Research Office, Oregon already has:

a variety of ways in which Oregon protects animals, including criminalization of abuse or neglect, an affirmative duty for any peace officer to arrest and prosecute violators of Oregon’s animal cruelty laws, regulation of kennels and rescue organization and enhanced enforcement authority through humane special agents and animal crime prosecutors.

Hopefully, Oregon’s new initiative will not succeed and people who own, breed, raise, transport, sell and work with animals will be able to continue to do so, for the betterment of people and animal alike.

As previously discussed in “Colorado Poised to Eliminate Animal Agriculture” this proposed referendum, while clearly intended to eliminate all animal agriculture and related industries in Colorado, is fraught with ambiguities.

Take, for example, the definition of the lifespan of a “chicken” purportedly living for eight years.

Attorneys will recall the basis of a case used by law professors teaching contracts and commercial law in which the definition of what “chicken” means was the basis of the lawsuit.  Frigaliment Importing Co. v. B.N.S. Intern. Sales Corp., 190 F.Supp. 116 (S.D.N.Y. 1960) begins with this question:

The issue is, what is chicken? Plaintiff says ‘chicken’ means a young chicken, suitable for broiling and frying.  Defendant says ‘chicken’ means any bird of that genus that meets contract specifications on weight and quality, including what it calls ‘stewing chicken’ and plaintiff pejoratively terms ‘fowl’.

If “chicken” means a young chicken, suitable for broiling and frying, then its normal life span would be approximately 35 to 49 days.

To make it even more ambiguous this is how USDA describes various forms of chicken:

The age of chickens used for meat can vary from 6 weeks to 1 ½ years old. Chickens labeled as ‘Broiler-fryers’ are young, tender chicken about 7 weeks old; ‘Roasters’ are older chicken, about 3 to 5 months old; ‘Capons’ are male chickens about 16 weeks to 8 months old; and ‘Stewing/Baking Hens’ are mature laying hens 10 months to 1 1/2 years old.

As reported by Dan Flynn in 2022 ballot measure could be “win or die” test for Colorado livestock industry published in Food Safety News, the National Western Stock Show, the Colorado Cattlemen’s Association, Colorado Livestock Association and Colorado Farm Bureau have joined forces to oppose the Initiative.

The criminalization of routine animal husbandry practices always angers farmers and ranchers and rightly so.  Those practices have been developed by animal scientists and agricultural extension agents to protect the animals from each other, predators, environmental hazards, infectious diseases, and also create safe work places for farmers and ranchers.

Unfortunately, Colorado is not the only state facing the threat to agriculture through a ballot initiative.  There is a proposed initiative under consideration in Oregon which is arguably even more egregious.  Look for discussion of that initiative in the near future.

 

As a veterinarian, if a pet-owner comes to you with questions or concerns about the safety of hemp or CBD infused pet products, are you prepared to navigate the conversation?

Practicing veterinarians are subject to the regulation of several entities, both state and federal, including the FDA, the DEA, and their respective state veterinary and pharmacy boards. Given the complexities of the laws regulating cannabis products at the federal and state levels, in addition to the independence that state boards have to control the intricacies of practice, it can be difficult for veterinarians to know what to say to pet owners, or if they can even say anything at all.

Meanwhile, the marketplace for cannabis pet products is exploding. Pet owners are left with a lot of purchasing options and questions about the safety, dosage, and effectiveness of these new products. While research about the safety and efficacy of cannabis pet products is ongoing, more robust, peer reviewed scientific evidence is needed to support labeling claims that such products prevent, mitigate, treat or cure a condition in animals. Under current FDA policy and regulations, such products would be considered an unapproved use of animal drug and veterinarians who administer, prescribe or recommend such products, including CBD products would be subject to disciplinary action.

While it may be clear that veterinarians cannot prescribe CBD pet products to clients, are there restrictions about what veterinarians can with their clients? In a crowded market, it seems natural that pet owners would turn to their veterinarians for guidance. A survey conducted by the Veterinary Information Network confirmed this; 63% of veterinarians surveyed said clients ask questions regarding cannabis pet products on a monthly, weekly, or daily basis.

While such discussions could arguably be protected under the First Amendment (see below), there has been guidance in some states (through regulation) whereby such discussions are expressly permitted or prohibited.

State Veterinary Medicine Boards

For example, since September 27, 2018, California prohibited the state veterinary medical board from disciplining or denying, revoking or suspending the license of a veterinarian for discussing the use of cannabis pet products with pet owners. In order to receive the protection of this legislation, there must be an existing veterinarian-client relationship, and the veterinarian must document the discussion in the patient’s medical records. That documentation must include evidence that the veterinarian discussed: the variability of cannabis products, that there is no oversight of product concentrations, and there is a lack of research and potential side effects that pets may experience. It is important to remember that this only protects the discussion; veterinarians are still currently prohibited from dispensing, administering or recommending cannabis products.

Similarly, Michigan recently amended the state Public Health Code to allow licensed veterinarians to consult with an animal owner on the use of marijuana or industrial hemp on the pet. Like California, Michigan’s update does not address actions beyond the “discussion” phase. However, on the other end of the spectrum, New Hampshire prohibits veterinarians from discussing cannabis use in pets with their clients. Veterinary boards from New Jersey and Pennsylvania have no published positions or policies on record.

Speech Regulation Concerns

Of additional concern are the potential implications of state veterinary boards’ regulation of professional speech. Generally, regulations of professional conduct that are part of a state’s licensing scheme are acceptable; however, the regulation of professional speech is much more complex. Currently, regulations of the practice of medicine that incidentally burden speech are given some level of deference and subject only to intermediate scrutiny when challenged under free speech theories. The explanation from the court in the recent case National Institute of Family and Life Advocates v. Becerra, 138 S. Ct. 1275 (2018) supports this concept. But the question remains, are the limitations on a veterinarian’s ability to discuss and recommend CBD pet products a permissible regulation of conduct, or do they cross the line into an unconstitutional regulation of professional speech? It is possible to have more concrete guidance soon; the well-known 5th Circuit Hines II case has been reversed and remanded for the district court to make a more thorough evaluation of the professional speech versus conduct concept.

In the coming months, especially as the cannabis market continues to develop, it will be important to monitor your state veterinary board’s policies and state regulations on the matter. It is likely that existing regulations, policies, and options for pet owners will continue to grow and develop with the cannabis pet product market.

To learn more about the regulation of hemp, hemp derivatives, and CBD in animal products, click here.

To learn more about labeling considerations for cannabis pet products, click here.

A referendum that would eliminate animal agriculture in Colorado has passed the initial challenges and has been approved for the collection of citizen signatures.

Colorado State Ballot Initiative titled “Protect Animals from Unnecessary Suffering and Exploitation” would amend the State criminal animal cruelty statute to:

  1. define “’Natural Lifespan’ for the following species . . . : a cow lives to 20 years, a chicken lives to 8 years, a turkey lives to 10 years, a duck lives to 6 years, a pig lives to 15 years, a sheep lives to 15 years, a rabbit lives to 6 years” and prohibit slaughter of those animals unless the animal has lived one quarter of their natural lifespan, and
  2. amend prohibitions of sexual acts with an animal to include: “any intrusion or penetration, however slight, with an object or part of a person’s body into an animal’s anus or genitals.”

The problems with the first set of amendments as written drafted to eliminate animal agriculture in its entirety, would fail to does so for the following reasons:

A “cow” is a female bovine that has had more than one calf.  A “heifer” is a female bovine older than a “calf.”  When she has her first calf, she is called a “first calf heifer.”

A calf; heifer; first calf heifer; bull; bob calf; veal calf; steer; slaughter heifer, bull, steer, cow are all defined in various state and federal laws which separates them from “cows” and would therefore be exempt from this law, if passed.

There are similar exemptions for broilers and lambs.

The lifespan for “pigs,” which are neonatal swine, is plainly wrong, so there should be no impact on swine slaughter if properly interpreted and enforced.

Issues with the amendments to prohibitions of sexual acts with an animal (including companion animals) include the following, some of which others have already identified:

  1. artificial insemination;
  2. pregnancy diagnosis by intra anal examination;
  3. castration; and
  4. spay.

While there is an exception for procedures that facilitate animal health that may provide exception for spay/neuter of dogs and cats, such exceptions may be more difficult to obtain for livestock (including horses).

In addition to these issues, if this referendum is actually passed, there appears to be numerous commerce clause, supremacy clause, due process, and takings clause arguments that could be claimed based on federal and state law.

Hopefully, media campaigns will be mounted by farmers, ranchers and trade associations that will prevail.

If not, legal action is warranted.