The Animal Legal Defense Fund (ALDF), along with the Food & Water Watch and the Food Animal Concerns Trust responded on Monday to motions to dismiss their Northern District of California suit claiming that the Food and Drug Administration (FDA) and an animal pharmaceutical company should not have approved Experior, a drug to reduce gasses released by cattle. The plaintiffs argued that they do have standing and have adequately alleged injuries, and asked the court to deny the motions to dismiss.
The FDA and Elanco Animal Health each filed a motion to dismiss the suit in late October. The drug the defendants approved purportedly causes less ammonia gas to be released from cow waste. They argued that the plaintiffs did not have standing because they had not been harmed by Experior. Monday’s response, however, said that the motions to dismiss “overstate the standard of review” and “mischaracterize the harms to Plaintiffs’ members.”
The plaintiffs reiterated their claims that Experior, which is a beta-agonist and is designed to increase the industrial production of meat, is harmful to the cows, as well as to the environment. The ALDF reportedly petitioned the FDA to stay its approval of Experior shortly after the drug was approved, purporting that it did not “adequately consider() the animal health, public health, and environmental impacts” of the drug’s use, but the FDA denied its petition.
In the response’s argument that the plaintiffs do have standing, it said that “Exterior’s imminent, widespread distribution harms Plaintiffs’ members and threatens the natural environments and rural landscapes where they recreate and live. Plaintiffs’ members are beef consumers who are harmed because they cannot avoid exposure to Experior in the food supply while consuming conventionally-raised beef and, because there is no way for them to know whether Experior is being used in the meat they purchase, they are forced to change their purchasing habits or forgo beef consumption altogether.” The plaintiffs also said that some rural residential members of the plaintiff organizations have businesses that could be harmed by the drug’s approval.
Experior was reportedly approved by the FDA on November 6, 2018. The plaintiffs claimed that it and similar drugs are linked to higher mortality rates for cows from various issues, and behavioral issues in the cows that could lead the cows to be abused or suffer. The response also cited that the drugs, if allowed to contaminate the environment, could harm wildlife. The plaintiffs asserted that the presence of Experior in food products is now “imminent” and that the court should allow the case to continue.
The plaintiffs are represented by the Animal Legal Defense Fund and the Law Office of Paige Tomaselli. Elanco is represented by Covington & Burling LLP and the FDA is represented by the Department of Justice.
