Animal Legal Def. Fund, Inc. v. Aubertine

• Decision Date: 17 July 2014
• Citation: 2014 N.Y. Slip Op. 05395,119 A.D.3d 1202,991 N.Y.S.2d 482
• Parties: In the Matter of ANIMAL LEGAL DEFENSE FUND, INC., et al., Appellants, v. Darrel J. AUBERTINE, as Commissioner of Agriculture and Markets, et al., Respondents, et al., Respondent.
• Court: New York Supreme Court — Appellate Division

119 A.D.3d 1202

991 N.Y.S.2d 482

2014 N.Y. Slip Op. 05395

In the Matter of ANIMAL LEGAL DEFENSE FUND, INC., et al., Appellants,

v.Darrel J. AUBERTINE, as Commissioner of Agriculture and Markets, et al., Respondents, et al., Respondent.

Supreme Court, Appellate Division, Third Department, New York.

July 17, 2014.

The Vincelette Law Firm, Albany (Elizabeth Hallinan, Animal Legal Defense Fund, Cotati, California, pro hac vice, of counsel), for appellants.

Eric T. Schneiderman, Attorney General, Albany (Andrew B. Ayers of counsel), for Darrel J. Aubertine and another, respondents.

David Lenefsky, New York City, for HVFH, LLC, respondent.

Before: LAHTINEN, J.P., McCARTHY, GARRY, LYNCH and CLARK, JJ.

LAHTINEN, J.P.

Appeal from a judgment of the Supreme Court (McGrath, J.), entered January 31, 2013 in Albany County, which, in a combined proceeding pursuant to CPLR article 78 and action for declaratory judgment, granted certain respondents' motions to dismiss the petition/complaint.

The predominant method of producing the food known as foie gras is to force feed ducks or geese so as to enlarge their livers ( see Matter of Humane Socy. of U.S., Inc. v. Brennan, 63 A.D.3d 1419, 1419 n. 1, 881 N.Y.S.2d 533 [2009] ). Petitioners contend that the force feeding procedure causes the animals to be diseased and the food product from them to be adulterated ( seeAgriculture and Markets Law § 200). Petitioner Animal Legal Defense Fund, Inc. (hereinafter ALDF) is a non-profit California corporation that advocates for the protection of animals, and petitioner Daniel Stahlie is a New York resident who occasionally consumes foie gras, but is allegedly concerned that foie gras from force-fed animals increases the risk that he will develop a medical condition known as secondary amyloidosis. This combined CPLR article 78 proceeding and declaratory judgment action was commenced against respondents Commissioner of Agriculture and Markets and the Department of Agriculture and Markets (hereinafter collectively referred to as the state respondents), as well as New York corporations that produce foie gras. Petitioners seek, among other things, a declaration that force-fed foie gras ¹ is an adulterated food product and an order prohibiting the state respondents from allowing foie gras into the human food supply. Pre-answer motions to dismiss asserted, among other things, that petitioners lacked standing. Supreme Court granted dismissal upon such ground and petitioners appeal.

Standing “requir[es] that the litigant have something truly at stake in a genuine controversy” (Saratoga County Chamber of Commerce v. Pataki, 100 N.Y.2d 801, 812, 766 N.Y.S.2d 654, 798 N.E.2d 1047 [2003], cert. denied540 U.S. 1017, 124 S.Ct. 570, 157 L.Ed.2d 430 [2003] ). Petitioners have “the burden of establishing both an injury in fact and that the asserted injury is within the zone of interests sought to be protected by the statute alleged to have been violated” (Matter of Association for a Better Long Is., Inc. v. New York State Dept. of Envtl. Conservation, 23 N.Y.3d 1, 6, 988 N.Y.S.2d 115, 11 N.E.3d 188 [2014]; see Society of Plastics Indus. v. County of Suffolk, 77 N.Y.2d 761, 772–773, 570 N.Y.S.2d 778, 573 N.E.2d 1034 [1991] ). The injury in fact element must be based on more than conjecture or speculation ( see New York State Assn. of Nurse Anesthetists v. Novello, 2 N.Y.3d 207, 211, 778 N.Y.S.2d 123, 810 N.E.2d 405 [2004]; Matter of Clean Water Advocates of N.Y., Inc. v. New York State Dept. of Envtl. Conservation, 103 A.D.3d 1006, 1008, 962 N.Y.S.2d 390 [2013], lv. denied21 N.Y.3d 862, 2013 WL 4516420 [2013] ).

Petitioners contend that Stahlie has standing based upon allegations that he occasionally eats foie gras at parties and other events and that this may increase his risk of developing secondary amyloidosis. They rely primarily upon Baur v. Veneman, 352 F.3d 625 (2d Cir.2003) as authority for standing to compel government action when a consumer faces an enhanced risk of injury from exposure to a potentially unsafe product. Although the Second Circuit found standing in Baur, it cautioned about “the potentially expansive and nebulous nature of enhanced risk claims” and reiterated that “the injury-in-fact analysis is highly case-specific” (id. at 637). “[I]njury based on exposure to potentially or actually harmful products can take at least two forms: (1) ‘uncontested exposure to a potentially harmful substance’ ... and (2) ‘potential exposure to an undisputedly dangerous contaminant’ ” (Natural Resources Defense Council, Inc. v. United States Food & Drug Admin., 710 F.3d 71, 83 [2d Cir.2013], quoting Baur v. Veneman, 352 F.3d at 634 n. 8).

Baur was an example of the second form of enhanced risk standing as it involved a disease (“mad cow disease”) that was undisputedly very serious in that it had already caused many human fatalities. The alleged exposure was not as clear since it came from a narrow aspect of the industry (i.e., meat from downed cows) and no deaths had occurred yet in this country. In that case, “critical factors” in finding standing also included that the government was being challenged for inactivity in an area where it had issued “studies and statements confirm[ing] several of [the plaintiff's] key allegations” and the plaintiff's “risk of harm [arose] from an established government policy” (Baur v. Veneman, 352 F.3d at 637; see State of New York v. United States Army Corps of Engineers, 896 F.Supp.2d 180, 193 [E.D.N.Y.2012] ).

A case finding the first form of enhanced risk standing is Natural Resources Defense Council, Inc. v. United States Food & Drug Admin. ( supra [hereinafter referred to as NRDC ] ). NRDC involved frequent exposure at work—up to 50 times per day—to a cleaning product that allegedly posed a health risk (id. at 81). Although the extent of the risk in NRDC was still a subject being studied, there was “no genuine dispute that [the product was] potentially harmful” ( id.). Similar to Baur, the Food and Drug Administration itself had issued a consumer notice ( see id. at 78) and had acknowledged “valid concerns” about use of the cleaning product as well as its potential long-term serious health effects (id. at 78, 82). Succinctly stated, in Baur, the risk of exposure was uncertain but the harm was clear and significant, whereas in NRDC, the exposure was manifest and substantial but the harm—while potentially serious—was not yet certain (id. at 83).

Here, the risk of exposure is minimal and the indication of harm uncertain. Although petitioners included expert opinion indicating a possible risk of secondary amyloidosis from foie gras for some individuals with certain medical conditions, they cite no situation of any person ever suffering secondary amyloidosis that was linked to foie gras. Stahlie does not contend that he has any of the underlying medical conditions that may be related to an increased risk of secondary amyloidosis. His exposure to foie gras is infrequent. There are no studies, statements or warnings by the regulating agency or other pertinent governmental entity regarding a relevant risk related to the occasional consumption of foie gras. Stahlie has, at best, occasional exposure to a product that has not yet been connected by any actual case to the purported risk of harm alleged by petitioners. We agree with Supreme Court...