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LAW 565AAnimal Law Holden Agnew-Pople

The Plight of Americas Silent Majority: Current Factory Farming Practices, The Reason for Their Existence, and the Road to Eliminating Them INTRODUCTION The American Dream is a national ethos of the United States. It embodies the belief that the United States is a place where every denizen is limited only by that denizens ambitions. The sad reality is that there is a vast chasm between the American Dream and the actual conditions in which most of Americas denizens live. In fact, 97 per cent of Americas denizens are enslaved under the aegis of the federal and state governments. Each year, ten billion husbandry animals are raised and killed by agribusiness in the United States.1 For the short period of time during which they are alive, their lives are Hell incarnate. Unlike the images that exist in most Americans minds when they think of farmsfor example, acres of green pastures on which contented animals grazevirtually all husbandry animals in the United States are raised on Animal Feeding Operation (AFO) premises,2 which are commonly known as factory farms. I. BACKGROUND AFOs are the result of the Wal-Martization of animal husbandry. To articulate, AFOs are agricultural operations where animals are kept and raised in confined situations for a total of 45 days or more in a 12-month period and feed and hydrational fluids are delivered to the animals in

Susan Adams, Legal Rights of Farm Animals, 40 MD. B.J. 19, 19 (2007). This figure excludes fish and other aquatic animals. 2 See id.

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set amounts at set times, as opposed to the practice that occurs on traditional farms, where animals graze or otherwise receive food and hydrational fluids in pastures as they please.3 Just how pervasive are AFOs in Americas husbandry industry? A whopping 99 per cent of husbandry animals are raised in AFOs!4 These animals include cows, pigs, layer chickens, and broiler chickens.5 Cows Cows are raised for two reasons: to produce milk and to produce meat. Regarding the former, there are roughly 9 million milk-producing cows in America at any given time.6 As a result of the bovine growth hormones with which they are injected, the unnatural diets they are fed, and their forcedly high birth rates,7 todays dairy cows unnaturally produce about 100 pounds of milk per day, which is about 10 times more milk than cows produced only a few decades ago.8 The unnaturally high level of milk produced by contemporary cows causes them to develop mastitis, which is a painful bacterial infection causing a cows udder to swell.9 Regrettably, mastitis is far from being the only sorrow dairy cows face at AFOs. Many of these dairy cows have up to two-thirds of their tails surgically removed, as milk producers mistakenly believe that this allows

Animal Feeding Operations, ENVTL. PROTECTION AGENCY (Feb. 16, 2012, 12:05 PM), http://cfpub.epa.gov/npdes/home.cfm?program_id=7. 4 What Is a Factory Farm?, ASPCA, http://www.aspca.org/fight-cruelty/farm-animal-cruelty/what-factory-farm (last visited Mar. 29, 2014). 5 Factory Farms, A WELL-FED WORLD, http://awellfedworld.org/issues/animalprotection (last visited Mar. 29, 2014). 6 Cows on Factory Farms, ASPCA, http://www.aspca.org/fight-cruelty/farm-animal-cruelty/cows-factory-farms (last visited Mar. 29, 2014). 7 Cows, like humans, only produce milk as a side effect of giving birth, so, to maintain milk production, cows are continuously impregnated in what the industry calls rape racks. Factory Farms, A WELL-FED WORLD, supra note 5. When their calves are born, they are immediately removed from themGod forbid these calves consume any milk that could be sold to the American public! Id. 8 Cows on Factory Farms, ASPCA, supra note 6. 9 Id.

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their udders to stay cleaner.10 Additionally, because dairy cows confined at AFOs are forced to stand on hard surfaces for hours on endsomething for which their hooves are not madewhile they are hooked up to milking machines, many develop lameness, a condition where cows feet become inflamed, making it painful to walk.11 As for the fate of beef cows, while they are able to live to 25, they are generally killed at just one to three years of age.12 What distinguishes beef cows from all other animals at an AFO is that they are the only factory farmed animals still raised largely raised outdoors.13 Their lives, however, are nevertheless, to use the famous Hobbesian phrase, poor, nasty, brutish, and short. They are branded and castrated without painkillers, may have their horns removed without painkillers, and live outdoors amid all weather extremes.14 Oh, and by the way, the feedlots on which they are raised are so densely inhabited that a resident of Mumbai would faint!15 The density of these feedlots explains why they are fed unnatural dietsthe density and mounds of excrement preclude them from grazing, as cows would normally do.16 The end result of the AFO mass-production process is that 39 million beef cows are slaughtered each year.17 That is a greater number than the population of California! Pigs For those who think the human birth rate in the United States is high, it aint got nothin on the birth rate of pigs in the United States. Each year, [t]he U.S. raises some 100 million pigs for
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Id. Id. 12 Id. 13 Id. 14 Id. 15 See id. 16 Beef cows are fed an unnatural grain diet, meant to bolster their weight, which is very hard on their bodies, causing illness, pain, and sometimes death. Id. 17 Factory Farms, A WELL-FED WORLD, supra note 5.

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food.18 This does not seem nearly as far-fetched when one learns about the AFO husbandry practices concerning pig rearing. To start with, although pigs can live up to 15 years, most of those raised on factory farms are slaughtered at just six months.19 Between birth and slaughter, piglets are placed in large, windowless sheds without fresh air, sunlight or outdoor access.20 Inside these sheds, [t]heir pens are too small and crowded for adequate movement and exercise and [a]mmonia fumes rise to dangerous, uncomfortable levels due to the pigs waste.21 As if piglets do not already have it bad enough, AFOs castrate [them]without painkillersbecause consumers dont like the smell and taste of uncastrated males.22 Moreover, it is also common practice for AFOs to cut off piglets tails to keep them subdued.23 To maintain a surge of piglet births, their mothers, referred to as sows, are perpetually pregnant.24 In contrast to human women, pregnancy for sows is a miserable experience: Most sows in the U.S. spend their reproductive lives confined to a gestation crate. These crates are barely bigger than the sows body and prohibit her from turning around. Sows are artificially inseminated and kept in their gestation stalls until a few days before birth, at which time they are moved to equally restrictive farrowing crates to give birth. They remain in there for two to three weeks, nursing their young, and then are placed back in their gestation crates and reinseminated.25 Once they lose their productive capacity, they are sent to slaughter.26 Chickens

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Pigs on Factory Farms, ASPCA, http://www.aspca.org/fight-cruelty/farm-animal-cruelty/pigs-factory-farms (last visited Mar. 30, 2014). 19 Id. 20 Id. 21 Id. 22 Id. 23 Id. 24 Id. 25 Id. Why are sows forced to live in such abysmal conditions? The reason is that [o]vercrowding pigs pays. The Pork Industry, PETA, http://www.peta.org/issues/animals-used-for-food/factory-farming/pigs/pork-industry/ (last visited Mar. 30, 2014) (alteration in original). 26 Id.

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Chickens are separated into two groups: layers and broilers. Layers are chickens that are raised for egg production. At AFOs, [t]hey are crammed 5-7 birds into wire-mesh cages the size of a newspaper page stacked on top of one another. The birds must stand on a sloping wire-mesh floor, which cuts their feet, while the wire-mesh walls rub off their feathers and bruise their skin.27 To prevent them from pecking each other as a result of the stress they are forced to endure, they have the tips of their beaks seared off with a hot iron.28 About the time layers turn 15 months old, they are force-molted, which entails keeping them in low lighting and feeding them a low-calorie diet for seven to 14 days, which stresses their systems and increases egg production for about six more months.29 Afterward, it is off with their heads!30 All told, roughly 450 million layer chickens are killed in America each year.31 Broiler chickens, on the other hand, which are raised solely for meat, are killed in much greater numbers. About 9.5 billion chickens are killed for meat in the U.S. each year.32 Yes, 9.5 billion! So many broiler chickens are able to be raised in the U.S. each year for slaughter, because, as is the case with their companionsthe layer chickensthey live in very crowded, inhumane conditions.33 Chickens raised for meat are generally crowded into large sheds that can hold tens of thousands of birds.34 To add to their misery, they are i) bred to gain weight very quickly, which causes them to be crippled by their own weight and unable to walk, and ii)

27 28

Factory Farms, A WELL-FED WORLD, supra note 5. Id. 29 Id. 30 Id. 31 Id. 32 Id. 33 Id. 34 Id.

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forced to live with the poisonous stench of hydrogen sulfide, ammonia, and methane,35 which is a result of the fact they are forced to live alongside their urine and feces. II. THE RAISON DTRE FOR AMERICAS CONTEMPORARY HUSBANDRY PRACTICES Part A: Where are the Feds? Upon learning the suffering to which animals are subjected by AFOs, it is normal to respond, Why has the federal government not done anything to mitigate the suffering of these animals? A primary reason is that the welfare of animals is primarily a state matter. To explicate, in the United States, animals are classified as property,36 and property law is within the ambit of state power. This fact, however, does not give the federal government the ability of altogether passing the buck to the states, for the fact that property law is within the ambit of state power does not preclude the federal government from acting at all. The backdoor means through which the federal government has the power to intervene in this matter is, you guessed it, the almighty Commerce Clause. Pursuant to the Commerce Clause of the United States Constitution, Congress has the power [t]o regulate Commerce with foreign nations, and among the several States.37 To simplify the meaning of this short and cryptic clause, if a producer is engaged in an activity that affects multiple states, the federal government has the power to regulate that activity.38 What does the Commerce Clause have to do with the federal governments ability to mitigate the animal cruelty that occurs on AFOs? Well, AFOs productsmeat and eggs, for exampleare produced for a national, if not international, market. Therefore, the federal

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Id. DAVID FAVRE, ANIMAL LAW: WELFARE, INTERESTS, AND RIGHTS 417 (2nd ed. 2011). 37 U.S. CONST. art. I, 8, cl. 3. 38 Gonzales v. Raich, 545 U.S. 1, 17 (2005).

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government has the power to regulate the activities in which they engage, including how the animals at their facilities are treated. Regrettably, the federal government has not availed itself of the Commerce Clause to improve the treatment of animals on AFOs. The closest it has come to addressing the matter is its passage of the Animal Welfare Act.39 The Animal Welfare Act generally applies to animals used in research, exhibitions, and commercial breeders of dogs and cats sold for research and the pet trade.40 Noticeably, then, the Animal Welfare Act does not apply to animals raised for food or food production.41 At least two general inferences can be made from the four paragraphs preceding this one. First, it can be inferred that the federal government is content with the status quo regarding the treatment of husbandry animals. This is a valid inference, as it has the power to address the welfare of husbandry animals under the Commerce Clause should it wish to do so. Also, why else would it have passed the Animal Welfare Actwhich provides for the welfare of dogs, cats, research animals, and exhibition animalsbut not passed a statute that provides for the welfare of husbandry animals? Second, it can be inferred that the federal government does not want to infringe on the states general prerogative, that is, deciding what the laws are regarding property matters in their respective jurisdictions. As was discussed, animals are classified as property in the United States;42 therefore, federal politicians would alienate their state counterparts if they were to, as their state counterparts would view it, commandeer their authority regarding property law matters.
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See David J. Wolfson, Beyond the Law: Agribusiness and the Systemic Abuse of Animals Raised for Food or Food Production, 2 ANIMAL L. 123 , 125-26 (1996). 40 Id. at 125. 41 Id. 42 See infra p. 6.

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Part B: What Are the States Respective Excuses? At this point, a normal response is, Do the states have complete and utter disrespect for animals? The answer is, No. Every state has enacted anticruelty laws.43 The follow-up question to this response is, naturally, Why are the operators of AFOs not being prosecuted under the anticruelty laws? Sadly, the answer is that the majority of states anticruelty statutes specifically exempt customary farming practices.44 Simply put, customary farming practices are practices that are utilized by AFOs.45 These practices include the ones that were described in Section I of this essay. For those wondering, What gives for the exemption for customary farming practices? it can be inferred that this exemption to most states anticruelty laws is a result of animals status as property in the United States.46 Forcing AFOs to alter their production methods wouldfrom the perspective of American agribusinesses, farmers, members of the legal community, and politiciansconstitute an unlawful interference with the use of their property. By contrast, actions that do constitute animal cruelty and are therefore punishable, such as gratuitously beating a dog, serve no utility, and, as a result, disallowing them does not interfere with the proper use of ones property. III. IS IT POSSIBLE TO CHANGE THE STATUS QUO? Notwithstanding the facts the federal government does not have an interest in regulating the nations husbandry practices47 and the states are very permissive of the cruel treatment to which

43 44

Wolfson, supra note 39, at 127. Id. at 135. 45 See id. at 136. 46 For the discussion regarding animals status as property in the United States, see infra p. 6. 47 See infra pp. 6-7.

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agribusinesses subject the animals over which they have property rights,48 there are nevertheless avenues available to change the status quo of how husbandry animals are treated. One avenue involves making a raucous, so to speak. Another avenue involves using consumer pressure to effectuate more humane treatment for husbandry animals. A third avenue involves using the regulatory power of the state to preclude animal products from entering a market that are the result of inhumane methods of production. A: Aint No Power Like the Power of the People, Cause the Power of the People Dont Stop! When the American public comes together to further a cause, it is a formidable force. When such a condition is present, big things get done: the legalization of same-sex marriage, the legalization of marijuana, the recall of soldiers sent to war fronts overseas, and so forth. Applying this concept to animal welfare, three examples come to mind where public outrage regarding the state of animal welfare led the government to take action. One example is the passage of the Dolphin Protection Consumer Information Act (DPCIA), which was passed by Congress in 1990. DPCIA was passed as a result of public outrage about the use of total encirclement netting, a method whereby tuna fishers recklessly caught dolphins in their nets along with tuna fish. As a result of DPCIA, countless dolphins lives have been spared. Another example is the 1966 passage of the Animal Welfare Act. During the 1960s, the American public was concerned about i) the use of animals in science, research, and testing and ii) the mass theft of dogs and cats, which ultimately ended up in research facilities.49 To assuage

48 49

See infra p. 8. FAVRE, supra note 36, at 350.

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their concerns, Congress, as has been mentioned, passed the Animal Welfare Act, which, among other things, set out to establish humane standards for the treatment of dogs, cats, and certain other animals by animal dealers and research facilities and protect the owners of pet dogs and cats from the theft of their pets.50 A third example is United States Department of Agricultures 2008 closure of the Hallmark Meat Packing plant. The impetus of this closure were images of horrific animal cruelty [that] were blasted by Internet, television, and print media throughout the country in January 2008.51 These images contained dairy cows being beaten, shocked, and nearly drowned to force them into the kill box to be slaughtered.52 The American public was outraged at what it saw.53 Were it not for an activists having covertly filmed the diabolical conduct and the publics consequent vociferous protests, there would not have been the swift reaction that occurred.54 The moral of the story, then, is be vocal, America! Raise hell about the treatment of husbandry animals to members of Congress and agribusinesses. History has demonstrated time and time again that politicians and business elites will acquiesce to the peoples demands when they are sufficiently loud. B: Its the Marketplace, Stupid! One of the virtues of a free market is that both consumers and businesses have the power to prompt changes in the marketplace. The animal-product market is no exception.

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Id. at 352. Nancy Perry & Peter Brandt, A Case Study on Cruelty to Farm Animals: Lessons Learned from the Hallmark Meat Packing Case, 106 MICH. L. REV. FIRST IMPRESSIONS 117, 117 (2008). 52 Id. 53 Id. 54 See id. at 119-20.

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Recently, I assume because of corporate consciousness and to capitalize on consumers increasing demand for animal products derived from animals that were treated humanely, American corporations are demonstrating their repugnance at the worst practice affecting layer chickens (hens): their confinement in battery cages.55 National grocery chains Whole Foods Market, Wild Oats Natural Marketplace, and Trader Joes do not sell cage eggs,56 which are eggs that come from layer chickens that are confined in battery cages. A number of regional grocery chainsincluding Earth Fare, Andronicos, and Jimboshave implemented the same policy.57 As for food-service providers, Bon Apptit, Burger King, and Ben & Jerrys began to phase out cage eggs in 2007, and restaurant chains Burgerville and Finagle A Bagel have already completely ended the practice of using cage eggs.58 The layer chicken segment of the animal-product industry is not the only segment that has experienced positive changes recently. There have also been positive changes concerning the pork-production industry. Whole Foods Natural Marketplace and some other major retailers, for example, have stopped selling pork from suppliers that use gestation crates.59 Even more significant, Smithfield Pork, the largest pig producer in the country, announced it would phase out the crates within 10 years at the 187 farms it owns and begin grouping sows in pens where they can move around,60 and Cargill, the nations eighth largest pig producer, is also transitioning away from gestation crates in its operations and more than half of its sows are no longer confined in them.61

55 56

Adams, supra note 1, at 20. Id. 57 Id. 58 Id. 59 Id. at 21. 60 Id. 61 Id.

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To ensure that these self-induced changes are rewarded, to prompt other businesses to follow suit, and to encourage even greater self-induced changes, it is imperative that consumers go out of their way to buy, for example, non-cage eggs and pork produced by businesses such as Smithfield and Cargill. We American consumers have a lot more power than many of us think we do. Remember the Chick-fil-A same-sex-marriage controversy?62 C: U Cant Touch This Although all the states have a long way to go when it comes to promoting husbandry animals welfare, it is unfair to cast aspersions on them equally. Some states are, after all, more mindful of the issue of husbandry animal welfare than other states. For example, regarding the use of battery cages, by 2007, six statesArizona, Connecticut, Delaware, New Hampshire, Vermont, and Washingtonintroduced legislation . . . to either ban the use of battery cages or require the state to procure only cage-free eggs;63 regarding calves raised for veal, [l]egislation was introduced . . . in Washington . . . to ban the traditional veal crate and [v]oters in Arizona approved a citizen initiative in November 2006 that banned the confinement of calves raised for veal;64 and regarding mother pigs kept in confinement, legislation was introduced in 2007 in four statesCalifornia, Maryland, Oregon, and Washingtonto cab the intensive confinement of pregnant pigs in gestation crates, [v]oters in Arizona approved a citizen initiative in

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To adumbrate, Chick-fil-A CEO Dan Cathy made a statement against same-sex marriage in June 2012, which followed reports that Chick-fil-As charitable endeavor donated millions to organizations which oppose LGBT rights. These facts led many people to boycott Chick-fil-A, which, in turn, caused Dan Cathy to state he should not have publicly opposed same-sex marriage and Chick-fil-A to stop donating to organizations opposed to LGBT rights. 63 Adams, supra note 1, at 20. 64 Id.

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November 2006 that banned the intensive confinement of pregnant pigs, and [v]oters in Florida approved a similar measure [to Arizonas] in 2002.65 As can be seen, certain states have taken commendable first steps to promote the welfare of husbandry animals. To get agribusinesses in their respective jurisdictions on board with these reforms and future reforms and to prevent agribusinesses in the majority of states that have yet to make any meaningful reforms concerning husbandry animal welfare from unfairly taking advantage of these laws, the states that have begun to make meaningful reforms regarding husbandry animal welfare should preclude the sale of animal products in their respective markets that were produced in a manner that they disallow. For example, a state that disallows the practice of confining calves raised for veal should prohibit the sale of veal in its market that comes from a baby cow that was confined. Such an action would not violate the Commerce Clause.66 IV. CONCLUSION In conclusion, most husbandry animals lives in the United States are poor, nasty, brutish, and short and the practices to which they are subjected that make their lives Hell incarnate are performed under the aegis of the federal and state governments. However, there are reasons to believe that the sun will come out tomorrow, so to speak, for husbandry animals. If the American public, which is becoming more concerned with animal welfare, starts to raise hell about husbandry animal welfare to their members of Congress and agribusiness leaders, history has demonstrated that the latter will acquiesce and begin to implement meaningful reforms.
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Id. at 21. See generally Maine v. Taylor, 477 U.S. 131 (1986). The states have the authority to regulate matters of legitimate local concern under their respective general police powers even if such regulations affect interstate commerce. Id. at 138. Even a statute that facially discriminates against interstate commerce will pass constitutional muster if, in addition to serving a legitimate local purpose, the state demonstrates that the purpose could not be served as well by available nondiscriminatory means. Id.

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Additionally, if the American public uses its consumer power to reward businesses that care for the welfare of husbandry animals and punish businesses that do not, cruel agribusiness practices toward husbandry animals will only exist in the annals of agribusiness. Moreover, if states that have outlawed the most egregious husbandry practices preclude agribusinesses that are based in other states and that continue to use those practices from doing business in their respective markets, the termination of the most egregious husbandry practices will eventually be adopted nationwide and other cruel practices will abate. Let us aspire to end the plight of Americas silent majority. In the words of Pope John Paul II, [a] society will be judged on the basis of how it treats its weakest members.

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