Legal Protections of the Domestic Chicken in the United States and Europe
- Veronica Hirsch
- Animal Legal and Historical Center
- Publish Date: 2003
- Place of Publication: Michigan State University College of Law
The bird known as the chicken (Gallus domesticus) is a domesticated version of the Indian and Southeast Asian Red Jungle Fowl (Gallus gallus), still found in the wild today. Although some chickens are kept as backyard pets or used as research animals, the most significant use of chickens is for meat and egg production. Almost 9 billion chickens are used in agriculture every year, but the use of animals for food is the most lightly regulated area of animal use in the United States.
All the major federal animal protection laws exclude chickens and most state laws specifically exclude farm animals. In comparison to the slight protection offered to agricultural animals and chickens in the United States, farm animals in Europe are afforded significant legal protections based in part on the principles of the “Five Freedoms:” freedom from hunger and thirst, freedom from pain, injury and discomfort, freedom from discomfort, and freedom to express natural behaviors.
II. Common Uses of the Domestic Chicken
A. Pets and Poultry Shows
Many people raise chickens for fun, to show, to educate, or to get farm fresh eggs from their own backyard flock. There are over 400 varieties of chickens, including small breeds such as bantam chickens and large exotic breeds that have long tails, or tall crests on their heads. Some breeds even lay eggs in shades of blue, green and pink. Over 1000 different poultry shows are held every year in the United States and Canada which testify to the popularity of this hobby. For more information on poultry showing see the American Poultry Association website at http://www.ampltya.com. There is some debate, however, as to how many birds are truly used for showing in poultry shows and how many are actually used for cockfighting. For example, the California Agriculture Department recently spent $11.5 million to buy 144,000 birds from private owners and destroy them in an effort to eradicate the deadly avian Newcastle Disease. Agriculture officials believed that most of these birds, including thousands of roosters and brood cocks, were used for fighting.
Cockfighting is an ancient sport thought to have originated 3000 years ago in Southeast Asia when semi-wild jungle birds were thrown together to fight to the death. Wagering on which bird would win is the major appeal of the sport as spectators and owners bet large sums of money on their favorite birds. Cockfighting is still a popular and mainstream sport in Southeast Asia as well as Spain, Latin America, Mexico, Guam, Puerto Rico and the Philippines. Worldwide, cockfighting is a billion dollar a year industry.
Roosters are highly territorial and will fight ferociously to defend their territory and hens. Roosters have sharp claws on their feet and fight by slashing at each other with their feet and especially with the hooked spur that grows on the back of each leg. Many times the rooster has the natural spur removed and replaced with a sharp knife or razor blade (a “gaff”) to enhance the lethality of the sport, although not all cockfighters support this practice. The fights are held in a circular pit so that neither of the birds can escape from the fight. Common injuries include punctured lungs, broken bones, and blindness. For a detailed description of cockfighting in Puerto Rico from a pro-cockfighting position go to: http://www.geocities.com/heartland/ranch/6055/ugc/art_puerto-rico.html.
Cockfighting has been a sport in the United States since at least the early 1800’s and was a favorite sport of the colonists. In1860, only three states had outlawed the sport, but today, 48 states and the District of Columbia have outlawed cockfighting, with cockfighting legal in only Louisiana and some parts of New Mexico. Not only is causing or using roosters for fighting illegal, but in some states many of the other activities associated with cockfighting such as keeping a cockpit, attending, promoting, or sponsoring a cockfight, or keeping a fighting bird, are also outlawed.
In most states cockfighting is a misdemeanor and average penalties are small, with fines ranging from $20 to $100 and jail-times averaging 10 to 100 days. In many states it is only cockfighting itself that is illegal, while owning a fighting bird or attending a cockfight is not, suggesting a sort of regulatory ambivalence toward the sport. In California, for example, cockfighting is illegal, but owning game cocks is not. And in Virginia, cockfighting is illegal only if it can be proven that the cockfighters received money or prizes. To read the Virginia statute click here.
In some states prosecutors have been able to fight cockfighting by filing charges under a state’s animal cruelty statutes rather than under the state cockfighting laws. For example, cockfighting is only a misdemeanor in California but prosecutors were able to secure a felony conviction under California’s animal cruelty statutes in the case of People v. Baniqued.See 101 Cal.Rptr.2d 835 (Cal.App.,2000). In Baniqued the cockfighters claimed that the animal cruelty statutes did not apply to roosters, but the court disagreed, finding that the statutes applied to “every dumb creature.”
In seventeen other states, cockfighting is a felony offense with a typical maximum penalty of five years in prison and a $5000 fine. Michigan has the toughest felony cockfighting laws in the country. Cockfighting, watching a cockfight, or owning a fighting bird in Michigan are all felonies punishable by up to four year in prison, a $50,000 fine and 1000 hours of community service. To read the Michigan statute click here, and to read more about anti-cruelty laws in Michigan, click here.
The federal Animal Welfare Act prohibits cockfighting, and in May of 2003 an amendment was added that makes it illegal "to knowingly sell, buy, transport, deliver, or receive a bird in interstate commerce for purposes of participation in a fighting venture, regardless of the law in the destination state." Many cockfighters, however, claim that they are raising the animals as “show birds” and deny that they are raising them for fighting.
Regulators believe that a tremendous underground cockfighting industry exists, even in states where the sport is technically illegal. It is estimated that over three million fighting cocks are raised every year in California alone. Cockfighting persists despite the laws against it because it is profitable sport, the penalties are usually small, and enforcement is weak. For more information on cockfighting, see the Humane Society of the United States at http://www.hsus.org/ace/18710.
C. Laboratory/Research Animal
Chickens and chicken eggs are often used as research and laboratory animals although the exact numbers used are uncertain. Embryologists use chicken eggs to study the effect of various drugs, hormones, and other chemicals on developing embryos and the chickens themselves have been used by immunologists to produce antibodies for research purposes since at least 1980. The chicken’s immune response is stronger than either a rodent’s or a human’s, and an immunized hen will secrete large quantities of antibodies into the eggs. These antibody-enriched eggs will be collected, and purified, and the antibodies will be used in additional experiments.
D. Food Production
Most of the almost nine billion chickens in the United States today are used for either egg production or meat, and most of these chickens are raised using intensive husbandry practices commonly known as “factory farming.” Prior to WWII, most chickens were raised on small family farms, but today, technology, antibiotics, and mechanization lets factory farmers raise more birds in less space, and with lower costs. Intensive farming uses less land and protects the animals from the extremes of climate. It also allows farmers to diagnose and treat diseases and other problems quickly, and control the length and intensity of daylight to increase egg production and/or encourage faster growth. Laying hens live a season-free life of unending 16 hour days, while broiler chickens live in almost constant daylight, getting just one hour of darkness every 23 hours.
The per capita consumption of chicken has increased from 23.4 pounds per year in 1960 to over 70 pounds today. It is thought that chickens currently supply up to 25% of the world’s meat supply, and in the United States, over 20 million chickens are slaughtered every 24-hours. Today 36 percent of all meat consumed in the United States is poultry, and chicken remains the least expensive meat. In 1990 the average price of poultry was 89.9 cents a pound, compared to $2.13 per pound for pork, and $2.81 for beef. The average price of a dozen large eggs in the year 2000 (67 cents) was less than the average price paid in 1984 (84 cents).
The life led by these factory farmed birds depends on whether they will be used for eggs or meat. Laying chickens are bred for intense egg production, and therefore any male chicks born from egg-laying hens are killed, often by piling them into garbage bags and suffocating them, or through carbon-dioxide induced asphyxiation, or by decapitation. Occasionally, they may ground up alive as meal for other animals. There are no legal restrictions on the disposal of chicks.
Egg-laying chickens are often referred to as cage hens or battery hens because they live their life in a “battery cage.” Typically, each battery cage is a 12-inch by 18-inch wire cage that may hold up to six birds. In a six-bird cage, each bird would have approximately 36 in2 of room. The cages are stacked on top of each other in a layer house that may hold over 80,000 birds. The hens begin laying at 16-22 weeks old, and may produce up to 300 eggs by 70 weeks. The crowded conditions mean that the hens cannot engage in most of their normal behaviors. They cannot walk, fly, perch, preen, nest, peck, dust-bathe, or scratch for food. Hens may not even be able to stand up and their feet may actually grow into the wire floor of their cages.
In these conditions the hens’ normal behavior of establishing a pecking order is thwarted and hens may peck at and injure each other or even become cannibalistic. To prevent the hens from injuring one another, the chicks are de-beaked immediately after hatching. De-beaking is a process where a very hot blade is used to trim off and cauterize up to 3 mm of the top beak and 2.5 mm of the lower beak. Re-trimming may be necessary as the bird grows.
To increase egg production, most farmers use a technique known as forced molting where in the hens are not given food for up to two weeks and are not given water for up to three days. This process is stressful to the hens and causes them to lose up to 25% of their body weight and shed their feathers (“molting.”) When food and water are restored, however, egg production increases dramatically, with bigger eggs in greater numbers. A laying hen will lay about 300 eggs during her economic lifespan of about one year, after which she will usually be slaughtered. (The natural lifespan of a chicken is 5-7 years.)
Chickens used for meat (broilers) are not raised in battery cages, but are usually raised in deep litter on the floor of a large warehouse that is carpeted with as many as 40,000 birds. Broilers are also de-beaked, and may have their toes removed to prevent injuries from fighting that may occur because of the cramped living conditions. The birds have been bred to achieve a market weight (about four pounds) in just six weeks. Thirty years ago, it took twelve weeks for the birds to reach market weight. Upon reaching market weight, the broilers are packed into crates and shipped to the slaughterhouse. There are no federal regulations regarding the transportation or slaughtering of chickens, although there are a small minority of states that have enacted some protections in this area regarding chickens.
Because broilers are bred to grow fast, they gain weight faster than their bones, heart and lungs can support. For comparison, at six weeks of age, the average female broiler chicken is 4 times bigger than the average laying hen. Broiler’s leg and breast muscles are especially large, and this causes the broiler chicken a multiple of health problems, including crippling leg disorders, ascites (a disease of the lungs and heart) and sudden death syndrome (akin to a heart attack). The birds are very inactive (perhaps due to lameness) and show a reduced capacity for antibody production. These health problems increase as the bird ages, and the mortality rate for broilers is up to 5% over the production cycle, or seven times that of egg-laying birds. To learn more about the health problems of broiler chickens, click here to read the complaint filed by Compassion in World Farming, or visit Comapssion in World Farming at http://www.ciwf.co.uk.
The super fast growth of broiler chickens has created an additional problem in the breeding of broilers. A full-grown, sexually mature hen is needed to produce the eggs that will grow into broiler chickens, but the broiler hen’s fast rate of growth may shorten her life span. In order to keep the broiler hens from growing too large, too fast, these hens are fed only 25% of what they would eat if allowed to eat at liberty. These birds weigh only a quarter of what they would weigh if they were to being grown for slaughter, and studies have shown them to be chronically hungry, frustrated and stressed. This chronic underfeeding is necessary in order to “dwarf” the breeding stock and prevent obesity, lameness and heart failure, and keep the hens alive long enough to lay eggs.
Intensive systems of factory farming can also be the source of environmental pollution. For example, Arkansas, the nation’s top broiler producing state, is home to almost 1 billion birds, which produce over 5100 tons of manure daily. This manure is known to pollute streams and groundwater sources as well as harming fish and wildlife. Additionally, the high mortality rates tolerated in factory farming can produce up to 50 million dead birds (not slaughtered for food) per year. These birds may be disposed of by burning, burying, composting, or cooked to use in swine food. For more information on the problems of poultry industry pollution in Arkansas, please read In Arkansas Which Comes First, the Chicken or the Environment, by John Holerman, 6 Tulane Environmental Law Journal 21, 1992.
III. Legal Protection of the Chicken in the United States
A. Federal Law
Over 90% of the 10 billion animals used in animal agriculture in the United States each year are chickens. Over 8.7 billion broiler chickens are killed each year for food, and over 337 million battery-hens are used for laying eggs. Despite these numbers, the use of animals in agriculture is the most lightly regulated area of animal use in the Untied States, and of the regulations that do exist, chickens and other poultry are typically excluded.
From an animal welfare perspective, there are no federal regulations regarding the breeding, rearing, sale, transportation, or slaughter of chickens. For example, in 2003 in San Diego County, California, an egg producer slaughtered 40,000 spent hens by throwing them alive into a wood chipper, and in Florida the egg-producing Cypress Foods abandoned more than 200,000 laying hens after declaring bankruptcy in 2002. Over 2000 of the hens starved to death and the rest were euthanized by the State. Neither producer’s actions violated any federal or state law, and neither was charged with animal-cruelty under state anti-cruelty laws.
i. The Animal Welfare Act,7 U.S.C. SEC. 2131-2159
The Animal Welfare Act was the first and is still the only major federal legislation that sets standards for the care and handling of certain animal species used by zoos, circuses, research facilities and animal dealers. The AWA does not apply to retail pet stores, livestock shows, rodeos, or dog and cat shows. The AWA was originally enacted by Congress in 1966, and has been amended several times since then. It was enacted in order to improve the living conditions of the animals in these facilities, and to ensure that they were treated humanely. It is enforced by inspectors from the USDA who can issue citations for violations of the AWA, and these violations are punishable by a fines paid to the federal government. For more information on the Animal Welfare Act, click here.
However, rats, mice and birds are not protected by the AWA, and neither are farm animals, which means that chickens and other poultry are not protected by this law whether they are used for eggs and meat, as research animals, or exhibited in zoos and carnivals.
ii. The Humane Slaughter Act, 7 U.S.C. Secs. 1901-1906
The Humane Slaughter Act (“HSA”) requires that all livestock be slaughtered in a humane method in order to prevent needless suffering, and to prevent the dragging of conscious, non-ambulatory animals. The HSA requires that animals be unconscious and insensitive to pain before being shackled, hoisted and killed. This is usually achieved by rendering the animal unconscious either by electrical stunning, or some kind of blow to the head. However, the HSA only applies to slaughterhouses under the federal meat inspection system and does not apply to chickens and poultry. Currently only one state, California, requires the humane slaughter of broiler chickens.
iii. The Twenty-Eight Hour Law, 49 U.S.C Section 80502
The Twenty-Eight Hour Law provides that animals cannot be transported across state lines for more than 28 hours without being unloaded for at least five hours of rest, and watering and feeding, unless they are being transported in a vehicle which allows them enough room to rest and to have food and water provided to them. The 28-Hour-Law was first passed in 1873 in response to inhumane shipping practices that often resulted in as many as 40% of the animals dieing before arriving at their destination. Cows, pigs and sheep were commonly shipped together in the same railroad car, often causing crushing and trampling of the smaller animals, and the animals typically went three or four days without food or water. Many of the surviving animals would be injured, or diseased, and many lost up to 25% of their body weight.
The original law was repealed and re-enacted in amended form in 1994 to cover all methods of livestock shipping (except air or water), as well as stipulating humane methods of loading and unloading the animals, and requiring clean, well-drained pens to protect the animals from the weather. Animals may be confined for 36 hours if the owner (or person having custody) of the animals so requests. However, the law does not cover transportation within a state, and the maximum penalty for violation of the law is only $500. There has been no reported litigation under this statute in over fifty years.
As with the Humane Slaughter Act, and the Animal Welfare Act, the Twenty-eight Hour Law does not apply to chickens, poultry and other birds, although a few states have enacted legislation that does protect these animals to a small extent.
B. State Legislation
i. State Anti-cruelty Laws
Every state in the United States has an anti-cruelty law, and these laws are often the only protection from inhumane treatment and unnecessary suffering available to farm animals and poultry. However, thirty states specifically exclude farm animals (or fowl), and/or make exceptions for “common,” “normal,” or “customary” animal husbandry practices and eighteen states also exclude animal slaughtered for food. Although a practice like de-beaking or forced molting may appear cruel, it is not a violation of the anti-cruelty act if it is the common industry practice. Importantly, new practices, even if objectively cruel, will not be considered illegal if the practice becomes common in the industry. In contrast, some animal welfare laws in Europe do not make broad exceptions for cruel practices simply because they are the agricultural norm.
While it would seem that chickens are at least protected by the anti-cruelty statutes in a few states, prosecuting animal cruelty cases under these statutes is often difficult. Many states require that cruelty to animals require a “willful” or “malicious” state of mind, which can be difficult to prove. For example, people who hoard animals may have dozens, even hundreds of animals (typically dogs and cats) confined in their house, in a barn, or even in one case, a school bus. The hoarder honestly believes that he or she is helping the animals by keeping them from being put to sleep. In a state that requires malicious intent, the hoarder can not be found to violate animal cruelty statutes.
Another weakness with state animal cruelty laws is that while they may require that animals be provided with food, water, and shelter, they often make no additional requirements regarding air, light, space, freedom of movement, exercise, or clean living conditions. Furthermore, many states allow charges of animal cruelty to be defended by proving that the actions were done to protect humans or to protect other animals owned by the defendant.
Additionally, because violating these anticruelty laws is a criminal offense (usually a misdemeanor) it is up to prosecutors to press charges in animal cruelty cases and many times animal cruelty cases are a low priority when compared to crimes involving human victims. Penalties for animal cruelty usually involve only small fines (the nationwide average is $500) and short jail times. Prosecutions for animal cruelty are usually reserved only for the most grievous offenses involving multiple animals. When farm animals are involved, only cases of extreme neglect appear to warrant prosecution. See e.g. Sirmans v. State,534 S.E.2d 862 (Ga.App.2000) and People v. Sanchez, 114 Cal.Rptr.2d 437(Cal.App.2001).
Another difficulty in the enforcement of state anticruelty laws is that because farms, laying houses, and broiler warehouses are private property, it is difficult for the general public and especially law enforcement officials, to know what is going on “on the farm.” Unless an “insider” comes forward with evidence of animal abuse, any violations will often go unreported and anticruelty laws remain un-enforced. For more information and a summary of state anti-cruelty laws see Pamela D. Frasch, et. al., State Animal Cruelty Statutes: An Overview, 5 ANIMAL LAW 69, 1999.
ii. State Transportation Laws
The federal Twenty-Eight Hour Law only applies to the interstate transport of animals, but many states, either in their anti-cruelty laws, or in their own transportation laws require that animals be transported in a humane manner. However, some states exempt farm animals or animals raised for food protection from these laws, or else they explicitly exclude poultry. For example, Oregon’s anticruelty statute explicitly excludes the transportation of livestock or commercially grown poultry (except in case of gross negligence.) Only four states, Rhode Island, Wisconsin, Pennsylvania and Connecticut specifically require the humane transportation of poultry, but the states statutes are often vaguely worded and the fines for violating these statutes are usually negligible. For example, Connecticut’s law requires just requiring simply “reasonable care” to prevent “unnecessary suffering,” and an individual violating the statute “shall be fined not more than one hundred dollars or imprisoned not more than thirty days or both.” See Conn. Gen. Stat. Sections 53-249 (2003), R.I. Gen. Laws Section 4-1-7 (2002) and Wis. Stat.Section134.52 (2002).
iii. State Humane Slaughter Acts
Twenty-seven states have enacted their own humane slaughter acts, but only California includes chickens and other poultry in its act. The California Humane Slaughter Act, and its implementing regulations specify that chickens must be “rendered insensible to pain” before killing and describes specific methods of humane killing including gassing with carbon dioxide, electrical stunning, electrocution, cervical dislocation, and decapitation. Following the federal HSA, the act also allows and exception for ritualistic slaughter that is characteristic of the Jewish and Islamic traditions. However, the California HAS does apply to “spent” hens, egg-laying hens who are at the end of their economic lifespan.
The Act was challenged in 1996 in Farm Sanctuary v. Dept. of Food and Agriculture, 74 Cal.Rptr.2d 75(Cal.App.,1998). In this case, Farm Sanctuary, an animal protection organization, filed suit against the California Department of Food and Agriculture, alleging that the California Humane Slaughter Act (CHAS), by allowing an exemption for “other methods of ritualistic slaughter,” indirectly allowed inhumane methods of killing chickens.
The court found, however, that the statute did not allow the inhumane slaughter of chickens, even in cases of ritualistic slaughter. Reasoning that since the purpose of the CHAS was to ensure that chickens were slaughtered humanely, the Dept. of Food and Agriculture could not approve any additional methods of slaughter that were not humane. They could, however, approve “other methods” if those other methods were humane. One problem, though, with the CHAS is that neither it nor its implementing regulations offer a general definition of “humane.”
IV. Legal Protection of Animals in Europe and New ZealandIn comparison to the almost non-existent protection offered to agricultural animals in the United States, many farm animals in Europe and the United Kingdom are afforded significant legal protections. Unlike in the United States, customary agricultural practices can be considered cruel and inhumane, even if the practice has been previously considered normal and common. Addressing chickens specifically, many of the customary poultry raising methods practiced in the United States are considered cruel in Europe and are, or will soon become, illegal.
Many European animal welfare laws are based in part on the principles of the “Five Freedoms” first defined in 1979 by the UK Agriculture Ministry’s advisory body, the Farm Animal Welfare Council. These five freedoms require that animals have:
proper and sufficient food and water,
an opportunity to display normal patterns of behavior,
minimal pain and distress during handling, and
protection from disease.
These five freedoms form the foundation of many forms of animal legislation throughout the European Union, the United Kingdom, and New Zealand, and unlike in the United States, chickens are not categorically excluded form this legislative protection. In fact, many countries have enacted specific laws which specifically address the welfare of agriculturally used chickens. To read more about the Farm Animal Welfare Council, go to www.fawc.org.uk.
A. European Union
The European Union (EU) is a group of democratic European countries which have set up common governmental and legislative institutions so that decisions on matters of joint interest to the community can be made democratically at European-wide level. In the beginning, the EU consisted of just six countries, and was primarily involved with issues of trade and the economy. Today, the EU deals with many matters, including human rights, jobs and regional development, environmental protection, and agricultural policies.
The European Union consists of twenty-one member states, with ten more states to be added next year. Currently the EU Member-States are: Austria, Belgium, Denmark, Finland, France, Germany, Greece, Ireland, Italy, Luxembourg, Portugal, Spain, Sweden, The Netherlands, and the United Kingdom. The ten states to be added next year are: Cyprus, Czech Republic, Estonia, Hungary, Latvia, Lithuania, Malta, Poland, Slovakia, and Slovenia. Switzerland, Norway, Iceland, Russia, Ukraine and the Vatican, among others, are not part of the EU.
The EU’s Treaty of Amsterdam in June 1997 recognized that animals are sentient beings (i.e. capable of feeling pain) and required that animal welfare be considered when policies relating to agriculture, transport, and research is formulated or implemented. Since then, the focus of agricultural policy in the EU:
“. . . is increasingly on quality rather than quantity. This quality concept embraces a range of priorities including improved food safety, environmental protection, rural development, the preservation of the landscape and animal welfare. Traditional price mechanisms do not always allow for important considerations like animal welfare to be properly recognized in the prices paid to producers. If it is to receive the priority demanded by citizens, new mechanisms need to be explored to address this deficiency.”
Commission of the European Communities, Communication from the Commission to the Council and the European Parliament on Animal Welfare Legislation on Farmed Animals in Third Countries and the Implications for the EU, (pdf. file) November 18, 2002 (hereinafter CEC Communication).
The EU protects all animals used for research (pdf. file) and also sees a strong connection between animal welfare and food safety. Research accepted by the European Commission indicates that “ animals that are well treated and allowed to behave naturally are healthier than animals treated badly.” Id. Conversely, overcrowded and severely stressed animals suffer from weakened immune systems that can make them more prone to disease, thus increasing food safety dangers to humans. With the shared goals of food safety, animal welfare, environmental protection, and the preservation of the landscape in mind, the EU has issued a substantial body of legislation dealing with agriculture and animal welfare, only a few of which will be discussed here. For more, information on the laws of the European Union, go to http://europa.eu.int/index_en.htm.
In the legislative structure of the EU, laws can be issued as “Decisions,” “Directives,” or “Regulations.” On the weaker end of the spectrum, Decisions are binding only on those member states’enterprises or individuals to whom the Decision is addressed. Decisions do not require national implementing legislation. Regulations are the strongest form of legislation, and are directly applicable and binding in all EU Member States without the need for any national implementing legislation. They are binding in all member states and prevail over internal legislation. Of intermediate strength, Directives bind Member States as to the objectives to be achieved within a certain time limit, but the implementation of the Directive is decided by the state itself.
There are three major directives from the European Council that provide the bulk of the protection for chickens in the European Union: the “Council Directive 1999/74/EC of July 19 1999 laying down minimum standards for the protection of laying hens” (Laying Hen Directive) (pdf. file); the “Council Directive 98/58/EC of July 1998 concerning the protection of animal kept for farming purposes” (Farming Directive) (pdf. file); and “Council Directive 91/628/EEC of 19 November 1991 on the protection of animals during transport.” (Transport Directive) (pdf. file). Chickens and other poultry are not excluded from the more general acts, and like other animals, must be farmed, slaughtered, and transported humanely.
i. The Laying Hen Directive
The Laying Hen Directive currently in force is most notable for its decision to outlaw the use of battery cages for laying hens by January 1, 2012. The delay in outlawing the cages is to allow sufficient time for egg producers to switch over to the new requirements. Battery cages were outlawed because the Council of the European Union felt that the “welfare conditions of hens kept in current battery cages . . . are inadequate, and that certain of their needs cannot be met in such cages; the highest possible standards should therefore be introduced. . . .” Id. at preamble.
The Directive applies only to establishments rearing over 350 hens, and not to establishments rearing only breeding laying hens. Starting on January 1, 2003, producers still using battery cages had to increase the space available per hen form 450cm2 to 550 cm2, and follow a number of other requirements regarding cage height, number and placement of feeders and waterers and claw-shortening devices. (The average amount of space per hen in the United States is 310 cm2 per bird.)
Starting on January 1, 2012, all egg producers must rear their laying hens in an alternative system such as free-range, barn raised, perchery or in so-called “enriched cages.” Enriched cages must provide each bird 750 cm2 of room, a nest, litter for pecking and scratching, claw-shortening devices, and perches. Most parties agree that the requirements for enriched cages are intentionally strict in order to encourage the use of one of the other systems. To date, only four Member-States, Austria, Belgium, Greece and Italy have failed to implement the Laying Hen Directive and The European Commission has referred these states to the European Court of Justice.
One additional regulation, the “Council Regulation (EC) 5/2001 of 19.21.2000 on certain marketing standards for eggs” (pdf. file) indirectly provides an animal welfare benefit for chickens. The regulation, which became effective on January 1, 2002, requires that all eggs, even eggs imported from non-EU nations, be labeled with the specification of the rearing method used to produce the eggs. Although the exact form of the labels varies based on the implementing rules of each member state, generally there are five possible labels: “free-range,” “semi-intensive,” “deep litter,” “perchery,” and “cage production.” A subsequent regulation detailed the specifications of these methods, but in general, “free-range” is the least intensive and “cage production” being the most intensive. If the eggs come from a non-EU nation, and the sufficient guarantee cannot be made as to that country’s equivalence with EU standards and rules, then the imported eggs will bear the label, “farming method not specified” or be labeled with simply the country of origin.
Mandatory labeling was deemed necessary in part to reinforce the animal welfare rules outlined above, but also because of an EU sociological study that showed that a lack of labeling on “animal friendly” products may have prevented some consumers from buying those products. There were also concerns that some labels were misleading as to the rearing methods used and thus hindering efforts by some egg producers to raise their standards. Although not directly addressing an animal welfare issue, the regulation allows consumers to make their preferences clearly known, and for egg producers to up their production of “animal friendly” eggs if there is a market for it. Recent studies have shown that free-range eggs now have a market share of 20% in the UK, 25% in Denmark and 40% in Austria.
B. Other European CountriesThe EU’s Regulations and Directives set minimum standards for animal welfare that Member-States are allowed to exceed if so desired. Sweden prohibits beak trimming and banned the use of battery cages for laying hens after January 1, 1999. Switzerland, although not an EU member, has its own animal Welfare Act that prohibited the use of battery cages systems beginning in 1991. Finland will ban all battery cages 2005, seven years earlier than the Laying Hen Directive required.
The United Kingdom not only implements EU legislation, but is also active in establishing additional Codes of Welfare and in recommending new EU legislation as well. The UK, through Defra, the Department of Environment, Food and Rural Affairs, has developed extensive Codes of Welfare (pdf. file) for both laying hens (pdf. file) and broiler chickens (pdf. file), as well as sheep, pigs, cattle and other animals. Defra is currently working to encourage the European Commission to bring forward proposals for EU-wide welfare standards on broiler chickens, as well as funding a research project to investigate leg health problems in broiler chickens. To learn more about Defra go to www.defra.gov.uk/animalh/welfare/farmed/ . To read the UK Welfare of Farmed Animals Act, click here. To read the UK General Animal Welfare Provisions, click here.
Sweden prohibits beak trimming in chickens, and banned the use of battery cages for laying hens after January 1, 1999. Switzerland, although not an EU member, has its own Animal Welfare Act that prohibited the use of battery cages systems beginning in 1991. Finland will ban all battery cages 2005, seven years earlier than the Laying Hen Directive required. To read the Swedish Animal Welfare Act, click here. To read the Swiss Animal Protection Act click here (pdf. file), and to read the Swiss APA Guidelines in Table Form, click here.(pdf. file)
C. New Zealand
By taking such a strong position in legislating animal welfare, the EU hoped it would inspire other nations, and “serve as an example for many other countries to follow.” (CEC Communication, supra.) One nation the EU appears to have inspired is New Zealand, which regularly sends over 40% of its meat and livestock exports to the European Union. New Zealand recently passed its own Animal Welfare Act in 1999 (the NZ Act). To read more about the New Zealand Animal Welfare Act, visit: http://www.maf.govt.nz/biosecurity/legislation/animal-welfare-act/part6/index.htm.
The NZ Act, though not quite as encompassing as EU legislation, is still comprehensive and thorough, enacting minimum standards for rearing, slaughtering and transporting animals. Violating the minimum standards supports prosecution under the Act, and adhering to the minimum standards is a defense to prosecution. The Act seeks to balance the needs of animal welfare and agricultural producers in a way that could serve as a regulatory model existing somewhere between the European system and the American one.
Based on the same five freedoms recognized in European animal welfare laws, the Act describes specific codes of welfare that include minimum standards, recommended practices, and recommended best practices. It includes in its definition of “animal” not only mammals, birds, and reptiles, but also amphibians, fish, crabs, crayfish, squid and octopus. The Act specifies Codes of Recommendations for sheep, pigs, ostriches, emus, lobsters, eels, cattle, poultry, dogs, horses, and deer.
Two Codes of Welfare specifically address chickens: the “Code of Recommendations and Minimum Standards for the Welfare of Layer Hens” and the “Broiler Chicken Code of Welfare.” The Code for Laying hens sets out standards for the care of hens from hatching to slaughter, and includes not only the bare recommendations, but often explicit instructions on how to carry out the recommendations as well.
Although the Act still permits battery cages for hens at a density no longer allowed in Europe (450 cm2 per hen) the Animal Welfare Advisory Committee admits to being “particularly concerned” about the use of battery cages, and suggests that alternative practices be implemented at the “earliest opportunity.” Even so, New Zealand’s minimum area per hen still exceeds the common minimum used in the United States.
Similarly, the Code allows debeaking and forced molting, but places limits on the practices. For example, adult birds can not be debeaked, and no bird can go completely without food or water for more than 48 hours. The Code for Broiler Chickens sets out similar minimum standards and recommended practices for the care, transportation and slaughtering of broiler chickens.
V. Alternatives to Regulation: Voluntary Protection of Animals
A. Researchers: The National Institute of Health Guide
Although the Animal Welfare Act (AWA) specifically excludes rats, mice, birds and farm animals from its protection, the National Institute of Health (NIH) requires that all research facilities carrying out research funded in whole or in part by the NIH care for their laboratory animals following the guidelines in its book, The Guide for the Care and Use of Laboratory Animals (the “Guide”). Some estimates suggest that at least 90% of all lab animals are being used in a research study funded at least in part by the NIH. To learn more about the National Institute of Health, visit them at: http://www.nih.gov/. Unlike the AWA, the Guide does include rats, mice, birds and farm animals, and facilities found not to be following the Guide will not continue to receive funding. The guide spells out precise space, temperature and housing requirements for most commonly used lab animals, including chickens. For an example of what these guidelines look like, please see the University of Minnesota’s Animal care website at http://www.iacuc.umn.edu/guides/.
B. Corporate Reform: McDonald’s and Fast Food
In 1991 McDonald’s initiated a lawsuit against two defendants in England for libel. The defendants had distributed a pamphlet that claimed, among other things, that McDonald’s was responsible for cruel farming practices. The case, commonly known as the “McLibel” case, took seven years to conclude, and although McDonald’s technically won the case, it was is generally considered a public relations disaster for the corporation. To read more about the McLibel case, go to www.mcspotlight.org.
In England, (unlike in the US) defendants accused of defamation must prove that their potentially libelous statements were indeed true, and there is no first amendment right to free speech in the UK. Therefore, the court had to determine not whether McDonald’s had violated an anti-cruelty statute, but whether or not the defendant’s statements (that McDonald’s was cruel to animals) were true. The defendant’s lost the case only because they could not prove that everything contained in the pamphlet was true, although the Judge did rule that McDonald’s was responsible (through its enormous buying power) for cruelty to some animals, especially chickens.
The court found a multiple of cruel practices were taking place in the chicken producing industry, including the battery cage, overcrowding of broiler chickens in the broiler barns, and the feed restrictions placed on the breeding stock for broiler chickens. As this was a libel case, the Judge’s ruling did not have any effect on the legality of the farming practices, but the case did mark the first time an “objective court closely examined the farming industry and found it wanting.” See David Wolfson, McLibel, 5 ANIMAL LAW 21, 48 (1999).
Today, McDonald’s, which claims to want to become “an ambassador for change in the industry” has implemented a host a voluntary reforms, including its own set of animal welfare guidelines. See McDonald’s website: http://www.mcdonalds.com/ . In 2001, McDonald’s issued its Laying Hen Guidelines for egg suppliers which prohibited forced molting of hens, and increased housing space for hens to 50 percent more than the U.S. industry average. (However, this would only likely raise the amount of space per hen to about 465 cm2, which is still below the EU standard of 550cm2/ /hen.)
McDonald’s established its own Animal Welfare Council, and its Animal Welfare Guidelines state that “treating animals with care and respect is an integral part of an overall quality assurance program that makes good business sense. . . animals should be free from cruelty, abuse and neglect while embracing the proper treatment of animals and addressing animal welfare issues.” However, exact details on the changes implemented by McDonald’s are hard to come by, thus making it difficult to compare McDonald’s own corporate reform efforts to the animal welfare laws instituted in other countries.
Likewise, the fast food giant, KFC, (a Yum! Brands company), perhaps indeed following McDonald’s lead, has instituted its own animal welfare guidelines. Unlike McDonalds, KFC prohibits its suppliers from debeaking its chickens and from using any growth-promoting substances. However, other than the same corporate pronouncements of “concern” for the “welfare of animals,” specific details on their animal welfare program is hard to find. See the KFC website: http://www.kfc.com.
C. Voluntary Labeling Schemes
In an effort to improve animal welfare standards for farm animals, many organizations have devised voluntary labeling schemes that let consumers know how the animal was raised and treated. Labeling is important because unless consumers are offered a clear choice, they are unable to express their possible desire for more humanely raised animals and animal products.
The humanly raised labeling movement is just getting started in the United States, but voluntary labeling is well established in the United Kingdom with its “Freedom Food” label. See, for example, the U.S.'s "Certified Humane" label at www.certifiedhumane.com/. “Freedom Food” as a labeling system was set up in 1994 by the Royal Society for the Prevention of Cruelty to Animals (RSPCA). The goal of the system is to improve the lives of as many farm animals as possible by establishing animal welfare standards based (again) on the five freedoms as defined by the Farm Animal Welfare Council: freedom from hunger and thirst, freedom from pain, injury and discomfort, freedom from discomfort, and freedom to express natural behaviors. Visit the Freedom Food website by clicking here.
The group works with the food industry and retailers to encourage retailers to sell their customers meat, poultry, eggs and dairy products which have been produced from animals that have been reared, transported and slaughtered according to the RSPCA “Freedom Food” welfare standards. The producers are inspected annually to see that they are following the recommendations, and producers are also subject to random spot inspections as well. For chickens specifically, the Freedom Food label does not allow laying hens to be raised in battery cages.
The Freedom Food brand currently has over 4000 members including food producers, slaughterhouses, and livestock transporters. Over 19 million animals are part of the Freedom Food system with free-range eggs being their most popular item. Over 90% of all the non-cage eggs produced in the UK bear the freedom Food label, with over 72 millions units sold per year. Freedom Food estimates that it has over 8% of the egg-market in the UK, and 16% of the total retail market.
Items bearing the Freedom Food label are sold in over 6000 stores, including the Wal-Mart owned grocery chain ASDA, which sells six different kinds of Freedom Food eggs. One dozen large free range eggs cost about 1.62 pounds, or about $2.62US, which is the same price free range eggs commonly sell for in the United States.
The first animal protection laws in the United States were passed to protect the working animals of America’s farms, and it was only later that dogs, cats and other animals of limited economic value were brought into the fold. Ironically, today it is only those animals of small economic value that are protected while the nation’s agricultural animals are left with only very limited protections. Chickens, by far the most numerous of all farmed animals, are left without any protections at all. What accounts for the discrepancy between the animal protection laws of the United States and those found in other Western nations?
Many commentators believe that the fault lies with the intensive factory farming system that has all but replaced the family farm in the United States. When, in the past, a small farmer raised only a few animals for his own direct benefit, it was only reasonable that the farmer give each animal the best care that he or she could provide. Each animal was individually valuable, and the loss of even one hen would mean the loss of future eggs, chicks, and meat. But on today’s factory farms, the sheer number of animals involved in each operation allows for a much larger margin of error. Chickens especially are of such little individual value, that chicken producers plan to lose millions of chickens each year to disease and injury, and still return a profit.
Factory farming is big business, even if the end product is small. In 2002, the U.S. exported over $114 million worth of eggs and egg products, and the increasingly consolidated nature of the animal product industry meant that the top 11% of the country’s egg producers supplied over 40% of the nation’s eggs. In 1987 an estimated 2,500 producers were in the egg business, while today that number has shrunk to only 650 producers.
The broiler business is dominated by Tyson Foods, the nation's number one broiler company, which alone supplies 25% of the nation’s poultry meat -- over 41 million broilers in 2002. The top five broiler companies together produce over 55% of all broilers. These powerful companies rear and slaughter their chickens without any state or federal animal welfare laws, and may fear that profitability would suffer if new restrictions were put into place. For more information see the U.S. Poultry and Egg Board at http://www.poultryegg.org/ and the American Meat Institute at www.meatami.com.
One additional factor is the lack of public awareness of the animal welfare problem. The EU typically cites a “growing public concern” for animal welfare and an increasing public awareness of the connection between animal welfare and food safety, as major factors leading to the development of stronger animal welfare laws. Perhaps due to the sheer size and increasing urbanization of the United States, most people probably do not know about the lack of minimum animal welfare standards for farm animals. Increasing public awareness of the problem, as well as successful legislative models from other nations, may eventually lead to increased protections for all farmed animals.
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