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Can Walmart's New Animal Welfare Policy End Factory Farming?

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Can Walmart's New Animal Welfare Policy End Factory Farming? Journal of Agriculture, Food Systems, and Community Development ISSN: 2152-0801 online www.AgDevJournal.com The tipping point: Can Walmart’s new animal welfare policy end factory farming? Carrie A. Scrufari * Vermont Law School Submitted September 15, 2015 / Revised December 13 and 14, 2015, and January 25, 2016 / Accepted January 25, 2016 / Published online June 17, 2016 Citation: Scrufari, C. A. (2016). The tipping point: Can Walmart’s new animal welfare policy end factory farming?. Journal of Agriculture, Food Systems, and Community Development, 6(3), 103–120. http://dx.doi.org/10.5304/jafscd.2016.063.009 Copyright © 2016 by New Leaf Associates, Inc. Abstract reach agricultural animals, not a single one Undercover investigations revealing abuse and embraces the Five Freedoms that are recom- headlines concerning deadly viruses are increasing mended according to the Farm Animal Welfare awareness regarding how we treat farm animals Council. These recommendations include that intended for human consumption. Pictures on animals be free from hunger, thirst, discomfort, food products depicting hens and cows peacefully pain, and distress, and that they be able to express roaming in the grass outside a barn belie the their normal behavior. In an unprecedented move, current reality of factory farming and the suffering Walmart recently announced that its suppliers will animals endure under this system. This policy adhere to animal welfare standards embracing the analysis examines how animal welfare has been Five Freedoms. However, Walmart’s policy has regulated in this country and exposes the multitude several shortcomings, including a voluntary of exemptions that exist for farm animals. The compliance regime and no deadline for implemen- federal Animal Welfare Act, Twenty-Eight Hour tation. Nevertheless Walmart’s animal welfare Law, Federal Meat Inspection Act, Humane policy is likely this country’s best hope for shifting Methods of Slaughtering Act, and the Poultry current practices away from factory farming in Products Inspection Act all fail to adequately favor of more humane and healthy handling of regulate the treatment, care, and travel of agricul- agricultural animals. tural animals. If states attempt to take matters into their own hands, they run into a host of preemp- Keywords tion problems. Even for the regulations that do factory farming, animal welfare, Animal Welfare Act, Twenty-Eight Hour Law, Federal Meat * Carrie A. Scrufari, Esq., LL. M. Fellow, Center for Inspection Act, Humane Methods of Slaughtering Agriculture and Food Systems, Vermont Law School; P.O. Act, Poultry Products Inspection Act, preemption, Box 499; South Royalton, Vermont 05068 USA; +1-443-610- Five Freedoms, Farm Animal Welfare Council, 2308; [email protected] voluntary compliance, Commerce Clause Volume 6, Issue 3 / Spring 2016 103 Journal of Agriculture, Food Systems, and Community Development ISSN: 2152-0801 online www.AgDevJournal.com “Look at the world around you. It may seem like an battery cages for egg-laying hens. Gestation crates immovable, implacable place. It is not. With the are narrow, 2-foot wide metal crates that house slightest push—in just the right place—it can be sows (female pigs) while they are pregnant; the tipped.” (Gladwell, 2002, p. 259) crates do not provide enough space for the sows to turn around (Humane Society of the United States Introduction [HSUS], 2014). Similarly, battery cages are small, The lives of chickens who lay the eggs we buy at wire cages that house laying hens for the duration large grocery stores today bear little to no resem- of their lives; they provide each hen with 67–76 blance to that of chickens raised on small family square inches (432–490 square cm) of space. The farms decades ago. Today, they are restrained in battery cage provides less space than a standard wire cages with less than a sheet of paper’s worth sheet of paper (94 square inches or 603 square cm) of square footage, often housed with dead and and prevents hens from spreading their wings decaying cage mates, and are not provided any (Friedrich, 2013). Recognizing the cruelty inherent opportunity to perch, roost, forage, spread their in gestation crate and battery cage operations, wings, or experience the outdoors. Baby chicks Europe has banned their use since 2013. In part have their beaks seared off with a guillotine-like because Walmart’s animal welfare announcement machine, without painkillers, so that they do not addressed these two housing practices, it received peck their cage mates to death as a result of their wide support from animal rights groups, and the extreme stress and frustration at living in such HSUS endorsed Walmart’s move. Although cramped conditions. The wire caging often Walmart’s announcement signals a significant mangles the birds’ feet, heads, and necks, thereby turning of the tide with respect to animal welfare creating bleeding, open sores (Soloman, 2015). and a tipping point in terms of the market power Over 93 percent of the 7.41 billion eggs produced that can be wielded to encourage stronger animal every year in this country are sourced from welfare standards, it falls short of what is necessary operations using this battery cage system (Strom, to implement timely, lasting, and meaningful 2015). reforms. Undercover investigations have revealed other Walmart’s plan relies on voluntary compliance abuses to broiler chickens raised for meat. This from its suppliers and does not contain any hard year, Tyson Foods—a major Walmart supplier deadlines or timelines specifying when suppliers headquartered in Mississippi—and workers were should meet these new animal welfare standards. charged with 33 counts of criminal cruelty to Walmart could receive positive press for its deci- animals after the nonprofit advocacy organization sion to prioritize animal welfare without actually Mercy For Animals released an undercover investi- ensuring that its suppliers are complying with the gation showing workers punching and throwing new policy. Notably, Costco made a similar chickens and ripping off their heads (Mercy For announcement with respect to battery cages seven Animals, 2015). A similar undercover investigation years ago, but, as a recent HSUS undercover this year showed workers beating pigs in the face investigation has revealed, Costco is still sourcing with boards and packing them into dirty, over- from suppliers who raise animals in abhorrent crowded pens with other sick and injured pigs conditions. After weeks of bad press following the (Mercy For Animals, 2015). Similar activities were undercover investigation, Costco has again com- documented at Seaboard Foods, a Walmart pork mitted to source its eggs from battery cage–free supplier in Colorado (Mercy For Animals, 2015). operations, claiming that it “expects to sell over In response to these undercover investigations one billion cage free eggs” in 2016 (Shanker, 2015). and consumer petitions expressing outrage, However, it still remains to be seen whether Walmart announced that its food suppliers should Costco can follow through on any of its cage-free adhere to higher standards for animal welfare, pledges. Animal welfare advocates should be asking including limiting prophylactic antibiotic use and the same questions of Walmart’s pledge. eliminating the use of gestation crates for pigs and This policy analysis argues that although 104 Volume 6, Issue 3 / Spring 2016 Journal of Agriculture, Food Systems, and Community Development ISSN: 2152-0801 online www.AgDevJournal.com Walmart’s position on animal welfare is laudable, provides a historical overview of how animal wel- relegating animal welfare to the market under a fare has been regulated in the United States and voluntary compliance regime with no deadline in addresses the gaps and loopholes in the animal place is insufficient. Nevertheless, Walmart’s welfare regulations that exist for agricultural ani- announcement likely remains this country’s best mals. The second section discusses the preemption hope for improving the lives of agricultural ani- and Commerce Clause challenges states face when mals. In the face of an ineffective federal regulatory they try to take matters into their own hands to regime for animal welfare, Walmart could succeed regulate animal welfare. The third section addresses where Congress has not. State regulatory protec- the commonly accepted agricultural practices that tion for farmed animals is vulnerable to several are permitted in the agricultural industry and the challenges, including preemption1 and dormant lack of regulation over these practices that many Commerce Clause challenges,2 as will be discussed. animal welfare advocates consider inhumane. The Although all states have animal cruelty laws that do final section critiques the market’s solution to this not run afoul of preemption and dormant Com- lack of regulation: letting market forces drive merce Clause doctrines, most of these laws either animal welfare conditions, as evidenced by various impliedly permit inhumane treatment of animals retailers’ announcements to prioritize animal raised for agricultural use or expressly exempt these welfare. This policy analysis concludes that, while animals altogether. Without satisfactory federal or flawed in fundamental respects, Walmart’s recent state protections for farmed animals, consumers announcement—coupled with continuing pressure and advocates have filled the gap by demanding from consumers and animal welfare advocates—is change in the market place. Various
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