Comments on the judgement by the Oslo district court on 31 January 2022 concerning whether breeding of English bulldogs and Cavalier King Charles Spaniels can continue
Lawyer and veterinarian, Strand & Co ANS
Jo Gjestvang is chair of the statutes committee of the Norwegian Veterinary Association.
Lawyer, Strand & Co ANS
Lawyer and veterinarian Jo Gjestvang at law firm Strand & Co ANS has been asked by the Norwegian Veterinary Journal to comment on the case described below. The judgement by the Oslo district court on 31 January 2022 is not legally valid because an appeal has been lodged against it.
We have been asked to produce a briefing on the judgement by the Oslo district court on 31 January 2022, which found that breeding the English bulldog (EB) and Cavalier King Charles Spaniel (CKCS) dog breeds violates section 25, paragraphs 1-3 of the Norwegian Animal Welfare Act. This brief has been produced because we assume the verdict has attracted a certain amount of attention from many dog owners, who will be raising the issue with veterinarians. The summons was dated 23 November 2020, with the main court hearing on 10-16 November 2021.
The lay assessors were Katja Nilsson, DAg, and Cecilie Marie Mejdell, DSc, both principal scientific officers (researchers).
Note that the judgement had not taken legal effect at the time of writing, since the deadline of 1 March 2022 for entering an appeal had not expired. [An appeal has been lodged since this text was written].
What the case concerns
At issue is section 25 of the Animal Welfare Act, restricting the genetic material which can be passed on through breeding, and whether the genetic material for EBs and CKCSs breaches these restrictions. The Norwegian Society for the Protection of Animals believes the lawsuit is necessary to determine the applicability of the breeding provisions in the Act.
Agreement has long prevailed that these and some other breeds face health challenges which are clearly related to the way their breeding has developed over the past 100 years.
The case is a pure declaratory action which does not seek to establish responsibility, guilt or the violation of a prohibition by any person or persons.
The judgement is based on the following health challenges.
Chiari-like malformation (CM) CM is a genetic, hereditary condition where the inner volume of the cranium is insufficient to hold the volume of the brain and the medulla oblongata. Parts of the cerebellum and the medulla oblongata may therefore form a brain herniation against the spinal cord. Nearly all CKCSs have CM but only a minority show clinical symptoms. Several scientific investigations were referred to during the hearing, and the court found it most likely that 15-20 per cent of Norwegian CKCSs have CM with painful symptoms. Material from veterinary practices specialising in neurology showed that, of 500 CKCSs examined, 62.4 per cent had behavioural signs of spinal pain and 47.6 per cent gave expression to pain when touched. Other studies suggest that 15-20 per cent of CKCSs with pain symptoms are put down for this reason.
SM is a disorder where the dog develops fluid-filled cysts within the spinal cord which may cause damage to the neural pathways over time. Furthermore, dogs with CM are thought to be particularly vulnerable to contracting SM. This is because the poor brain capacity leads to nerve compression, which disrupts/obstructs the circulation of spinal and cerebrospinal fluid in such a way that it accumulates in cysts within the spinal cord. During the court case, an expert witness said that about 22 per cent of the dogs presented serious clinical symptoms.
Myxomatous mitral valve disease (MMVD):
MMVD is an inherited disease which causes thickening of the heart valves between the left atrium and ventricle. That leads to leakage and associated recurrence of blood from the left ventricle back to the atrium. The court found it likely that CKCSs were overrepresented among MMVD sufferers compared with other dog breeds and that the disease often starts early.
Furthermore, the court emphasised that prevalence increased with age. Ten per cent of the dogs were diagnosed when one year old, 20 per cent at two years of age and so forth. In practice, all CKCSs will develop the disease before the age of 10, unless they die of something else beforehand. Episodic falling disease and curly coat dry eye syndrome also occur, and both are caused by genetic mutations.
Brachycephalic obstructive airway syndrome (Boas)
Dogs with Boas have a brachycephalic head shape, hence the name. This leads to respiratory problems, since the passage of air through the airways is restricted to a greater or lesser degree. Clinical symptoms of Boas are snoring and snorting, rapid and strained breathing, reduced endurance and ability to control temperature, and increased risk of heat stroke. Medical treatment is impossible, but Boas may be operated on in many instances. Some 15 per cent of sufferers have Boas grade 0, which means no symptoms after a load test, while about 15 per cent have grade 3 – the most serious level.
Extensive complications during labour and delivery
Many litters are born by planned or emergency caesarean section. The court referred to statistics showing that the number of natural births decreased from 37.5 to 31 per cent from 2011 to 2021.
Parties to the case
The Norwegian Society for the Protection of Animals has sued the Norwegian Kennel Club (NKK), the breed clubs for CKCS and EB, and three breeders from each of the two clubs. Whether these six breeders were selected at random or on specific grounds is not known.
Section 25 of the Animal Welfare Act was amended on 1 July 2021 and now leaves no doubt that “breeding organisations” are also responsible for promoting good health through the breeding process.
The NKK has argued that it falls outside the categories of parties covered by section 25, since it is a membership-based interest organisation, is not itself engaged in breeding, and is not a “breeding organisation”. However, the court found that the association has in fact assumed such a responsibility, since section 1-1, paragraph 3 of its statues states that the NKK has overall responsibility for dog breeding and dog breeds in Norway. Responsibility for managing the individual breeds is delegated to the respective clubs. Both clubs involved in the case have extensive rules and regulations on breeding and rearing.
The issues involved
During the main hearing, the health status of the EB and CKCS breeds was clarified through expert statements, and documentation was presented to show how the breed characteristics have developed over time (including photographs, anatomical descriptions and so forth).
In its assessment of CKCSs, the court emphasised the following stresses on the breed: CM, SM and MMVD. Where EBs are concerned, the court attached crucial importance to the following challenges: Boas and birth complications (high proportion of caesareans).
The legal issue addressed by the lawsuit is whether section 25 of the Animal Welfare Act restricts opportunities to breed and raise EBs and CKCSs in their present form.
Section 25 of the Animal Welfare Actstates the following.
Animal owners, breeders, breeding organisations and breed clubs shall through breeding promote characteristics which provide robust animals with good function and health.
Breeding, including by use of genetic engineering methods, shall not be conducted to:
alter heredity to influence animals’ physical or mental functions negatively or to continue heredity of this kind,
reduce animals’ opportunity to express their natural behaviour, or
trigger ethical reactions from the public.
Animals with heredity as mentioned in paragraph 2 shall not be used in further breeding.
The King may issue regulations on breeding in accordance with the principles in this section, and also with respect to breeding by breeding organisations and breed clubs.
To assess whether continued breeding of EBs and/or CKCSs is contrary to the precondition/assumption that robust animals with good function and health must be produced, the district court made a specific assessment of the health challenges associated with these breeds.
The most critical issues relate to whether it is probable that a certain number of animals will suffer from serious hereditary diseases as a result of continued breeding. However, this calls for a discretionary assessment which is obviously difficult. All dog breeds have negative characteristics, and some breeds have a higher incidence of hereditary diseases than others. A minimum threshold must therefore be established.
The district court found that the outcome of the trial depended on whether it is:
sufficiently likely that
a sufficiently large number of animals will get
sufficiently serious hereditary diseases through continued breeding of EBs or CKCSs.
The district court has further assessed a minimum threshold by applying the following considerations.
The nature and scope of the stress.
The stress is inflicted on the breed by external human action.
The stress is not generally accepted.
The purpose of the stress.
The nature and extent of the stress includes the negative attributes belonging to the dog breed in question. That applies, for example, to the risk of hip/elbow dysplasia, other hereditary diseases or breed characteristics which cause challenges for the dog. A considerable difference in severity exists, and this difference is of legal importance. There is a substantial difference, for example, between a dog breed with a genetic predisposition to slightly weaker hip joints and dog breeds where a number of dogs are already afflicted with considerable hip pain from an early age.
How far the strain is “imposed” through human influence is also given importance. That means inbred traits detrimental to the dog’s progress through life reduces the lower threshold. This point is considered to be based on moral and educational considerations.
The question of whether the stress is generally accepted may seem rather odd to people without legal training. Reference is made by the court to the view expressed increasingly and in many contexts that developments in some areas of dog breeding are heading in an undesirable direction. Furthermore, the purpose of subjecting breeds to stress is important for assessments. This point has certain similarities with the question of whether the stress is generally accepted, and such assessments often overlap into each other. An important consideration is whether the health and welfare challenges referenced can be regarded as necessary. See the wording of the Animal Welfare Act. The court considered that strains on the breeds could not be justified by such arguments as species diversity, financial interests, protecting sustainable food security or other important social considerations. These are examples of considerations given weight in the preparatory work on the Animal Welfare Act. The court held that maintaining the “purity” of the breed cannot justify the strains and stresses which EBs and CKCSs are exposed to through the breeding process.
Comments on the judgement
The Norwegian Society for the Protection of Animals has maintained that a judgement in its favour does not involve a ban on responsible breeding of EBs or CKCSs. Responsible and scientifically based crossbreeding could be a fully acceptable option. How this might possibly be accomplished is not spelt out.
The request by the Norwegian Society for the Protection of Animals for a declaratory judgement was upheld by the court. This implies that, if the decision of the court is not appealed, it will apply only to future breeding. The court made a comprehensive assessment and referred to several general considerations as a basis for its decision. It is therefore likely that a final judgement will be significant for breeding other dog breeds and perhaps also for breeding other pets. The Persian cat breed, for example, suffers from health challenges owing to traits bred into it. Further breeding of this type in Norway may be challenging.
Moreover, it can be mentioned that the Norwegian Food Safety Authority is assigned a formal supervisory role in section 40 of the Animal Welfare Act. Possible further breeding following a final judgement may lead to investigations by the authority with subsequent penalties.
The deadline for an appeal is one month – in other words, 1 March 2022. It is understood that work is now under way on an application to the Court of Appeal. [This appeal has now been lodged.]
A final decision cannot be expected until the second half of 2022 or the spring of 2023. This case will be followed up and further updates will be provided when there is anything to report.
This article was first published in the Norwegian Veterinary Journal of 25 February 2022.
Translated by Steinar Tessem and R E Gooderham.