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Great Apes and the Law
Maps of State Laws
THE MORALLY INFORMED CONSUMER: EXAMINING ANIMAL WELFARE CLAIMS ON EGG LABELS
30 Temp. J. Sci. Tech. & Envtl. L. 51 (2011)
Place of Publication:
Temple Journal of Science, Technology & Environmental Law
THE MORALLY INFORMED CONSUMER: EXAMINING ANIMAL WELFARE CLAIMS ON EGG LABELS
Temple Journal of Science, Technology & Environmental Law
*51 THE MORALLY INFORMED CONSUMER: EXAMINING ANIMAL WELFARE CLAIMS ON EGG LABELS
Sheila Rodriguez [FNa1]
Originally published in Temple Journal of Science, Technology & Environmental Law 30 Temp. J. Sci. Tech. & Envtl. L. 51 (2011)Reproduced with the permission of Temple Journal of Science, Technology & Environmental Law; Temple University of the Commonwealth System of Higher Education; and Sheila RodriguezCopyright (c) 2011 Temple Journal of Science, Technology & Environmental Law; Sheila Rodriguez
The labeling of shell eggs fails to reveal the inhumane conditions under which most laying hens are raised in the United States. Most of the eggs sold in major supermarkets come from factory farms. This article examines how the failure to regulate misleading animal welfare claims on egg labels creates a risk that consumers are buying products that they otherwise would not buy. This article explains why, from a moral and a legal standpoint, consumers should avoid purchasing most eggs.
Table of Contents
||The Morally Informed Consumer
||A. The Life of a Laying Hen
||B. The Consumer's Moral Obligation
||A. Overlapping Federal Agency Oversight
||B. Organic Foods Production Act of 1990
||C. USDA Process Verified Program
||Production Methods Claims Associated with Laying Hens
||A. Credence Attributes
||B. Industry Standards
||1. “United Egg Producers Certified”
||2. Sparboe Farms
||C. Misleading Claims
||1. Wegmans “Food You Feel Good About” Grade AA Eggs [FN1]
||2. Wild Harvest Natural Grade A Cage Free Large Brown Eggs
||3. Rose Acre Farms White Shell Eggs
||D. Third-Party Certification Programs
||1. USDA Organic Program
||2. Private Food Certification Programs
||a. Certified Humane
||b. American Humane Certified
||c. Animal Welfare Approved
||E. Petition to Change the Labeling Requirements for Eggs
Man is the only creature that consumes without producing. He does not give milk, he does not lay eggs, he is too weak to pull the plough, he cannot run fast enough to catch rabbits. Yet he is lord of all animals. He sets them to work, he gives back to them the bare minimum that will prevent them from starving, and the rest he keeps for himself. Our labour tills the soil, our dung fertilizes it, and yes there is not one of us that owns more than his bare skin. . . . In return for your confinements and all your labor in the field, what have you ever had except your bare rations and a stall? [FN2]
The labeling of shell eggs [FN3]
fails to reveal the inhumane conditions under which most laying hens are raised in the United States. [FN4]
Most hens are packed eight or nine hens to a cage so small that they are unable to stretch a wing. [FN5]
The overcrowding causes them to fight, so their beaks are cut off to prevent them from injuring other birds. [FN6]
Ninety-five to ninety-eight percent of eggs in the U.S. are from hens raised under these conditions. [FN7]
The remaining two to five percent of eggs are from hens *53
that were not even allowed outside. [FN8]
Most of the eggs sold in major U.S. chain supermarkets come from these factory farms. [FN9]
Consumers who want to eat eggs consistent with their moral obligation to these sentient animals should avoid purchasing most eggs. [FN10]
The failure to regulate misleading animal welfare claims on egg labels creates a risk that consumers are buying products that they otherwise would not buy. [FN11]
Given the widespread support for the humane treatment of laying hens, [FN12]
it is logical to infer that if consumers were aware of the actual living conditions of laying hens, they would be much less likely to buy conventionally produced eggs--or perhaps even any eggs. [FN13]
Although animal advocates are working to improve the lives of laying hens on many fronts, these improvements are often piecemeal and can take years to materialize. In the interim, people who care about the welfare of laying hens and want to effect reform should avoid consuming most eggs. [FN14]
Although animal law scholars have written extensively about the conditions under which animals are raised on factory farms, [FN15]
few have approached the topic from the *54
perspective of what people should or should not eat. [FN16]
The lack of scholarship in this area may reflect the intractable ideological divide in the U.S. between animal welfare and animal rights. [FN17]
Some animal law scholars who have confronted the question of ethical eating advocate a fundamentalist position. [FN18]
They contend that nothing short of “universal veganism,” [FN19]
or a lifestyle requiring everyone to abstain from consuming or using any animal products, will suffice. [FN20]
This scholarship has two fairly obvious *55
limitations: (1) vegans represent a small percentage of the population; [FN21]
and (2) it is premised on fundamentally overhauling the entire U.S. legal system to abolish the property status of animals. [FN22]
Interestingly, for animal ethics scholars, who examine the moral value or moral status of animals, the welfare/rights distinction seems to matter less or not at all. [FN23]
Few of these scholars debate veganism versus vegetarianism. [FN24]
Not surprisingly, the “universal veganism” view is dismissive of all animal welfare claims made by livestock producers. [FN25]
Other animal law scholars criticize these claims without examining what they actually mean. [FN26]
As a result, there is no definitive moral guidance for the overwhelming majority of U.S. consumers who care about the welfare of laying hens. [FN27]
In this article, I explain why, from a moral and a legal standpoint, the readers of this article should avoid purchasing most eggs. [FN28]
In Part II of this article, I describe how most laying hens are raised in the U.S. Drawing on the animal ethics literature, I address the moral implications of how these animals are treated and why most people are morally obligated to avoid purchasing most eggs. In Part III of this article, I give an overview of the laws that apply to laying hens and egg production, briefly assessing the limitations of legal reform. In Part IV of this article, I describe the various production method claims made by egg producers.
*56 II. The Morally Informed Consumer
A. The Life of a Laying Hen
Egg operations are the worst . . . I haven't managed to actually get into one of these places since journalists are unwelcome there. Beef cattle in America at least live outdoors, albeit standing in their own ankle-deep waste eating a diet that makes them sick. And broiler chickens, although they are bred for such swift and breast-heavy growth they can barely walk, at least don't spend their lives in cages too small to ever stretch a wing. That fate is reserved for the American laying hen . . . [FN29]
A typical hen begins her life in a crowded incubator. [FN30]
After moving to a shed, where she stays until she is old enough to lay eggs, she is taken to a wire battery cage [FN31]
where she will spend the rest of her life. [FN32]
A “standard practice is to place eight hens in a cage.” [FN33]
The area allotted to each chicken is about the size of a laptop computer. [FN34]
“[P]iled together” with the other birds, she cannot stretch a wing. [FN35]
This intense method of confinement causes “a range of behavioral ‘vices,’ including “rubbing her breast against the metal wire until it is “bald and bleeding,” and pecking and even cannibalizing her cage mates. [FN36]
Although important for feeding, exploring, and preening, her beak is partly cut off, through sensitive tissue, in order to limit the damage caused by these behavioral problems. [FN37]
The most popular method of debeaking is the hot-blade method. [FN38]
The hot-blade method employs a heated (650-750°C) “guillotine-type” blade that cuts and cauterizes the beak tissue when birds are five to ten days old. [FN39]
If the beak grows back, egg producers may conduct a second debeaking when birds are five to eight weeks old. [FN40]
A hen lays on average 259 eggs per year. [FN41]
After she ceases to produce eggs, at age two, she is packed into a crate and transported in a truck--without food, water, or protection from the elements--to a slaughterhouse. [FN42]
At her destination, she is shackled upside down on a conveyor belt before an automated knife slices her throat. She is fully conscious throughout this process.” [FN43]
Other “spent hens” [FN44]
are not so fortunate. Unlike chickens raised for their meat, chickens raised for their eggs do not taste so good, which means they have less value. [FN45]
Some producers have been known to pack them into containers and bulldoze them into the ground. [FN46]
Often lost in the narrative of the laying hen is what happens to her male counterpart. Eggs that produce laying hens also produce equal numbers of male chicks. [FN47]
Since male chicks do not lay eggs, they are of no value to the egg industry or to the broiler industry. [FN48]
Common methods used to dispose of unwanted male chicks include maceration, or grinding; carbon monoxide poisoning; cervical dislocation, or manually dislocating the spinal column from the skull; and suffocation. [FN49]
B. The Consumer's Moral Obligation
Food is an ethical issue--but you don't have to be fanatical about it. [FN50]
It is a myth that “cage-free” [FN51]
and “free-range” [FN52]
operations are separate from industrial animal production. [FN53]
Even small farms that do not raise hens under industrial production standards purchase their birds from factory-farm hatcheries. [FN54]
Industry guidelines permit producers to buy chicks from hatcheries that throw live male chicks in the dumpster. [FN55]
Moreover, at times when producers have surplus *58
caged eggs that they cannot sell, they package them in cage-free cartons. [FN56]
The best-selling author and journalist, Michael Pollan, has written that “[t]he industrial animal factory offers a nightmarish glimpse of what capitalism is capable of in the absence of any moral or regulatory constraint whatsoever.” [FN57]
While the regulatory framework to protect laying hens may be currently absent, the moral imperative is not. The suffering inherent in factory farming constitutes a “serious moral crisis.” [FN58]
Consumers are obligated to avoid financially supporting a morally indefensible institution. [FN59]
Philosophers have been debating the moral implications of consuming animals since ancient times. No one is certain how early vegetarian communities existed; however, there may have been vegetarian priests during Egypt's Old Kingdom in 3,200 B.C. [FN60]
“The idea that it is morally wrong to eat animals held sway for about one thousand years among some of the most prominent ancient Greek and Roman philosophers, including Pythagoras, Empedocles, Theophrastus, Ovid, Plutarch, Plotinus . . ., Porphyry . . ., and, perhaps, Plato.” [FN61]
It is “one of the best kept secrets in the history of ideas,” that Plato's Republic was to have been a vegetarian city. [FN62]
Ancient moral vegetarians were not able to persuade everyone of their belief in the moral status of animals. [FN63]
It would be the views of Aristotle, who believed that animals exist to serve the purposes of human beings, rather than Pythagoras, that would become part of the later Western tradition. [FN64]
The welfare/rights schism most likely arose because the first seminal works on the moral status of animals were made by two philosophers--Peter Singer, author of the 1975 classic Animal Liberation; and Tom Regan, who wrote The Case for Animal Rights in 1983. [FN65]
According to Singer, the moral idea is that human and animal interests ought to receive equal consideration. [FN66]
The interests of every being *59
affected by an action are to be taken into account and given the same weight as the interests of any other being. [FN67]
On unequal consideration views, animals have some moral status, but less than persons or humans have. [FN68]
No-consideration views hold that animals have no moral status. [FN69]
The older “no consideration” view that humans could justify limiting their concern for animals to cruelty alone-- Cartesian, Kantian--can no longer be considered reasonable. [FN70]
Although Singer has been called the “father” of the modern animal rights movement, the title is a misnomer. [FN71]
Singer has repeatedly noted that the ethical position on which the animal movement rests does not depend on animals having rights. [FN72]
Similarly, the moral obligation to hens does not depend on their having rights. [FN73]
Nor does it depend on equal consideration views. [FN74]
To stress how equal consideration views (animal welfare) differ from animal rights theory “is to risk overlooking the extent of their agreement.” [FN75]
Both views “are committed to a principle of equal consideration, extended beyond humanity: the principle that we ought to grant equal moral weight to everyone's prudentially comparable interests (regardless of species).” [FN76]
The modern philosophical debate in animal ethics, like the ancient debate, acknowledges that food has traditionally been constructed around nutrition, economics, and pleasure. [FN77]
While mere pleasure in consuming factory farmed products cannot justify purchasing such goods, whether such goods are nutritionally required and how much they cost are a relevant part of the moral equation. [FN78]
“Morally informed consumer actions have to retain some plausible relation with the suffering involved.” [FN79]
Eggs are not nutritionally required. [FN80]
While the cost of eggs *60
produced under more humane conditions may exceed the cost of factory-farmed eggs, [FN81]
consumers who are able to afford the higher-priced product and can readily access available alternatives, [FN82]
are morally obligated to avoid factory farmed eggs. [FN83]
The question of how much more consumers should pay for eggs is not merely economical, but social. [FN84]
A moral lifestyle cannot depend on a high income. [FN85]
III. Applicable Law
Laying hens have virtually no legal protection. Like other farmed animals, “[a]s far as the law is concerned, they simply do not exist.” [FN86]
The three major federal animal welfare laws do not apply to them. Like other farmed animals not used in biomedical research, testing, teaching, or exhibition, they are not covered by the Animal Welfare Act. [FN87]
Nor are they protected during transit. The Twenty-Eight Hour Law [FN88]
provides that animals cannot be transported across state lines for more than twenty-eight hours without being unloaded for at least five hours for rest, water, and feeding. [FN89]
However, the Twenty-Eight Hour Law does not apply to chickens. [FN90]
Laying hens are not even covered by the primary federal statute affecting farmed animals, the Humane Slaughter Act. [FN91]
Regulations promulgated under the Humane Slaughter Act [FN92]
exempt poultry from coverage. [FN93]
Applicable federal law is limited to the safety and inspection of the eggs that they produce.
Attempts to pass federal laws setting standards for farm animal housing, transport, or slaughter have generally been unsuccessful. [FN94]
Representatives Diane Watson (D-CA) and Elton Gallegly (R-CA) have introduced H.R. 4733, the “Prevention of Farm Animal Cruelty Act,” to require that agricultural producers supplying food to the federal government give laying hens, breeding pigs, and veal calves enough room to turn around and stretch their limbs. [FN95]
As of 2011, this bill has been referred to Committee. [FN96]
While a discussion of state law is beyond the scope of this article, animal advocacy organizations are increasingly focusing on reforming industrial animal production at the state level. [FN97]
These reforms are consistent with the 2008 *62
nonpartisan Pew Commission on Industrial Farm Animal Production, which recommends a phase out, within ten years, of all battery cages. [FN98]
These advocacy efforts persist even though common husbandry practices used on laying hens, such as intense confinement and debeaking, are exempt from most state anti-cruelty laws. [FN99]
Only five states have outlawed cruelty for its own sake, and in four of those states battery cages are permitted. [FN100]
California and Michigan are currently the only two states in which animal advocacy groups have been successful in banning battery cages. [FN101]
Similar measures, though not involving bans per se, are pending in Massachusetts, New York, and Rhode Island. [FN102]
Often these measures take many years to implement. For example, the California ban, passed in 2008, does not become effective until 2015. [FN103]
The Michigan ban, enacted one year later, does not become effective until 2019. [FN104]
Because California is the largest agricultural producer in the country and often a trend-setter on social issues, some see the California ban as “a bellwether for farm-animal-welfare reform nationwide.” [FN105]
However, the California measure passed by ballot initiative and ballot initiatives can only take place in the twenty-four mostly Western states that have them. [FN106]
Moreover, the future of some of these measures is uncertain. [FN107]
For example, following the public referendum on farmed animal confinement in *63
Arizona, several bills were introduced to impede future citizen initiatives. [FN108]
One topic that warrants further research is to what extent reform can be accomplished in the largest egg-producing states. [FN109]
Although agricultural interests in these states are influential and well financed, [FN110]
that does not foreclose the possibility of reform. In California the egg industry spent 9 million in opposing the farmed animal initiative, but found itself matched by a coalition of animal advocacy organizations led by The Humane Society of the United States, the largest animal welfare organization in the U.S. [FN111]
A. Overlapping Federal Agency Responsibility
As with many other federal laws that apply to farmed animals, the issue is not enforcement or effectiveness, it is jurisdiction. [FN112]
Shared agency jurisdiction over eggs is a classic example of this axiom. The Food and Drug Administration (FDA) and the Food Safety Inspection Service (FSIS) [FN113]
of the USDA share jurisdiction over eggs. However, neither agency has any authority to regulate the conditions under which laying hens are raised. [FN114]
The FDA has authority to regulate the safety of eggs in their shells under the Federal Food, Drug, and Cosmetic Act. [FN115]
The FDA also has primary responsibility for regulating egg labels under the Fair Packaging and Labeling Act. [FN116]
The FSIS has authority to assure the safety of domestic and imported liquid, frozen, and dried egg products, and the safe disposition of damaged and dirty eggs under the Egg Products Inspection Act. [FN117]
“Egg products” have been removed from *64
their shells for processing at facilities called “breaker plants.” [FN118]
Basic egg products include whole eggs, whites, yolks, and various blends--with or without non-egg ingredients--that are processed and pasteurized. [FN119]
Most of these products are not available in supermarkets, but are used in restaurants, hospitals, and other foodservice establishments as well as by bakers, noodle makers, and other food manufacturers. [FN120]
The FSIS also has jurisdiction over eggs under the voluntary shell egg grading program. [FN121]
The USDA grade shield on the carton means that the eggs were graded for quality and checked for weight (size) under the supervision of a trained USDA grader. [FN122]
B. Organic Foods Production Act of 1990
Under the National Organic Foods Production Act of 1990, [FN123]
the USDA has created a comprehensive system of production method labeling. Congress enacted the Organic Foods Production Act in response to the misleading claims, conflicting standards, and consumer confusion about the authenticity of organically labeled products. [FN124]
Organically labeled products may only contain organic ingredients, meaning no antibiotics, hormones, genetic engineering, radiation, or synthetic pesticides or fertilizers can be used. [FN125]
The Act required the Secretary of Agriculture to establish the National Organic Standards Board to assist in the development of standard for substances to be used in *65
organic production. [FN126]
Although the Act also required the Secretary to issue regulations implementing the legislation, it took the USDA ten years to promulgate these regulations, which became effective in 2002. [FN127]
These regulations created the National Organic Program, which requires organic products to originate from farms or handling operations certified by independent entities known as “certifying agents.” [FN128]
The USDA accredits certifying agents, which may be State, private, or foreign organizations that grant organic certification. [FN129]
Under the USDA's statutory mandate, the relevant provisions of which are identical to the enabling statute under which the FDA operates, the USDA has begun to regulate animal production method labeling on a limited number of products. [FN130]
The Organic Program requires producers labeling their products as “Organic” to adhere to qualitative animal confinement standards. [FN131]
These standards, which apply to all species of farmed animals, require producers to establish and maintain living conditions that accommodate the health and natural behavior of animals. [FN132]
Animals must be given access to the outdoors and shelter designed to allow for natural maintenance, comfort behaviors, and opportunity to exercise. [FN133]
C. The USDA Process Verified Program
For some animal production method labeling, the USDA has established the Livestock and Seed Process Verified Program (PVP), a [quasi-regulatory] process through which producers' marketing claims are given the USDA imprimatur. [FN134]
The Grain Inspection, Packers and Stockyards Administration (GIPSA), part of the USDA's Marketing and Regulatory Programs, administers the PVP pursuant to the USDA's authority under the Agricultural Marketing Act of 1946. [FN135]
The PVP is a *66
voluntary program available at a fee to producers of agricultural products. [FN136]
Companies with approved USDA Process Verified Programs can make marketing claims associated with their process verified points, which include age, source, feeding practices, or other raising and processing claims, and market themselves as “USDA Process Verified” with use of the “USDA Process Verified” shield and term. [FN137]
However, the USDA has not established any substantive guidelines for evaluating these claims. [FN138]
IV. Production Method Claims Associated with Laying Hens
Many of the production method claims made by egg producers cannot be verified by traditional means. [FN139]
Industry standards are factory farmed standards. Many of the claims made by producers are misleading to consumers. [FN140]
USDA-verified claims under the National Organic Program, though comprehensive, are problematic because of lax enforcement. [FN141]
Of all third-party verification programs, the most potentially meaningful ones are those conducted by non-governmental food certification programs. [FN142]
However the animal welfare guidelines used by at least two of these programs are similar to the factory farm standards used by the egg industry. Moreover eggs certified by these organizations are more expensive and can be difficult to find.
A. Credence Attributes
A consumer cannot tell by merely looking at or eating an egg whether it was produced under factory farm conditions. [FN143]
Attributes not observable at the point of sale or after consumption are known as credence attributes. [FN144]
Credence attributes are “indiscernible to the consumer before purchase, during, and even after consumption . . . and can describe content or process characteristics of the product. [FN145]
Content attributes, in contrast, refer to the physical properties of a given product or food. [FN146]
The protein content of an egg is an example of a content *67
The inability to verify producers' claims has allowed producers to make ambiguous and sometimes misleading claims. [FN148]
Increasingly consumer demand is playing a greater role in the conditions under which eggs are produced. [FN149]
However, given the small percentage of eggs that are not produced under factory farmed conditions, consumers who want to purchase eggs consistent with their moral views of these animals should consume selectively.
B. Industry Standards
1. “United Egg Producers Certified”
The United Egg Producers Certified label (UEP) is a voluntary program developed by United Egg Producers, the industry trade group that represents 90% of eggs produced in United States. [FN150]
More than 80% of all eggs produced in the United States are produced under UEP guidelines. [FN151]
The UEP guidelines allow hens to be continuously confined in cages. [FN152]
Cage sizes vary, but a typical size is 12 x 20 inches in which anywhere from one to five layers are housed. [FN153]
Access to the outdoors is not required, nor is litter for dust bathing and nest boxes required. [FN154]
The UEP Guidelines for both cage and cage-free hens recommend debeaking and using non-feed withdrawal methods. [FN155]
The guidelines recommend debeaking of day-old chicks while still at the hatchery using infrared beak treatment. [FN156]
This “treatment” consists of an automated process in which birds are immobilized using a head restraint and high intensity heat is used to penetrate through the beak's *68
corneum layer to the corneum-generating basal tissue. [FN157]
On older birds, the guidelines recommend using a hot blade. [FN158]
Regardless of what method is used, debeaking may result in a “reduced ability to feed, short-term pain, perhaps chronic pain, and acute stress.” [FN159]
Continuous subdued indoor lighting is permitted. [FN160]
Industry standards provide for how birds are to be transported, including transport to slaughter, and how they are to be slaughtered. [FN161]
If birds cannot be held upright, they are to be carried by both legs with up to three birds in each hand. [FN162]
Currently acceptable methods of slaughter include carbon dioxide, cervical dislocation, non-penetrating captive bolt, and electrocution. [FN163]
The killing of male chicks is permitted. [FN164]
For several years, the egg industry effectively distanced itself from any notion of factory farming. From 2002 to 2005, UEP labeled its cartons with the “Animal Care Certified” logo to identify eggs that had been produced in compliance with UEP's Animal Husbandry Guidelines. [FN165]
In 2003, the animal advocacy group Compassion Over Killing filed a complaint with the Better Business Bureau and a simultaneous parallel petition to the Federal Trade Commission, contending that the “Animal Care Certified” logo used by UEP was misleading to consumers. [FN166]
In 2003, the Better Business Bureau's National Advertising Division ruled that the “Animal Care Certified” logo on egg cartons was misleading and should be discontinued. [FN167]
UEP appealed that decision to the Better Business Bureau's National Advertising Review Board, which affirmed the National Advertising Division's conclusions. [FN168]
In 2005, while the petition with the FTC was pending, UEP changed its logo to “United Egg Producers certified” rather than “Animal Care Certified.” [FN169]
However, UEP guidelines do not specify how the logo should be displayed.
Egg companies with approved “USDA Process Verified Programs” can make *69
marketing claims associated with their production methods. [FN170]
However, because the USDA has not established any substantive guidelines for evaluating these claims, any producer's claim submitted through this program is effectively endorsed by the USDA. [FN171]
Sparboe Farms, headquartered in Litchfield, Minnesota, is the first egg producer in the nation to receive the “Process Verified” label. [FN172]
Content-wise, Sparboe's standards are very similar to UEP standards. [FN173]
C. Misleading Claims
One of the most common production method claims associated with eggs is “cage-free.” As discussed supra, approximately 5% of all eggs sold in the United States come from cage-free hens. [FN174]
Hens laying eggs labeled as “cage-free” are uncaged inside barns or warehouses and raised under artificial light. [FN175]
The American Marketing Service Poultry Standardization Branch of the USDA verifies cage-free status prior to labeling and monitors at least semi-annually. [FN176]
However, the AMS does not always perform this function and producers are permitted to self-report cage-free status. [FN177]
Eggs labeled cage free, thus, often come from hens packed side by side in massive sheds. [FN178]
These birds are subjected to painful and distressing procedures. For example, these birds may have their beaks cut and be subjected to forced molting. [FN179]
They have numerous health problems, such as prolapses, broken bones, and other injuries, and are sometimes left without veterinary care. [FN180]
Like other industrially raised hens, they are killed at a relatively young age. [FN181]
Male chicks are also killed. [FN182]
Some production method claims do not even apply to eggs. [FN183]
One prominent example of such a claim is “free-range” or “free-roaming.” The USDA defines “free range” or “free roaming” on its Website as requiring producers “to demonstrate to the Agency that the poultry has been allowed access to the outside.” [FN184]
However, this definition applies to poultry, or birds raised for their meat, not to birds raised for their eggs. In 2002, the USDA issued public notice and request for comments on livestock and meat industry production/marketing claims, including the claims “free-range,” “free roaming,” and “pasture raised.” [FN185]
“Similar provisions have not been adopted for egg labeling.” [FN186]
Misleading labels on egg cartons abound. [FN187]
Claims associated with eggs produced by Wegmans supermarket, Wild Harvest Natural Eggs, and Rose Acre Farms Eggs are just three examples of the misleading claims that proliferate in the marketplace. [FN188]
1. Wegmans “Food You Feel Good About” Grade AA Eggs [FN189]
Wegmans, a supermarket headquartered in Rochester, New York, with stores in six Northeastern states, [FN190]
has claimed that it is dedicated to animal welfare. [FN191]
For years Wegmans owned and operated the largest egg farm in New York state. [FN192]
Although it sold the farm to Kreher's in 2007, the eggs from Kreher's are still sold as Wegmans store brand. [FN193]
On the carton of its store brand eggs, Wegmans claims that its eggs are “Food You Feel Good About.” [FN194]
On the inside cover of its carton, beneath the boldface words, “Something to Crow About!” Wegmans represents that “[o]ur Foods You Feel Good About banner is your short cut to great tasting natural foods with no artificial colors, flavors, preservatives or trans fats.” [FN195]
This claim is misleading because the term “natural” has “no relevance to animal welfare *71
“Natural” merely indicates only that a product was minimally processed. [FN197]
In 2004, Compassionate Consumers, an animal advocacy group, entered the Wegmans egg facility to document the conditions inside. [FN198]
Their videotape showed hens with their heads caught in the wire mesh of their cages, hens submerged in manure pits, and hens living in cages with dead birds. [FN199]
Although the Humane Society of the United States urged Wegmans to phase out battery cages in 2005, [FN200]
eggs sold under the Wegmans brand name continue to come from caged hens. [FN201]
2. Wild Harvest Natural Grade A Cage Free Large Brown Eggs
Wild Harvest Natural Grade A Cage Free Large Brown Eggs are distributed by Supervalu, Inc, of Minneapolis, Minnesota, [FN202]
which operates as Shaw's Supermarkets in five New England states. [FN203]
Shaw's is known for carrying many “humanely raised” labels. [FN204]
The Wild Harvest Natural brand claims on its carton that its eggs are from hens fed a “100 % vegetarian diet free from antibiotics.” This claim is misleading because the government does not conduct testing to verify that no antibiotics are used. [FN205]
On the inside cover of the carton, Wild Harvest claims that its “humane practices and happy chickens” are “good for you and good for your conscience.” As discussed supra, this claim is also misleading because these hens, though cage-free, are still subjected to painful and distressing animal husbandry practices. [FN206]
As discussed supra, UEP guidelines do not specify that the UEP logo need be prominently displayed. [FN207]
The UEP logo on this particular carton is barely visible to *72
the naked eye. [FN208]
Moreover, the link to the UEP's Website, which lists all of the industry's animal husbandry guidelines, is in even smaller print. [FN209]
A consumer wanting to read those guidelines would need a magnifying glass to view the link.
3. Rose Acre Farms White Shell Eggs
Rose Acre Farms is a UEP-certified company. [FN210]
Rose Acre Farms is the second largest egg producer in the U.S. [FN211]
Rose Acre Farms produces several lines of eggs, including “White Shell Eggs,” “Brown Shell Eggs,” and “Free-Roaming Cage-Free Eggs.” [FN212]
As discussed supra, the term “free roaming” does not even apply to eggs. [FN213]
While the imagery on the “Free-Roaming Cage-Free Eggs” depicts hens outside, no such claims are made about its “White Shell Eggs.” [FN214]
Yet the imagery on these cartons also depicts hens outside in a similar manner. [FN215]
This imagery is misleading because it implies that the hens that produce the “White Shell Eggs” are not confined, when they in fact are. [FN216]
This imagery is also misleading because Rose Acre Farms is a UEP-certified company, which, as discussed supra, [FN217]
means that these hens are subjected to painful and distressing animal husbandry practices.
In 2010, Rose Acre Farms was the subject of an undercover investigation by the Humane Society of the United States. [FN218]
That investigation revealed that approximately 4 million laying hens and 1 million pullets [FN219]
were raised under intensely confined conditions. [FN220]
Investigators documented birds with broken bones, prolapsed uteruses, [FN221]
birds unable to reach food and water, and a manure pit under a pullet shed that a worker said had not been cleaned in two years. [FN222]
*73 D. Third-Party Certification Programs
The USDA's interpretation of the animal confinement standards under the Organic Program is continuing to evolve. [FN223]
The USDA currently interprets these regulations as meaning that birds are uncaged inside barns or warehouses, and are required to have outdoor access, but the amount, duration, and quality of outdoor access is undefined. [FN224]
Temporary confinement is permitted. [FN225]
Some certifying agents have used this loophole to keep birds confined indoors most or all of the time, sometimes in barns holding thousands of birds. [FN226]
Debeaking is permitted. Although forced molting is not addressed in the organic standard regulations, in 2009, the National Organic Standards Board recommended that forced molting be included. [FN227]
Although litter for dust bathing and nest boxes is not specifically addressed, clean dry bedding is required. [FN228]
As with all other USDA certified organic products, antibiotics are prohibited from being administered. [FN229]
The Organic Program has recently been cited for systemic problems in enforcement. [FN230]
At a time of “double-digit growth in the market for organic products,” the Organic Program's failure to promptly follow through on investigations has allowed some companies to continue falsely advertizing products as organic for years. [FN231]
To what extent egg producers may be falsely advertizing their products as organic is difficult to say. [FN232]
Although USDA organic eggs and egg products are among the top sellers among all organic food products, they represent only two percent of all egg sales in the United States. [FN233]
2. Private Food Certification Programs
Various humane certification programs have developed in response to the public's *74
growing concern about the cruel treatment of farmed animals. [FN234]
Producers voluntarily submit to being inspected for a fee. [FN235]
Upon passing inspection, producers are permitted to display a logo indicating that they have been certified as treating their animals humanely. [FN236]
However, who pays the fee may be driving the content of the animal husbandry standards in these programs. In some respects, it is difficult to determine how some of the standards in these programs differ from industry standards. Although the standards may be strict, they are intended to be commercially viable. [FN237]
Currently there are three of these food certification programs operating in the U.S.: “American Humane Certified,” [FN238]
“Certified Humane,” [FN239]
and “Animal Welfare Approved.” [FN240]
While all three programs prohibit continuous confinement to wire cages and require litter for dust bathing and nesting boxes, two of these programs permit debeaking. [FN241]
None of the guidelines in any of these programs address how birds are transported to slaughter or how they are slaughtered. [FN242]
Similarly, all three programs permit the killing of male chicks. [FN243]
All three programs are administered by non-profit animal welfare organizations. [FN244]
a. American Humane Certified
Of all the third-party verification programs, American Humane Certified standards are closest to industry standards. American Humane Certified is a voluntary fee-based service available to producers of animals raised for food. [FN245]
The American Humane Society operates the American Humane certified program. [FN246]
The American Humane certification program conducts annual audits and issues certificates to producers who meet standards developed by American Humane. [FN247]
Eggs certified by American Humane are permitted to display the American Humane *75
certified logo. [FN248]
This program specifies minimum space and perch requirements. [FN249]
However, access to the outdoors is not required. [FN250]
Debeaking is permitted before eleven days of age, and analgesia is not required. [FN251]
American Humane standards do not address how birds are transported to slaughter or how they are slaughtered. [FN252]
The killing of male chicks is permitted. [FN253]
Up to two-thirds of all cage-free eggs being produced in the U.S. now come from producers that have earned the American Humane Certified label. [FN254]
American Humane represents on its Website that eggs displaying this label can be found in restaurants and grocers. [FN255]
The Certified Humane Program is similar to industry standards in several respects. Certified Humane Program is a voluntary fee-based service available to producers of animals raised for food. [FN256]
Humane Farm Animal Care (HFAC) administers the Certified Humane program. [FN257]
HFAC is supported by two of the largest animal welfare organizations in the U.S.: The Humane Society of the United States and the American Society for the Prevention of Cruelty to Animals. [FN258]
The Certified Humane certification program conducts annual audits and issues certificates to producers who meet standards developed by Certified Humane. [FN259]
Eggs certified under this program are permitted to display the Certified Humane logo. [FN260]
This program specifies minimum space and perch requirements. [FN261]
However, access to the outdoors is not required. [FN262]
Debeaking is permitted before ten days of age, and analgesia is not required. [FN263]
The Certified Humane standards do not address how birds are transported to slaughter or how they are slaughtered. [FN264]
killing of male chicks is permitted. [FN265]
Certified Humane represents on its Website that eggs displaying this label can be found at restaurants, smaller markets, gourmet and specialty shops, and farms. [FN266]
c. Animal Welfare Approved
Of the three third-party programs, the Animal Welfare Approved program sets the highest standards for the humane treatment of farmed animals. [FN267]
Animal Welfare Approved is a voluntary program and is able to offer certification, technical, and marketing services to farmers at no charge. [FN268]
The Animal Welfare Institute administers the Animal Welfare Approved program. [FN269]
The Animal Welfare Approved certification program conducts annual audits and issues certificates to producers who meet standards developed by Animal Welfare Approved. [FN270]
Eggs certified under this program are permitted to display the Animal Welfare Approved logo. [FN271]
This program specifies minimum space and perch requirements. [FN272]
It is the only third-party program to require access to the outdoors. [FN273]
It is also the only program to prohibit debeaking. [FN274]
However, the Animal Welfare Approved standards do not address how birds are transported to slaughter or how they are slaughtered. [FN275]
While this program recommends the use of dual purpose breeds of birds so that males raised for meat are not killed at birth, the program still permits the killing of male chicks. [FN276]
Animal Welfare Approved represents on its Website that eggs displaying this label can be found in restaurants and gourmet and specialty markets, at farmers' markets, and through community supported agriculture. [FN277]
E. Petition to Change the Labeling Requirements for Eggs
In 2006, Compassion Over Killing [FN278]
and the Penn Law Animal Law Project [FN279] *77
filed a petition with the FDA to promulgate regulations for the labeling of production methods on egg cartons to avoid misleading consumers. [FN280]
Current FDA regulations refer only generally to the labeling of food in packaged form. [FN281]
The only regulations pertaining to eggs focus on human safety. [FN282]
The petition, supplemented in 2010, requests the FDA to take regulatory action to define qualitative animal confinement standards for laying hens. [FN283]
Petitioners are requesting the FDA to define: (1) “free-range eggs” as:
“[E]ggs that are laid by hens that are not confined to cages, and are given readily and easily available access to outdoor pastures, which all hens can access at once, with living vegetation and accessible overhead cover, for the period of their lives during which they produce eggs, excluding actual transport or during the provision of veterinary care by a licensed veterinarian though not for a period to exceed ten days. . .” [FN284]
“[E]ggs that are laid by hens that are not confined to cages but kept in a barn or other enclosed structure in which they are permitted to move freely for the period of their lives during which they produce eggs, excluding actual transport or during the provision of veterinary care by a licensed veterinarian though not for a period to exceed ten days” [FN285]
(3) “eggs from caged hens” as:
“[E]ggs that are laid by hens that are confined to a cage for any period of their lives during which they produce eggs, excluding actual transport or during the provision of veterinary care by a licensed veterinarian though not for a period to exceed ten days.” [FN286]
More than four years later, the FDA still has not taken action on the egg labeling petition. Meanwhile, petitioning the USDA does not appear to be a viable option for *78
reform. The Food Safety Inspection Service of USDA has said that shell egg labels are not within its jurisdiction because it is responsible for inspecting only egg products, not shell eggs. [FN287]
The misleading animal welfare claims associated with laying hens may reflect U.S. cultural norms. Some sociologists say that consumers, being predominantly urbanites, view farmed animal treatment through the prism of pet ownership and treatment and the media's tendency to generate images of anthropomorphized animals. [FN288]
Nowhere is this observation more evident than in the television commercial for Prop 2, the successful California ballot initiative on farmed animal confinement. The commercial features a singing cartoon pig that dances through barns as he liberates his fellow farm animals from their cages. [FN289]
The pig sings Prop 2-related lyrics set to the Stevie Wonder hit Superstition. [FN290]
The commercial is emblematic of what Peter Singer calls one of the biggest limitations on the animal movement, that is, the public's desire not to know disturbing facts. [FN291]
In this article, I have described disturbing facts about most laying hens in the United States. Industry standards are factory farmed standards. If consumers choose to purchase eggs, they do so knowing that “cage-free” hens are a subset of factory farmed production. [FN292]
Of all USDA-related labels, the USDA Organic label theoretically says the most about animal confinement, but, as discussed supra, organically raised eggs may not be what egg companies advertize them to be. [FN293]
The Animal Welfare Approved label appears to be the best option for consumers who wish to consume eggs consistent with their moral obligations to laying hens. [FN294]
However, finding eggs that display this label may be difficult. When I began the research for this article, I was eager to show the various animal welfare labels to the students in the Animal Law seminar that I teach at Rutgers-Camden School of Law. After learning that Whole Foods Market scored highest in offering nearly twice as many “humanely labeled” products per store as the two national supermarket chains tied for second, [FN295]
I headed to my local Whole Foods in Marleton, New Jersey. The *79
only third-party privately certified eggs that I was able to find at my local Whole Foods were American Humane certified eggs--factory farmed eggs. [FN296]
It has been suggested that “the industrial violence against animals must and will change, particularly because the spectacle man creates for himself in his treatment of animals will become intolerable.” [FN297]
The conditions under which most laying hens are raised is just one example of the industrial violence visited upon farmed animals in this country. This “spectacle” of violence will only become intolerable when people are willing to look at these animals. [FN298]
Currently, “[n]o other people in history have lived at quite so great a remove from the animals they eat.” [FN299]
Until that historical fact changes, there is little hope for radical reform. In the meantime, consumers should avoid financially supporting the producers that contribute to a morally indefensible system.
[FNa1]. Clinical Associate Professor of Law, Rutgers School of Law - Camden. I am grateful to Joyce Tischler for her comments on the animal welfare movement; and to David DeGrazia, who reviewed a draft of this article. At Rutgers - Camden, I owe special thanks to Sarah Cranston, for her outstanding research assistance; and to Stephen Tucker, who provided useful research assistance without being asked. Finally, I am indebted to Cheryl Leahy for her detailed comments and suggestions on my draft.
[FN1]. Wegmans Food You Feel Good About Eggs, http:// www.wegmans.com/webapp/wcs/stores/servlet/ProductDisplay? productId=372506&storeId=10052&langId=-1 (last visited May 25, 2011).
[FN2]. George Orwell, Animal Farm 8-9 (1945).
[FN3]. Shell eggs are distinguished from egg products, which have been removed from the shell. Egg Beaters™ are an example of an egg product. In this article, I use the term “shell eggs” and “eggs” interchangeably.
[FN4]. Peter Singer & Jim Mason, The Way We Eat: Why Our Food Choices Matter 6 (2006).
[FN5]. Id . at 37.
[FN6]. See Animal Husbandry Guidelines for U.S. Egg Laying Flocks, United Egg Producers, (2010), http://www.uepcertified.com/program/guidelines/ (explaining that beak trimming is recommended to prevent feather pecking and cannibalism). See also Ani B. Satz, Animals As Vulnerable Subjects: Beyond Interest-Convergence, Hierarchy and Property, 16 Animal L. 65, 96 (2009).
[FN7]. Contemporary concerns about the welfare of intensively farmed animals are generally considered to have originated with the 1964 publication of Animal Machines by Ruth Harrison of the United Kingdom. Harrison described what she called a “new type of farming ...[with] animals living out their lives in darkness and immobility without the sight of the sun, of a generation of men who see in the animal they rear only its conversion to human food.” Pew Commission on Industrial Farm Animal Production, Putting Meat on the Table: Industrial Farm Animal Production in America 35 (2008), available at http:// www.ncifap.org/.
[FN8]. See Kim Severson, Suddenly, the Hunt is On For Cage-Free Eggs, The N.Y. Times, Aug. 12, 2007, http://www.nytimes.com/2007/08/12/us/12eggs.html?_ r=1.
[FN9]. See Singer & Mason, supra note 4 at 6 (noting that 98% of eggs sold in the United States are from caged hens).
[FN10]. Of course, one can purchase products for someone else to eat, and consume products that someone else has bought. Tzachi Zamir, Ethics and Beasts: A Speciesist Argument For Animal Liberation 110 (2007). Consumers have less control over the types of eggs and “egg products,” discussed infra, that they consume in prepared foods and in food service establishments. For a discussion of the food service establishments that use cage-free eggs, see Craig M. Pease, Labels on Meat: What They Do and Do Not Tell Us About Animal Welfare, Notes for ABA Tort Trial & Insurance Section Teleconference: Animal Rights and the Public's Right to Know: Farmed Animal Welfare and Consumer Labeling Issues (Sept. 28 2010) (on file with author).
[FN11]. Compassion Over Killing, Citizens' Petition Before Food and Drug Administration to Change the Labeling Requirements for Eggs Sold in the United States, Docket No. 2006P-0394, 10-11 (2010).
[FN12]. Ninety-eight percent of eggs are produced by hens confined in cages, which 86.2% of the public finds unacceptable. Compassion Over Killing, supra note 11, at 9 (quoting Poll: U.S. Citizens Support Humane Treatment for Egg-Laying Hens, REUTERS, CNN, Sept. 20, 2000, available at http:// archives.cnn.com/2000/FOOD/news/09/20/food.hens.reut/index.html (last visited Feb. 3, 2011)).
[FN13]. See Compassion Over Killing, supra note 11, at 9-11 (citing Matthew Liebman, Reflections on Proposition 2 and Consumer Choices, Animal Legal Defense Fund Blog (June 14, 2010), http://www.aldf.org/article.php?id=1373 (citing the correlation between the increased consumer awareness in California of egg production methods following Proposition 2, and the corresponding 180% increase in demand for cage-free eggs, 20% increase in purchase of organic eggs, and decline in demand for battery-cage produced eggs).
[FN14]. See David DeGrazia, Moral Vegetarianism from a Very Broad Basis, 6 J. of Moral Phil. 143, 148 (2009) (arguing that “all people with ready access to healthful alternatives are morally obligated to make every reasonable effort not to purchase meat, eggs or dairy products from factory farms.”).
[FN15]. See, e.g., David J. Wolfson & Marianne Sullivan, Foxes in the Hen House: Animals, Agribusiness, and the Law: A Modern American Fable, in Animal Rights: Current Debates and New Directions 209-12 (Cass R. Sunstein & Martha C. Nussbaum eds., 2004) (explaining that state criminal animal cruelty statutes do not protect factory farmed animals); Jeff Welty, Forward Animal Law: Thinking About the Future, 70 Law & Contemp. Probs. 1, 5-6 (2007) (discussing different legal means to achieve animal rights); DeGrazia, supra note 14, at 150 (factory farms attempt to raise as many animals as possible in the smallest possible space in order to lower costs and maximize profits); In Defense of Animals: Factory Farming Facts, http:// www.idausa.org/facts/factoryfarmfacts.html (last visited June 2, 2011) (“Factory farming began in the 1920s soon after the discovery of vitamins A and D; when these vitamins are added to feed, animals no longer require exercise and sunlight for growth. This allowed large numbers of animals to be raised indoors year-round. The greatest problem that was faced in raising these animals indoors was the spread of disease, which was combated in the 1940s with the development of antibiotics. Farmers found they could increase productivity and reduce the operating costs by using mechanization and assembly-line techniques.”).
[FN16]. See, e.g., Tom Regan, The Case for Animal Rights (1983); Animal Rights: The Abolitionist Approach, http://www.abolitionistapproach.com (advocating an abolitionist approach to animal rights by avoiding eating animals and animal products)(last visited May 25, 2011); Gary L. Francione & Anna E. Charlton, Animal Advocacy in the 21st Century: The Abolition of the Property Status of Nonhumans, in Animal Law and the Courts: A Reader (Taimie L. Bryant et al. eds., 2008); Cora Diamond, Eating Meat and Eating People in Animal Rights: Current Debates and New Directions 93-107 (Cass R. Sunstein & Martha C. Nussbaum, eds. 2004); DeGrazia, supra note 14, at 145.
[FN17]. Proponents of animal welfare focus on the humane treatment of animals, including the prevention of cruelty to animals. Advocates of animal rights oppose the use of animals by humans, including the consumption of animals and animal products, and the use of animals for experimentation. Francione & Charleton, supra note 16, at 11. Criticism of each side's respective position abounds. See, e.g., Satz, supra note 6, at 71 (arguing that current scholarship is “entrenched in a paralyzing debate about whether categorizing animals as ‘persons' instead of ‘property’ will improve their legal protections); Jonathan R. Lovvorn, Animal Law in Action: The Law, Public Perception, and the Limits of Animal Rights Theory as a Basis For Legal Reform, 12 Animal L. 133, 148 (2006) (arguing that we need ‘foot soldiers, not philosophers, and the handful of scholars who are already devoted to exploring what a future world with animal rights might look like are more than sufficient for that particular task. Far too many of the rest of us are trapped in their seductive web of animal rights theory--unable, or perhaps unwilling, to roll up our sleeves and set to work helping animals the hard way‘); Francione & Charleton, supra note 16, at 7 (criticizing animal law practitioners for not challenging ‘the property status of animals and instead seek[ing] to integrate animals into traditional property concepts [which] will only serve to reinforce the status of animals as commodities‘).
[FN18]. See James M. Jasper & Dorothy Nelkin, The Animal Rights Crusade: The Growth of a Moral Protest 8-9 (1992) (defining three types of animal advocates: welfarists, pragmatists, and fundamentalists. Welfarists “accept most current uses of animals, but seek to minimize their suffering” while pragmatists and fundamentalists are committed to fundamentally changing the human-animal relationship. However, where pragmatists are willing to reduce animal use through legal actions, political protests, and negotiation,” fundamentalists “demand the immediate abolition of all exploitation of animals on the grounds that animals have inherent inviolable rights.‘)
[FN19]. For example, a strict vegan would not wear leather. Sometimes this practice extends to a prohibition on consuming honey. Zamir supra note 10, at 95 n.1. The term “vegan” was coined about a century later than the term “vegetarian” when Donald Watson, wrote in Vegan News that ‘Vegetarian’ and ‘Fruitarian’ [we]re already associated with societies that allow the ‘fruits' of cows and fowls.‘ Needing ‘a new and appropriate word,‘ he formed the Vegan Society in 1944. The Vegan News, http://www.ukveggie.com/vegan_news/ (last visited May 26, 2011). For a definition, see Vegan, Oxford English Dictionary Online, (2009), available at http://oed.com/.
[FN20]. Francione & Charleton, supra note 16, at 7 (arguing that “it is imperative that there be a social and political movement that regards veganism as its moral baseline” and contending that we should abolish all uses of animals--going so far as to say that we should stop bringing animals into existence). See generally Animal Rights supra, note 16 (arguing that the only way to provide animals with rights is to adopt a vegan lifestyle); Gary L. Francione, Rain Without Thunder 110-11 (2005) (arguing that when conflict arises between human rights and the rights of animals, the rights of the animal should prevail).
[FN21]. See The Vegetarian Resource Group, http:// www.vrg.org/nutshell/faq.htm#poll (last visited May 26, 2011) (noting that 3% of adults surveyed in 2009 said they never ate meat, poultry or fish and were classified as vegetarians and 1/3- 1/4 of vegetarians surveyed were vegans).
[FN22]. See Lovvorn, supra note 17, at 138 (arguing it is an intellectual indulgence and a vice for animal lawyers to concern ourselves with the advancement of such impractical theories while billions of animal languish in unimaginable suffering that we have the power to change...these revolutionary legal theories sound disturbingly similar to, and provide academic fuel for, the rhetoric of some direct action proponents--i.e., that animals can never receive protection without radically revising the U.S. legal system.).
[FN23]. DeGrazia, supra note 14, at 145. For a general discussion of animal ethics, see David DeGrazia, Taking Animals Seriously: Mental Life and Moral Status 1-10 (1996).
[FN24]. Zamir, supra note 10, at 96 (arguing that “[a]nimals gain more from those that write on their behalf if these do not try to overzealously embarrass people who are willing to make only partial concessions to the pro-animal cause”).
[FN25]. Francione & Charleton, supra note 21, at 14.
[FN26]. See generally Satz, supra note 6. But see Pease, supra note 10.
[FN27]. Robert W. Prickett, F. Bailey Norwood & Jayson L. Lusk, Consumer Preferences for Farm Animal Welfare: Results from a Telephone Survey of U.S. Households, (2008) (unpublished manuscript) (on file with author) (telephone survey showing that 77% believe that animal welfare is more important than low prices); See Gaverick Matheny & Cheryl Leahy, Farm-Animal Welfare, Legislation, and Trade, 70 Law & Contemp. Prob. 325, 356 (2007) (finding that 95 percent of Americans think that farmed animals should be well cared for).
[FN28]. See DeGrazia, supra note 14, at 159 (arguing that the “vast majority of readers of [a philosophical] ... essay” can avoid factory farmed products). While I harbor no delusions that this article will be widely read, I recognize that anyone who is likely to be reading it is more likely to be part of the “affluent world.” See Zamir, supra note 10, at 110 (explaining that vegetarians are morally obligated to purchase products that support moral progress even if they are more expensive).
[FN29]. Michael Pollan, Omnivore's Dilemma: A Natural History of Four Meals 317 (Penguin, 2007).
[FN30]. By “typical,” I mean a hen raised under factory farmed conditions.
[FN31]. “The rather odd term ‘battery cage’ is derived from the process of stacking cages one on the other, as in a ‘battery’ of guns.” Wolfson & Sullivan, supra note 15, at 218.
[FN32]. Pollan, supra note 29, at 317.
[FN33]. Wolfson & Sullivan, supra note 15, at 218.
[FN34]. Severson, supra note 8.
[FN35]. Pollan, supra note 29, at 317.
[FN37]. DeGrazia, supra note 14, at 151. See also Animal Husbandry Guidelines for U.S. Egg Laying Flocks, supra note 6 (discussing the advantages and disadvantages of beak trimming). “Researchers have observed that [c]hickens who've just had their beaks trimmed peck much less, another obvious form of ‘pain guarding.”’ Pain guarding refers to “limit[ing] the use of an injured body part to guard it from further injury.” Temple Grandin & Catherine Johnson, Animals in Translation: Using the Mysteries of Autism to Decode Animal Behavior 183 (2005).
[FN38]. United States Department of Agriculture, Agricultural Research Service, Laying Hen Welfare Fact Sheet, Current Developments in Beak-Trimming, (Fall 2010), http://www.ars.usda.gov/SP2UserFiles/Place/36022000/Beak%20Trimming%C20Fact%S̈heet.pdf.
[FN41]. Industry FAQ, U.S. Poultry & Egg Association, http:// www.poultryegg.org/faq/faq.cfm.
[FN42]. DeGrazia, supra note 14, at 151.
[FN43]. Id. In 2009, 138.6 million laying hens were raised, transported, and slaughtered in this manner. National Agricultural Statistics Service, Poultry Slaughter, http:// usda.mannlib.cornell.edu/MannUsda/viewDocumentInfo.do?documentID=1131.
[FN44]. A “spent hen” has reached the end of her productive life. Singer & Mason, supra note 4, at 106.
[FN49]. Humane Facts: Better Choices For a Better World, http:// www.humanefacts.org/labels.htm (last visited May 26, 2011); see also Animal Husbandry Guidelines for U.S. Egg Laying Flocks, supra note 6, at 13 (discussing methods for euthanizing male chicks); Chicks Being Ground Up Alive Video, The Huffington Post (Oct. 17, 2009, 5:12 AM) http:// www.huffingtonpost.com/2009/09/01/chicks-being-ground-up-al_n_273652.html (stating the United Egg Producers confirmed that over 200 million chicks are killed each year).
[FN50]. Singer & Mason, supra note 4, at 281.
[FN51]. See generally “Free-Range” Poultry and Eggs Not All They're Cracked Up To Be, United Poultry Concerns, http://www.upc-online.org/freerange/freerange.pdf (discussing the realities behind “free range” and “cage-free” labels) [hereinafter United Poultry Concerns].
[FN52]. U.S. Dep't of Agric., Food Safety and Inspection Service, Meat and Poultry Labeling Terms (2010).
[FN53]. United Poultry Concerns, supra note 51, at 7.
[FN55]. Id. at 6.
[FN56]. Singer & Mason, supra note 4, at 110.
[FN57]. Pollan, supra note 29, at 318.
[FN58]. Carrie Packwood Freeman, Struggling for Ideological Integrity in the Social Movement Framing Process: How U.S. Animal Rights Organizations Frame Values and Ethical Ideology in Food Advocacy Communication 13 (June 14, 2008) (unpublished Ph.D. thesis, University of Oregon) (on file with Knight Library, University of Oregon) (citing Jacques Derrida & Elisabeth Roudinesco, For What Tomorrow...: A Dialogue (Jeff Fort trans., Stanford University Press (2004)). Packwood Freeman observes Derrida's “lack of faith in the law and the animal rights movement's proposed use of the law, based on a humanist model of human rights, as the philosophical basis for solving [the industrial violence against animals] problem.” Id. at 34.
[FN59]. See DeGrazia, supra note 14, at 159 (suggesting rule that consumers make every reasonable effort not to provide financial support to institutions that cause extensive, unnecessary harm).
[FN60]. Colin Spencer, The Heretic's Feast: A History of Vegetarianism 32 (1995).
[FN61]. Daniel Dombrowski, A Very Brief History of Philosophical Vegetarianism and Its Influence, in Food For Thought: The Debate Over Eating Meat 22 (Steve F. Sapontzsis, ed., 2004).
[FN62]. Id. Socrates, in Plato's Republic, advocates “a simple diet of bread, cheese, vegetables, and olives, with figs for desert, and wine in moderation.” Singer & Mason, supra note 4, at 3.
[FN63]. Dombrowski, supra note 61, at 22.
[FN64]. Peter Singer, Animal Liberation 188-89 (Harper Perrenial 2009).
[FN65]. DeGrazia, supra note 14, at 144.
[FN66]. Singer, supra note 64, at 4 (quoted in Pollan, supra note 29, at 307). Equal consideration of interests is not the same thing as equal treatment. Pollan, supra note 29, at 308. Children have an interest in being educated, pigs in rooting around in the dirt. Id. Singer draws on the 18th century philosopher Jeremy Bentham, founder of the reforming utilitarian school of moral philosophy. Bentham's system of ethics applied the formula, “Each to count for one and none for more than one.” Singer, supra note 64, at 5.
[FN67]. Id . at 5.
[FN68]. DeGrazia, supra note 14, at 147.
[FN70]. Zamir, supra note 10, at 32.
[FN71]. That title more accurately belongs to Tom Regan, the animal rights philosopher who argues that the human use of nonhuman animals “whether in the laboratory, on the farm, or in the wild, is wrong in principle and should be abolished in practice....” Rudacille, supra note 18, at 141 (quoting Tom Regan, Animal Rights, in Encyclopedia of Animal Rights and Animal Welfare, Volume 1 36, 36 (Marc Bekoff ed., Greenwood Press 2d ed. 2010)).
[FN72]. Peter Singer, Animal Liberation at 30, N.Y. Review of Books May 15, 2003 (“[T]he ethical position on which the [animal rights] movement rests needs no reference to rights.”). “The question is not Can they reason? Or Can they talk? But Can they suffer?” pollan supra note 29, at 308 (quoting Jeremy Bentham, The Principles of Morals and Legislation, in The Collected Works of Jeremy Bentham 143 (John Bowring ed., 1838)).
[FN73]. See DeGrazia, supra note 14, at 147 (stating case for moral vegetarianism does not depend on animal-rights views).
[FN74]. See id. (stating case for moral vegetarianism similarly does not depend on equal consideration for animals).
[FN75]. Id. at 145.
[FN77]. Packwood Freeman, supra note 58, at 11.
[FN78]. See DeGrazia, supra note 14, at 154-56 (discussing two concerns with abandoning factory farming: the nutritional quality of alternatives, and the economic harm in countries in which it provides jobs and is a main cog in the economy).
[FN79]. Zamir, supra note 10, at 112.
[FN80]. See DeGrazia, supra note 14, at 154-55 (stating USDA's position that vegetarian diets can meet all the recommendations for nutrients, given the appropriate variety and amounts of food). The American Diabetic Association takes the position that an appropriately planned vegetarian or vegan diet is ‘healthful, nutritionally adequate, and provide[s] health benefits in the prevention and treatment of certain diseases [and] can be perfectly healthful at all stages of life ....” American Diabetic Association, Position of the American Diabetic Association: Vegetarian Diets, 109 Journal of the American Diabetic Association 1266, 1266 (2009).
[FN81]. Singer & Mason, supra note 4, at 103, 109.
[FN82]. A discussion of alternatives to eggs is beyond the scope of this article. For a list of alternatives, see VEGAN OUTREACH, http:// www.veganoutreach.org (last visited April 1, 2011).
[FN83]. Singer & Mason, supra note 4, at 109.
[FN84]. Zamir, supra note 10, at 110 n.13.
[FN86]. Wolfson & Sullivan, supra note 15, at 206.
[FN87]. 7 U.S.C. § 2132(g) (2002) (excluding “farm animals ... used or intended for use as food” from the protection of the Animal Welfare Act). “The term ‘animal’ [excludes] ... farm animals, such as ... livestock or poultry, used or intended for use as food or fiber, or livestock or poultry used or intended for use for improving animal nutrition, breeding, management, or production efficiency, or for improving the quality of food or fiber.” Id.
[FN88]. 49 U.S.C. § 80502 (1994). The Twenty-Eight Hour Law was enacted in 1873 to require rail cars to stop every twenty-eight hours to provide food, water, and at least five consecutive hours of rest to livestock before the resuming transport. Id. § (a)(1). The law applies only to livestock transported across state lines. Id. While generally considered to be an anti-cruelty law, it was motivated in large part to reduce animal losses in transit. Pew Commission, supra note 7, at 38. The law was strengthened in 1906, after publication of Upton Sinclair's The Jungle, and was amended again in 1994 to apply to animals transported by “rail carrier, express carrier, or common carrier (except by air or water).” Id. (citing 49 U.S.C.A. § 80502(a)(1)). For years, the USDA, which administers the law, contended that it did not apply to transport by trucks. Wolfson & Sullivan, supra note 15, at 207-08. Then, in 2006, in response to a petition filed by humane groups, the USDA reversed its position, and announced that the law applied to trucks. Id.
[FN89]. 49 U.S.C. § 80502(a)(1).
[FN90]. The law also does not cover turkeys. 49 U.S.C. § 80502.
[FN91]. Wolfson & Sullivan, supra note 15, at 207.
[FN92]. 7 U.S.C. §§ 1901-07 (1958).
[FN93]. Id. §§ 1901-06; Fed. Dep't of Agric., 70 Fed. Reg. 56624-01 (Sept. 28, 2005).
[FN94]. Pew Commission, supra note 7, at 38. The exception is the passage of the standards for the transport of slaughter horses, authorized under the 1996 Farm Bill. Id. Indeed, few bills dealing with farmed animal welfare regulation have been introduced in Congress and most have failed. Id.
[FN95]. H.R. 4733: Prevention of Farm Animal Cruelty Act, GovTrack, http:// www.govtrack.us/congress/bill.xpd?bill=h111-4733&tab=summary (last visited Mar. 24, 2011). (‘Prohibit[ing] a federal agency from purchasing any food product derived from a pig during pregnancy, a calf raised for veal, or an egg-laying hen used or intended for use in food production (covered animal) unless that animal, during the entire period covered by that definition, was provided adequate space to stand up, lie down, turn around freely, and fully extend all limbs.‘).
[FN96]. Id. All states have some form of anti-cruelty legislation and enforcement is becoming stricter, with more significant fines for violations. However, 41 states exempt certain “normal” farm practices. See 18 Pa. Cons. Stat. Ann. § 5511 (West 2010); 510Ill. Comp. Stat. Ann.70/13 (West 2010); Ala. Code § 13A-11-14 (2010); Alaska Stat. Ann. § 11.61.140 (West 2010); Ariz. Rev. Stat. Ann. § 13-2910 (2011); Ark. Code Ann. § 5-62-105 (West 2010); Colo. Rev. Stat. Ann. § 18-9-201.5 (West 2010); Conn. Gen. Stat. Ann. § 53-247 (West 2010); Del. Code Ann. tit. 11, § 1325 (West 2010); Fla. Stat. Ann. § 28.125 (West 2010); Ga. Code Ann. § 16-12-4 (West 2010); Haw. Rev. Stat. § 711-1108.5 (West 2010); Idaho Code Ann. § 25-3514 (West 2010); Ind. Code Ann. § 35-46-3-5 (West 2010); Kan. Stat. Ann. § 21-4310 (West 2010); Ky. Rev. Stat. Ann. § 525.130 (West 2010); La. Rev. Stat. Ann. § 14:102.1 (2010); Mass. Gen. Laws Ann. ch. 272, § 77 (West 2010); Md. Code Ann., Crim. Law § 10-603 (West 2010); Me. Rev. Stat. Ann. tit. 7, § 4011 (2009); Mich. Comp. Laws Ann. §750.50 (West 2010); Mo. Ann. Stat. § 578.007 (West 2010); Mont. Code Ann. § 45-8-211 (2009); N.C. Gen. Stat. Ann. § 14-360 (West 2010); N.H. Rev. Stat. Ann. § 644:8 (2010); N.J. Stat. Ann. § 4:22-16.1 (West 2010); N.M. Stat. Ann. § 30-18-1 (West 2010); Nev. Rev. Stat. Ann. § 574.010 (West 2010); Ohio Rev. Code Ann. § 959.13 (West 2011); Or. Rev. Stat. Ann. § 167.335 (West 2010); S.C. Code Ann. § 47-1-40 (2010); S.D. Codified Laws § 40-1-33 (2010); Tenn. Code Ann. § 39-14-202 (West 2010); Tex.PenalCode Ann. § 42.092 (West 2009); Utah Code Ann. § 76-9-301 (West 2010); Va. Code Ann. § 3.2-6570 (West 2010); Vt. Stat. Ann. tit. 13, § 351 (West 2010); W. Va. Code Ann. § 61-8-19 (West 2011); Wash. Rev. Code Ann. § 16.52.185 (West 2011); Wis. Stat. Ann. § 951.14 (West 2010); Wyo. Stat. Ann. § 6-3-203 (West 2010). Seventeen states exempt livestock from their anti-cruelty statutes. See R.I. Gen. Laws § 4-1-5 (2010); Ariz. Rev. Stat. Ann. § 13-2910 (2011); Cal. Penal Code § 599(c) (West 2010); Colo. Rev. Stat. Ann. § 18-9-202 (West 2010); Del. Code Ann. tit. 11, § 1325 (West 2010); Haw. Rev. Stat. § 711-1108.5 (West 2010); Iowa Code Ann. § 717B.1 (West 2010); Mich. Comp. Ann. §750.50 (West 2010); Miss. Code Ann. § 97-41-2(9) (West 2010); N.D. Cent. Code Ann.§ 36-21.1-15 (West 2010); Ohio Rev. Code Ann. § 959.13 (West 2011); Or. Rev. Stat. Ann. § 167.335 (West 2010); S.C. Code Ann. § 47-1-40 (2010); S.D. Codified Laws § 40-1-17 (2010); W. Va. Code Ann. § 7-10-4 (West 2011); Wash. Rev. Code Ann. § 16.52.185 (West 2011); Wis. Stat. Ann. § 951.14 (West 2010). An analysis of state anti-cruelty provisions is beyond the scope of this article. For a detailed discussion of how state anti-cruelty statutes generally do not apply to farmed animals, see e.g., Wolfson & Sullivan, supra note 15, at 209-12 (noting high burden of proof required to prosecute under a state criminal anti-cruelty statute and “rapidly growing trend, as farming practices have become more and more industrialized and possibly less and less acceptable to the average person, the farmed-animal industry has persuaded the majority of state legislatures to actually amend their criminal anticruelty statutes to simply exempt all ‘accepted,’ ‘common,’ ‘customary,’ or ‘normal’ farming practices.”)
[FN97]. Pew Commission, supra note 7, at 38. Virtually all of these measures have been backed by the most powerful national animal advocacy organization in this country--The Humane Society of the United States, which has a budget of over $130 million. Maggie Jones, The Barnyard Strategist, N.Y. Times, Oct. 26, 2008, at MM47.
[FN98]. The Pew Commission on Industrial Farm Animal Production was charged with examining the current U.S. system of food animal production and its impact on public health, the environment, animal welfare, and rural communities. Pew Commission, supra note 7, at 57. The Pew Commission also recommends a phasing out, within ten years, of other intense confinement measures, including: (1) gestation crates, where sows are kept for their entire 124-day gestation period, (2) restrictive farrowing crates, in which sows are not able to turn around or exhibit natural behavior, and (3) the tethering and/or individual housing of calves for the production of white veal. Id. at 85.
[FN99]. All states have some form of anti-cruelty legislation and enforcement is becoming stricter, with more significant fines for violations. However, twenty-five states specifically exempt farm animals from animal cruelty laws, and in 30 states certain “normal” farm practices are exempted. Id. at 38.
[FN100]. Satz, supra note 6, at 104. These states are Arizona, California, Colorado, Florida, and Oregon. Id. at 122 n.253.
[FN101]. Prevention of Farm Animal Cruelty Act, Cal. Health & Safety Code §§ 25990-95 (West 2008) (§§ 25990-25990.2 & 25990.5-25994.8 repealed by 1995 ch. 415 (S.B. 1360)); id. § 166 effective January 1, 2015 (prohibiting confinement of certain farm animals in manner that does not allow them to turn around freely, lie down, stand up, and fully extend their limbs); Mich. Comp. Laws § 287.746 (West 2010).
[FN102]. H.R. 815, 186th Gen. Assembly (Mass. 2009) (prohibiting cruel confinement of certain farm animals). H.R. 815 does not specifically prohibit battery cages, but enclosures must be large enough that the hen can move freely (turn around, extend limbs fully without touching sides of cage). Id.; H.R. 8163, 2009 Gen. Assembly, Reg. Sess. (N.Y. 2009) (prohibiting cruel confinement of certain farm animals). H.R. 8163 does not specifically prohibit battery cages, but enclosures must be large enough that the hen can move freely (turn around, extend limbs fully without touching sides of cage). Id. It has stalled in the Committee on Agriculture. Id.; Prevention of Farm Animal Cruelty Act, H.R. 7769, 2009 Gen. Assembly (R.I. 2009) (prohibiting use of gestation crates, veal crates and battery cage). H.R 7769 does not specifically prohibit battery cages, but enclosures must be large enough that the hen can move freely (turn around, extend limbs fully without touching sides of cage). Id. In April, Committee recommended measure be held for further study. Id.
[FN103]. Cal. Health & Safety Code § 25990.
[FN104]. Dan Eggen, Egg Industry Alarmed About Efforts to Limit Cage Sizes, Wash. Post, Sept. 6, 2010, http:// www.washingtonpost.com/wpdyn/content/article/2010/09/03/AR2010090302455.html? sid=ST2010091005802.
[FN105]. Jones, supra note 97.
[FN106]. Initiative and Referendum Institute, Ballotwatch, University of Southern California Gould School of Law, 1 (2010), www.iandrinstitute.org/BW% 202010-1%20Preview%20(9-26).pdf.
[FN107]. Satz, supra note 6, at 104.
[FN109]. In 2009, Iowa had at least double the number of laying hens of Ohio, Pennsylvania, Indiana, and California, the states with the second-, third-, fourth-, and fifth-highest number of layers, respectively. General U.S. Stats, United Egg Producers, (March 2011), http:// www.unitedegg.org/GeneralStats/default.cfm.
[FN110]. Eggen, supra note 104.
[FN111]. Singer & Mason, supra note 4, at xii.
[FN112]. Wolfson & Sullivan, supra note 15, at 226.
[FN113]. The FSIS is the public health agency within the USDA responsible for regulating the production, nutritional standards, and labeling of domestic and imported meat, poultry and some egg products. Shannon G. May, Importing a Change in Diet: The Proposed Food Safety Law of 2010, 65 Food & Drug L.J. 1, 4 (2010).
[FN114]. See Anastasia S. Stathopoulos, You Are What Your Food Eats: How Regulation of Factory Farm Conditions Could Improve Human Health and Animal Welfare Alike, 13 N.Y.U. Legis. & Pub. Pol'y 407, 434 (2010) (noting the FDA and USDA have an ad hoc approach to regulating food safety by inspecting slaughter houses and processing plants, and the organizations could benefit by examining at the farm level).
[FN115]. Oversight of Egg Safety, U.S. Food and Drug Admin., (July 1, 1999), http://www.fda.gov/NewsEvents/Testimony/ucm115053.htm. “[The] FDA is responsible for the safety of all imported and domestic food products sold in interstate commerce that do not fall under the jurisdiction of the FSIS. This includes produce, dairy products, nuts, grains, juice, most seafood, processed foods, eggs and some meats.” May, supra note 113, at 4. See also Centers and Offices, U.S. Food and Drug Admin., http:// www.fda.gov/AboutFDA/CentersOffices/default.htm (noting that the FDA is responsible for protecting public health by assuring the safety of the nation's food supply).
[FN116]. 15 U.S.C.A. §§ 1452-54 (West, through P.L. 112-3 (excluding P.L. 111-296, 111-314, 111-320, 111-350, 111-383)).
[FN117]. 21 U.S.C.A. §§ 1031-56 (West, through P.L. 112-3 (excluding P.L. 111-296, 111,314, 111-320, 111-350, 111-377, 111-383)). The Egg Products Inspection Act authorizes the USDA to require egg labels to contain “such other information as the Secretary may require by regulations to describe the products adequately and to assure that they will not have false or misleading labeling.” Id.
[FN118]. Scrambled Regulation, Akron Beacon Journal, Aug. 27, 2010, at A.
[FN119]. Egg Products Preparation, U.S Dep't of Agric., Food Safety and Inspection Serv., http://www.fsis.usda.gov/factsheets/focus_on_shell_ eggs/index.asp#9 [hereinafter USDA, FSIS].
[FN120]. USDA, FSIS, supra note 119.
[FN121]. Jeanne Yacoubou, Egg Labels and Certifications: What Do They Mean? 2 Vegetarian Journal 9, 10 (2007). If companies choose to have their eggs graded, they pay for this USDA service. USDA, FSIS, supra note 119. Buyers and sellers of eggs rely on the services of the AMS Poultry Program's Grading Branch “to ensure that their requirements for quality, weight, condition, and other factors are met.” Grading, Certification and Verification, U.S. Dept. of Agric., http://www.ams.usda.gov/AMSv1.0/ams.fetchTemplateData.do? template=TemplateB&navID=EggsGradingCertificationAndVerification&rightNav1=EggsGradingCertificationAndVerification& topNav=& leftNav=GradingCertificationandVerfication&page=PYGBHomePage&resultType=& acct=poultrygrd.
[FN122]. USDA, FSIS, supra note 119. There are three consumer grades for eggs: U.S. Grade AA, A, and B. The grade is determined by the interior quality of the egg and the appearance and condition of the egg shell. Eggs of any quality grade may differ in weight or size. Id.
[FN123]. 7 U.S.C.A. §§ 6501-6515 (West, through P.L. 112-3 (excluding P.L. 111-296, 111-314, 111-320, 111-350, 111-377, 111-383)).
[FN124]. Jessica E. Fliegelman, The Next Generation of Greenwash: Diminishing Consumer Confusion through a National Eco-Labeling Program, 37 Fordham Urb. L.J. 1001, 1025 (2010).
[FN125]. There are three levels of organic certification: “100% Organic” products may only contain organic ingredients, meaning no antibiotics, hormones, genetic engineering, radiation, synthetic pesticides or fertilizers can be used; “Organic”: Contains 95% organic ingredients, with the balance coming from ingredients on the approved National List. These products can also display the USDA organic logo and/or the certifier's logo; and “Made with Organic Ingredients”: Must be made with at least 70% organic ingredients, three of which must be listed on the package, and the balance must be on the National List. These products may display the certifier's logo but not the USDA organic logo. Brian Clark Howard, Organic Labels Come in Different Shapes and Sizes, the daily Green, http://www.thedailygreen.com/going-green/3979.
[FN126]. Oversight of the National Organic Program, U.S. Dept. of Agriculture, Office of Inspector General, 01601-03-Hy 1 (March 2010), www.usda.gov/oig/webdocs/01601-03-HY.pdf.
[FN127]. See 7 U.S.C.A. § 6503 (West, through P.L. 111-3 (excluding 111-296, 111-314, 111-320, 111-350, 111-377, 111-383)); 65 Fed. Reg. 80548, 80551 (Dec. 21, 2000) (National Organic Foods Production Act passed in 1990 and the regulations instituting the act passed in 2000).
[FN128]. Oversight of the National Organic Program, supra note 126.
[FN129]. Id. As of July 2009, there were 98 accredited certifying agents (54 domestic, 44 foreign) that certify approximately 28,000 certified organic operations. Id at 5.
[FN130]. Compassion Over Killing, supra note 11, at 4.
[FN131]. Id. Organic regulations require that products labeled as organic originate from farms or handling operations certified by a USDA-accredited state agency or a USDA-accredited private entity. To receive an organic certification, a farm must submit an “organic production or handling system plan” to the certifying accredited agent for approval. Producers who comply with the standards of the NOP may label their products “USDA Certified Organic.” 7 U.S.C. §§ 6501-6515 (West, through P.L. 112-3 (excluding P.L. 111-296, 111-314, 111-320, 111-350, 111-377, and 111-383)).
[FN132]. 7 C.F.R. § 205.239(a) (West, through Mar.18, 2011).
[FN133]. 7 C.F.R. § 205.239(a)(1) (West, through Mar. 18, 2011).
[FN134]. LS Process Verified Program, U.S. Dept. of Agric., Agric. Marketing Serv., http://www.ams.usda.gov/AMSv1.0/processverified [hereinafter USDA, AMS].
[FN135]. 7 U.S.C.A. § 1622 (West, through P.L. 112-3 (excluding P.L. 111-296, 111-314, 111-320, 111-350, 111-377, and 111-383)). The Act authorizes the Secretary of Agriculture to “To develop and improve standards of quality, condition, quantity, grade, and packaging, and recommend and demonstrate such standards in order to encourage uniformity and consistency in commercial practices.” Id.
[FN136]. Nicole J. Olynk, Christopher A. Wolf & Glynn T. Tonsor, Labeling of Credence Attributes in Livestock Production: Verifying Attributes Which Are More than ‘Meets the Eye‘, 5 J. Food L. & Pol'y 181, 189 (2009).
[FN137]. USDA, AMS supra note 134.
[FN138]. E-mail from Cheryl Leahy, General Counsel, Compassion Over Killing (June 21, 2011, 11:53 EST) (on file with author).
[FN139]. Olynk, supra note 136, at 183. Traditional methods used to verify claims about production methods refer to testing to determine whether the claim is truthful and not misleading to consumers. Id. at n.14. “Furthermore, the ‘test’ would need to be accepted by the governing agency in order to be valid in this context.” Id.
[FN140]. Compassion Over Killing, supra note 11 at 2.
[FN141]. Oversight of the National Organic Program, supra note 126, at 6.
[FN142]. Finding Animal Friendly Food: The Availability of Humanely Labeled Foods in U.S. Grocery Stores, The World Soc'y for the Prot. of Animals, 2 (2009), http://eathumane.org/download/165_finding_animal_friendly_food_2009_ for_web.pdf.
[FN143]. Compassion Over Killing, supra note 11, at 14.
[FN144]. Olynk, supra note 136, at 184.
[FN145]. Id. at 184-85.
[FN146]. Id. at 185.
[FN148]. See Compassion Over Killing, supra note 11 at 2 (noting that egg labels commonly employ misleading claims).
[FN149]. See Olynk, supra note 136, at 185 n.25. (citing David B. Schweikhardt & William P. Browne, Politics by Other Means: The Emergence of a New Politics of Food in the United States, 23 Rev. of Agric. Econ. 302, 303 (2001)).
[FN150]. About Us, United Egg Producers Certified, http:// www.uepcertified.com/about/.
[FN152]. See Animal Husbandry Guidelines for U.S. Egg Laying Flocks, supra note 6, at 18-19 (discussing methods of hen cage production with no mention of outside access.)
[FN153]. Singer, supra note 64, at 111 (quoting Poultry Tribune, Nov., 1986). UEP guidelines specify the minimum space per hen as between 67 square inches and 86 square inches. Animal Husbandry Guidelines for U.S. Egg Laying Flocks, supra note 6, at 18. 67 square inches is not enough space for a hen to flap her wings. Bruce A. Wagman, Sonia S. Weisman & Pamela Frasch, Animal Law: Cases and Materials 468 (4th ed. 2009).
[FN154]. See Animal Husbandry Guidelines for U.S. Egg Laying Flocks, supra note 6, at 26 (only discussing litter requirements for cage free hens).
[FN155]. Id. at 8-9.
[FN156]. Id. at 8 More than 90% of all eggs produced in the United States are produced under these guidelines. UEP Certified, supra note 150. “Infrared beak treatment is an automated process carried out at the hatchery on 1-day old birds. Birds are immobilized using a head restraint and infrared energy is focused on the area of the beak requiring trimming. High intensity (radiant at 50 to 60 watt) heat penetrates down through the beak's corneum layer to the corneum-generating basal tissue and inhibits further germ layer growth. After treatment the corneum layer remains intact until 7 to 10 days post-trimming after which the tip of the beak begins to soften and erode away with use.” Agricultural Research Service, Laying Hen Welfare Fact Sheet, Current Developments in Beak-Trimming, supra note 38.
[FN157]. Agricultural Research Service, Laying Hen Welfare Fact Sheet, Current Developments in Beak-Trimming, supra note 38.
[FN158]. Animal Husbandry Guidelines for U.S. Egg Laying Flocks, supra note 6, at 8-9. “There are several methods used for beak trimming in the United States but the most popular method is hot-blade beak trimming. It employs a heated (650-750°C), ‘guillotine'-type, blade that both cuts and cauterizes the beak tissue when birds are 5 to 10 days old. A second beak trimming may be conducted on birds when they are 5 to 8 weeks old if a trimmed beak grows back.” Agricultural Research Service, Laying Hen Welfare Fact Sheet, Current Developments in Beak-Trimming, supra note 38.
[FN159]. Animal Husbandry Guidelines for U.S. Egg Laying Flocks, supra note 6, at 8.
[FN160]. See id. at 19 (noting that lights should be provided to allow for inspection of birds and that lighting should be 0.5 to 1 foot candle for birds during feeding levels during production).
[FN161]. Id. at 11.
[FN163]. Id. at 13.
[FN164]. Animal Husbandry Guidelines for U.S. Egg Laying Flocks, supra note 6, at 11.
[FN165]. Id. at 6.
[FN166]. Wagman et al., supra note 153, at 468.
[FN167]. Animal Care Certified” -A Case of Animal Abuse and Consumer Fraud, Compassion Over Killing, http://www.cok.net/camp/acc/. In 2004, the decision was affirmed on appeal. Id
[FN168]. Wagman et al., supra note 153, at 468.
[FN169]. Wagman, et al., supra note 153, at 468.
[FN170]. USDA, AMS supra note 134.
[FN171]. Telephone Interview with Cheryl Leahy, General Counsel, Compassion Over Killing (Feb. 21, 2011).
[FN172]. Company Overview, Sparboe Farms, http://www.sparboe.com/animal-care.html; Contact Us, Sparboe Farms, http://www.sparboe.com/contact-us.html.
[FN173]. Compare Animal Husbandry Guidelines for U.S. Egg Laying Flocks, supra note 6, with Company Overview, supra note 173 (both requiring fresh water, nutritious food, and proper space).
[FN174]. See Animal Husbandry Guidelines for U.S. Egg Laying Flocks, supra note 6, at 1.
[FN175]. United Poultry Concerns, supra note 51, at 4.
[FN176]. Yacoubou, supra, note 121, at 10.
[FN177]. U.S. Dept. of Agric., http://www.usda.gov/wps/portal/usda/usdahome (last visited June 1, 2011).
[FN178]. Jennifer Wolcott, Cage-free Eggs: Not All They're Cracked Up to Be?, Christian Science Monitor, Oct. 27, 2004, http:// www.csmonitor.com/2004/1027/p15s01-lifo.html.
[FN179]. Forced molting is a process which extends the productive life of egg laying hen flocks. American Veterinary Medical Association, Comment Re: Docket No. AMS-TM-09-0060; TM-05-14--National Organic Standards Board, Livestock Committee, Animal Welfare Recommendations, October 19, 2009 (5) Section (c)(1). Forced molting can be induced by feed withdrawal with feed being removed anywhere from five to fourteen days. D. D. Bell, Historical and Current Molting Practices in the U.S. Table Egg Industry, Poultry Science 82:965-970 (2003). When forced molting by feed withdrawal came under intense scrutiny from animal welfare advocates, the industry sought non-feed removal methods. Such procedures include depleting nutrient levels by removing salt, sodium, or calcium, low-nutrient diets or by adding substances to the feed that inhibit egg production. Other methods include introducing high levels of certain minerals (e.g. zinc, aluminum, and potassium iodide) to the diet to inhibit egg production, and reduction of photoperiods (reduce light). Id. As of this writing, the Organic standard still allows forced molting by feed withdrawal.
[FN180]. Egg Industry Investigations, Compassion Over Killing, http:// www.cok.net/camp/inv/egg.php.
[FN181]. Spent hens are killed at approximately two years of age. Ryan A. Meunier and Mickey A. Latour, Commercial Egg Production and Processing, http:// ag.ansc.purdue.edu/poultry/publication/commegg/.
[FN182]. Video Shows Chicks Ground Up Alive at Egg Hatchery, The Gazette, Sept. 1, 2009, http://www.gazette.com/articles/iowa-61206-alive-moines.html #ixzz1D0f9tjsE.
[FN183]. See infra pp. 23-24 (discussing using the terms “free range” or “free roaming” to refer to eggs).
[FN184]. Meat & Poultry Labeling Terms, U.S. Dept. of Agric. Food Safety Inspection Service,, http://www.fsis.usda.gov/factsheets/Meat_&_Poultry_ Labeling_Terms/index.asp.
[FN185]. Compassion Over Killing, supra note 11, at 4.
[FN187]. See id. at 10-14 (discussing numerous misleading labels on egg cartons).
[FN188]. See infra discussion pp. 72- 74 (discussing the misleading labels on eggs sold by Wegmans, Wild Harvest, and Rose Acre Farms).
[FN189]. Wegmans Food You Feel Good About Eggs, supra, note 1.
[FN190]. Store Locator, Wegmans, http:// www.wegmans.com/webapp/wcs/stores/servlet/CategoryDisplay? storeId=10052&identifier=CATEGORY_517 (last visited June 1, 2011).
[FN191]. Wegmans Egg Farm, The Vegetarian Education Group at The U. of Rochester, http://urveg.org/campaigns/wegmans/ (last visited June 1, 2011).
[FN193]. Mary Ellen Burris, Safe Eggs At Wegmans, Wegmans, http:// www.wegmans.com/webapp/wcs/stores/servlet/ProductDisplay?langId=-1&storeId=10052&catalogId=10002&productId=700878 (last visited June 1, 2011).
[FN194]. Wegmans Food You Feel Good About Eggs, supra, note 1.
[FN195]. Wegmans Brand Egg carton image (emphasis added).
[FN196]. Finding Animal Friendly Food: The Availability of Humanely Labeled Foods in U.S. Grocery Stores, supra note 142, at 2.
[FN198]. Gene Baur, Farm Sanctuary: Changing Hearts and Minds about Animals and Food 195 (2008).
[FN200]. Letter from Wayne Pacelle, President & CEO, The Humane Society of the United States, to Colleen Wegman, President, Wegman Food Markets, Inc., Wegmans Cruelty: An Unofficial Blog, (Jul. 21, 2005), http:// wegmanscruelty.blogspot.com/2005/09/humane-society-of-united-states-hsus.html.
[FN201]. Julie Sherwood, Wegmans May Sell Egg Farm, Wegmans Cruelty: An Unofficial Blog (Jan. 9, 2011, 01:00 PM), http:// wegmanscruelty.blogspot.com/2007/01/wegmans-may-sell-egg-farm-by-julie.html
[FN202]. Lindsey Klingele, Wild Harvest Brand Debuts, The Food Channel (Apr. 14, 2008), http://www.foodchannel.com/articles/article/wild-harvest-brand-debuts/.
[FN203]. View Stores by State, Shaws, http:// www.shaws.com/stores/searchstores; Klingele, supra note 205. The Wild Harvest Natural brand is not exclusive to Shaw's. The carton that I obtained while researching this article was purchased at an Acme supermarket in suburban Philadelphia.
[FN204]. Finding Animal Friendly Food: The Availability of Humanely Labeled Foods in U.S. Grocery Stores, supra note 142, at 4. (In a 2009 national survey that ranked food retailers according to the number of “humanely labeled” products they offered, Shaw's Supermarkets, Inc. tied for second place with Publix Super Markets).
[FN205]. Id. at 2.
[FN206]. See supra Section IV.C (noting that hens that lay “cage free” eggs are still packed side by side in sheds and still subject to debeaking).
[FN207]. See supra Section IV.B.1 (noting that UEP guidelines do not specify how the label should be displayed).
[FN208]. Wild Harvest Natural Grade A Cage Free Large Brown Eggs carton image.
[FN210]. Rose Acre Farms, http://www.roseacre.com (last visited June 1, 2011).
[FN211]. D. Mayen & Kevin T. McNamara, Purdue Agricultural Economics Report: Indiana's Egg Industry, Purdue Univ. Agric. Econ. (Jan. 2006), http:// www.agecon.purdue.edu/extension/pubs/paer/2005/december/mcnamara.asp.
[FN212]. Compassion Over Killing, supra note 11, at 12.
[FN213]. See supra Section IV.C (discussing misleading claims).
[FN214]. Compassion Over Killing, supra note 11, at 15-16.
[FN215]. Id. at 16.
[FN217]. See supra IV.B.1 (noting the UEP certified egg producing husbandry practices).
[FN218]. Appalling Cruelties at Nation's Top Egg Producers, The Humane Soc'y of the U.S. (April 7, 2010), http:// www.humanesociety.org/news/news/2010/04/investigation_rose_acre_rembrandt_ 040710.html.
[FN219]. A pullet is a young hen. Pullet, Oxford English Dictionary Online (Nov. 2010), http://www.oed.com/view/Entry/154334?redirectedFrom=pullet# (last visited Mar. 20, 2011).
[FN220]. Appalling Cruelties at Nation's Top Egg Producers, supra note 221.
[FN221]. A prolapsed uterus is protruding from a bird's body. Prolapse of the Oviduct, The Merck Veterinary Manual (2008), http:// www.merckvetmanual.com/mvm/index.jsp?cfile=htm/bc/205811.htm&word=prolapse% 2coviduct.
[FN222]. Appalling Cruelties at Nation's Top Egg Producers, supra note 221.
[FN223]. Interview with Cheryl Leahy, General Counsel, Compassion Over Killing (Feb. 21, 2011).
[FN224]. Draft Guidance, Outdoor Access for Organic Poultry, United States Department of Agriculture Agricultural Marketing Service, National Organic Program (Sep. 1, 2010), www.ams.usda.gov/AMSv1.0/getfile? dDocName=STELPRDC5086968.
[FN226]. See Pollan, supra note 29, at 172 (noting that outdoor space available is very limited and the chickens are trained to stay inside and not use the little outdoor access they are given).
[FN227]. U.S. Dept. of Agric., http://www.usda.gov/wps/portal/usda/usdahome (last visited June 1, 2011).
[FN230]. Gabriel Nelson, USDA's Organic Enforcers let Offenders Slide, Audit Says, N.Y. Times, Mar. 19, 2010, http:// www.nytimes.com/gwire/2010/03/19/19greenwire-usdas-organic-enforcers-let-offenders-slide-au-12233.html (citing Oversight of the National Organic Program, supra note 126, at 2 (describing the failure to of NOP officials to take enforcement actions from 2006-2008 against operations not in compliance).
[FN232]. The Oversight Report does not specifically address egg producers. See Oversight of the National Organic Program, supra note 126 (referring to the national organic program as a whole and not specifically to egg producers).
[FN233]. Yacoubou, supra note 121, at 9-10.
[FN234]. Finding Animal Friendly Food: The Availability of Humanely Labeled Foods in U.S. Grocery Stores supra note 142, at 2.
[FN235]. Farm Sanctuary Report, The Truth Behind the Labels: Farm Animal Welfare Standards and Labeling Practices, 11 (April 2009), www.farmsanctuary.org/.../Farm%20Animal%C20Welfare%C20Standards%20Report.pdf
[FN237]. Singer & Mason, supra note 4 at 105.
[FN238]. The Humane Touch, http://thehumanetouch.org (last visited June 1, 2011).
[FN239]. Overview, Certified Humane, http:// www.certifiedhumane.org/index.php?page=overview.
[FN240]. Animal Welfare Approved, http://www.animalwelfareapproved.org (last visited June 1, 2011).
[FN241]. The Truth Behind the Labels: Farm Animal Welfare Standards and Labeling Practices, supra note 238, at 68.
[FN242]. Singer & Mason, supra note 4, at 105-06.
[FN243]. The Truth Behind the Labels: Farm Animal Welfare Standards and Labeling Practices, supra note 238, at 68.
[FN244]. Finding Animal Friendly Food: The Availability of Humanely Labeled Foods in U.S. Grocery Stores, supra note 142, at 2.
[FN245]. The Humane Touch, supra note 241 (follow “Certified Producers” hyperlink; then follow “How to Become a Certified Producer” hyperlink).
[FN246]. Farm Animal Welfare, American Humane Association, http:// www.americanhumane.org/animals/programs/farm-animal-welfare.html.
[FN247]. The Humane Touch, supra note 241 (follow “Certified Producers” hyperlink; then follow “How to Become a Certified Producer” hyperlink).
[FN249]. Yacoubou, supra note 121, at 15.
[FN252]. The Truth Behind the Labels: Farm Animal Welfare Standards and Labeling Practices, supra note 238.
[FN254]. Majority of Cage-Free Eggs Now Come from American Humane Certified Producers, News Blaze, Jan. 15, 2009, http:// newsblaze.com/story/2009011510531100003.pnw/topstory.html.
[FN255]. The Humane Touch, supra note 241 (follow “Meet Our Producers & Their Brands” hyperlink).
[FN256]. Certified Humane, supra note 242 (follow “Farm/Ranch/Business” hyperlink; then follow “Fees” hyperlink).
[FN258]. Singer & Mason, supra note 4, at 105.
[FN259]. Humane Farm Animal Care, Program/Policy Manual 8-14 (Jan. 1, 2011), http://www.certifiedhumane.org/uploads/pdf/Pol11.1J.pdf.
[FN260]. Certified Humane, supra note 242 (follow “Overview” hyperlink).
[FN261]. Yacoubou, supra note 121, at 15.
[FN264]. Singer & Mason, supra note 4, at 105-06.
[FN265]. The Truth Behind the Labels: Farm Animal Welfare Standards and Labeling Practices, supra note 238, at 68.
[FN266]. Where to Buy, Certified Humane, http:// www.certifiedhumane.org/index.php?page=where-to-buy.
[FN267]. Animal Welfare Approved, supra note 243.
[FN269]. Yacoubou, supra note 121, at 14.
[FN270]. Farmer Application Form, Animal Welfare Approved, http:// www.animalwelfareapproved.org/farmers/apply/.
[FN272]. Yacoubou, supra note 121, at 15.
[FN275]. The Truth Behind the Labels: Farm Animal Welfare Standards and Labeling Practices, supra note 238, at 68.
[FN277]. Animal Welfare Approved, supra note 243 (follow “Farmers, Products, and Restaurants” hyperlink). “Community supported agriculture” refers to programs in which customers ‘subscribe‘ to a farm, paying a certain amount at the beginning of the growing season ‘in exchange for a weekly box of produce for the summer‘ Pollan, supra note 29, at 245.
[FN278]. Compassion Over Killing, http://www.cok.net (last visited June 1, 2011).
[FN279]. Animal Law Project, University of Pennsylvania Law School, http:// www.law.upenn.edu/probonoprojects/animal-law.
[FN280]. Taking Action: Truth in Labeling--“Eggs from Caged Hens‘ Compassion Over Killing, http://www.cok.net/camp/egg_labeling/#action.
[FN281]. 21 C.F.R. § 101 (2011).
[FN282]. 21 C.F.R. § 115; 21 C.F.R. § 160.105 (discussing salmonella).
[FN283]. Compassion Over Killing, supra note 11, at 1-6.
[FN284]. Id. at 6.
[FN286]. Id. The Petition also requests that the FDA define “cage” as “a structure for confining birds, enclosed on at least one side by a grating of wires or bars that lets in air and light, in which hens do not have the ability to fully spread their wings without touching the sides of that enclosure or other birds.” Id.
[FN287]. Oversight of Egg Safety: Hearing Before the Subcomm. on Oversight of Gov't Mgmt., Restructuring and the D.C Senate Comm. on Gov't Affairs (1999) (statement of Morris E. Potter, Director, Food and Drug Administration).
[FN288]. Wes Jamison, Integration of Competing Concepts Surrounding the Ethical Use of Food Animals, in Palm Beach Atlantic University, CAST Food - Animal Agriculture Symposium 3 (June 8, 2010) (transcript available at http:// www.nal.usda.gov/awic/pubs/CASTSymposium10Jun08.pdf).
[FN289]. HumaneCalifornia, Uncaged - YES on Prop 2 (Free Range Studios 2008), Youtube (Sep. 24, 2008), http://www.youtube.com/watch?v=oqPJsfjjyZU.
[FN291]. Singer, supra note 72, at 30.
[FN292]. See Wolcott, supra note 179 (noting that “cage-free” does not mean much in terms of quality of life for hens and that “cage-free” eggs often come from hens packed side by side in massive sheds). See also supra discussion Part III.B.
[FN293]. Supra discussion Part IV.D.
[FN295]. Finding Animal Friendly Food: The Availability of Humanely Labeled Foods in U.S. Grocery Stores, supra note 142, at 3-4. The two stores tied for second were Shaw's Supermarkets, Inc. (Supervalu, Inc.) and Publix Supermarkets. Id. Wal-Mart Stores, the world's largest food retailer, scored near the bottom of the supermarkets evaluated (21st of 25 supermarkets). Id. at 3.
[FN296]. Further investigation revealed only one other area store carried third-party certified eggs. E-mail from Essene Market, Philadelphia (Jan. 11, 2011, 14:02 EST) (on file with author). However, other stores I e-mailed told me that even though the eggs they carried were not third-party certified, they in some cases knew the egg producers personally, had visited the farms, and indicated they felt comfortable with the farm's practices and handling. E-mail from Kristin Mulvenna, Fair Food Philly, Philadelphia, Pa. (Jan 11, 2011, 16:49 EST) (on file with author); E-mail from Alex Jones, Greensgrow, Philadelphia, Pa. (Jan. 7, 2011, 09:55 EST) (on file with author).; and E-mail from Butch Dougherty, Iovine Brothers, Philadelphia (Jan. 13, 2011, 13:45 EST) (on file with author).
[FN297]. Packwood Freeman, supra note 58, at 35 (quoting Derrida & Roudinesco (2004)).
[FN298]. See generally John Berger, Why Look at Animals?, in about looking (1977) (suggesting that loss of everyday contact with animals has left people confused about terms of human-animal relationship).
[FN299]. Pollan, supra note 29, at 333.
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