In addition to new federal laws such as the Food and Drug
Administration Amendments Act of 2007, a number of state
legislative bodies have reacted to last year's petfood recalls.
They have introduced several new proposals, primarily concerned
with recovery of damages by persons whose pets are injured by
adulterated petfoods. A few of the proposals add new
responsibilities for petfood companies in terms of
manufacturing or labeling requirements.
Historically, the courts have treated pets similarly to farm
animals: as legal property. Hence, recovery of damages from
loss or injury to an animal has mostly been limited to the
animal's market value, purchase price or replacement cost, and,
in some cases, other measurable costs, such as veterinary care,
training and breeding costs or loss of breeding, performance or
other income. This is usually straightforward in the case of
livestock, where economic losses can be more easily
calculated.
Loss of a dog or cat, however, generally has relatively
little direct economic effect. Even a valuable show dog doesn't
come close in monetary value to a dairy bull with good genes or
a prize-winning Thoroughbred racehorse. As a result, lawsuits
related to loss of a pet usually have not been associated with
sizable awards.
However, the legal paradigm appears to be shifting. As our
society increasingly recognizes pets as part of the family and
more than mere property, more lawsuits related to pet loss have
sought non-economic damages (infliction of emotional distress,
loss of companionship) and/or punitive damages (to punish the
wrongdoer as well as deter others). As one would surmise, these
types of damages generally exceed by manifold typical economic
damages for pet loss or injury.
Lawsuits seeking awards beyond economic damages have been
facilitated in recent years by a number of states that have
enacted or proposed laws allowing for non-economic or punitive
damages stemming from loss of or injury to pets. Most are
directed toward intentional or negligent acts of individuals or
businesses such as veterinary offices. Depending on the
statutory language, however, at least some of these laws could
also apply to manufacturers or distributors of petfood. The
authorized limit of the non-economic/punitive award varies with
each state, ranging from US$1,000 to as much as US$500,000.
Historically, the courts have treated pets similarly to farm animals: as legal property.In apparent response to the 2007 recalls, some of the
recently proposed state laws are expressly directed toward
damages caused by consumption of petfood. For example, New
Jersey Assembly Bill 1965 allows for civil damages when a pet
becomes ill or dies from adulterated food. In addition to
economic damages, including veterinary care and burial fees,
the New Jersey bill authorizes recovery for loss of
companionship up to US$15,000.
Washington State Senate Bill 6258 doesn't expressly allow
for non-economic damages but does authorize treble damages for
unspecified losses stemming from the knowing manufacture or
sale of adulterated petfood. This would be considered a
deceptive act and violation of Washington's consumer protection
act, and the treble damages a form of punitive award.
In addition to the bill regarding damage awards, New Jersey
has proposed a bill entitled the Pet Food Safety Act (Assembly
Bill 1915). This would require manufacturers to certify to the
state that petfoods do not contain "harmful byproducts or
chemicals" prior to distribution in that state. Other quality
standards may be put in place as well. Besides possible state
action, the law would allow any aggrieved person to bring a
civil action against a company that violated these
provisions.
Hawaii House Bill 2529, which affects human foods as well as
petfoods, authorizes the state to require action by companies
that manufacture, import, distribute or sell a product that may
pose a significant health risk. This could include mandatory
recall of affected product. Penalties for violation of these
provisions could be as high as US$10,000 per day per act.
California Senate Bill 1773 requires inspection of an
in-state petfood manufacturing facility to ensure proper
equipment and sanitary operation prior to registration. With an
out-of-state manufacturer, the registration is contingent on
certification by a federal, state or local health agency that
the petfood conforms to California requirements.
The bill would also require the label to bear the brand
owner's telephone number and the petfood's country of origin
(presumably even for domestically produced products). While
some petfood labels already bear this information, many others
would have to be revised for the products to be distributed in
California.
It must be remembered that as of this writing, these bills
are not currently law but rather in various stages of
deliberation within the respective state legislature. They may
be subject to change or even dropped from consideration in the
future. However, it behooves you to keep apprised of these
matters as they develop.