SeaWorld trainers can't be banned from being in the water with killer whales because that's the product they're selling, a company attorney has told a judge.
Attorney Eugene Scalia presented that argument to the U.S. Court of Appeals in taking issue with a provision in the Occupational Safety and Health Act, the Los Angeles Times reported Wednesday.
Trainers have been prohibited from being in the water more than knee-deep with orcas since Tilikum, a large male killer whale, grabbed trainer Dawn Brancheau in 2010 in a tank in the Orlando, Fla., park and held her underwater until she died.
The Department of Labor issued the restriction, citing the law's "General Safety Clause" that requires employers to provide a workplace that is safe from hazards that could cause death or serious harm to workers.
In arguing against the provision, Scalia said the clause "cannot be used to force a company to change the very product that it offers to the public."
That product for SeaWorld, Scalia said, is close contact with the potentially dangerous mammals.
"SeaWorld exists to offer the opportunity to view that close interaction between whales and people," the attorney said. "That is its product that it's offering."
He argued the ban was comparable to the federal government telling the NFL close contact between players would no longer be allowed during games.
Scalia said "more people are injured in the NFL on any given Sunday than were injured in the 22-year period that OSHA looked at in this case."
Amy Tryon, an attorney representing the Labor Department, told the court close contact created risk for trainers because "SeaWorld's training program does not take the predatory instinct out of these animals."
She said close contact was not essential for SeaWorld's business, unlike the NFL.
Since Brancheau's death, SeaWorld has limited its trainers to being in the water no more than knee deep. Tryon argued that change proved the lack of close contact had not put SeaWorld out of business.
The court's ruling is expected in a few months.
Original headline: Orca contact ban would force SeaWorld to change business, court told
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