On December 23, 2019, Judge Kimberly J. Mueller of the Eastern District of California entered temporary restraining orders (TROs) in two related cases, enjoining Attorney General Xavier Becerra from enforcing California’s ban on the sale of alligator and crocodile products. The ban, which was to take effect on January 1, 2020, is now stayed until at least May 24, 2020, allowing retailers to continue selling crocodile and alligator skin products until that time. The TROs not only provide a temporary reprieve for retailers that would have needed to move their current alligator and crocodile skin products (such as handbags or shoes) out of California during the holiday season, but also create an opportunity for California’s first-of-its-kind ban to be amended or struck down before taking effect.
Penal Code 653o
California Penal Code Section 653o states, “Commencing January 1, 2020, it shall be unlawful to import into this state for commercial purposes, to possess with intent to sell, or to sell within the state, the dead body, or any part or product thereof, of a crocodile or alligator.” Violators of Section 653o will be guilty of a misdemeanor and subject to a $1,000 to $5,000 fine and/or up to six months imprisonment in county jail. The law does not include an exception allowing retailers to sell through crocodile or alligator products that they have in stock before the law takes effect.
For more information on Section 653o, see here.
Temporary Restraining Orders
In both April in Paris et al. v. Becerra (brought by a group of 11 farmers, retailers, and manufacturers) and Delacroix Corp et al. v. Becerra (brought by one of Louisiana’s largest coastal landowners, in conjunction with the Louisiana Landowners Association and Louisiana Wildlife and Fisheries Commission), the plaintiffs filed motions for preliminary injunction, arguing, inter alia, that Section 653o is preempted by the federal Endangered Species Act (ESA) and violates the Commerce Clause of the United States Constitution. The motion in each case is each set for hearing before Judge Mueller on April 24, 2020.
In light of the motions, the parties in each case stipulated to, and the court entered, temporary restraining orders staying the enforcement of the law until 30 days after any entry of any full or partial denial of plaintiffs’ motion for a preliminary injunction or a final judgment adverse to plaintiffs, whichever comes first. If the court were to issue an order denying the plaintiffs’ motions on the April 24, 2020 hearing date, for example, the TRO would be lifted on May 24, 2020. If instead, the court issued a decision months after the hearing, then the TRO would be in effect until at least 30 days after such a ruling.
While Section 653o was passed in the 1970s, the California legislature has twice delayed its prohibitions as to alligator and crocodile products through sunset clauses signed into law in 2006 and 2014.
In 2019, there were similar efforts to repeal or postpone Section 653o’s crocodile/alligator ban, but none were passed before the end of the legislative session on September 13, 2019. Two of these bills are still in Committee and could pass in 2020 before the TROs are lifted.
- AB 719, which is currently in the Senate Appropriations Committee, would require manufacturers to submit proposals to the Department of Fish and Wildlife on technology to track the source of crocodile or alligator hides used in the manufacturing process. For companies that do not use such tracking systems, the bill would prohibit the importation or sale of alligator and crocodile products into the state after March 30, 2022.
- AB 1561 would delay the ban until January 1, 2021. It was re-referred to Committee on September 9, 2019.
- AB 527 would have delayed the ban until January 1, 2030, but it died in Assembly Appropriations on May 1, 2019.
Other Restrictions on Exotic Animal Bans
While California’s ban on alligator and crocodile products would be the first to take effect in California, the state has enacted similar laws with respect to other animal products.
On October 12, Gov. Gavin Newsom signed into law A.B. 1260, which amends Section 653o to also criminalize the import and sale of other exotic skins, such as iguana, skink, caiman and various lizards, beginning on January 1, 2022.
Also on October 12, Gov. Newsom signed into law A.B. 44, which prohibits the manufacture, sale, and distribution of fur products, such as clothing, shoes, and handbags, within California. A.B. 44 will go into effect on January 1, 2023. Violators will be subject to civil penalties of $500 for the first violation and $750 or $1,000 for subsequent violations committed within the same year.
To date, only California has considered bans on alligator and crocodile skins. However, Hawaii and New York City each considered fur bans in 2019, indicating that California is not the only jurisdiction interested in restricting the sale of exotic animal skins. If the ESA is found to preempt Section 653o, such a decision may deter other states from enacting similar legislation. Retailers that sell any exotic animal skin products would therefore be wise to follow the April in Paris and Delacroix cases.
Read the original article by Steptoe and Johnson LLP at lexology.com here.