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Legislation to Protect the Welfare of Fish \\jciprod01\productn\L\LCA\20-1\LCA106.txt unknown Seq: 1 10-FEB-14 15:31 LEGISLATION TO PROTECT THE WELFARE OF FISH By Kelly Levenda* This Article examines the marginalization of fish under current animal wel- fare laws and regulations, explores the treatment of farm-raised fish during transport and slaughter, and proposes legislation and regulations in these two areas. While evidence indicates that fish are capable of experiencing pain, fear, and suffering—the traditional considerations informing concepts of animal welfare—current pre-slaughter transport and slaughter practices are completely uninformed by notions of fish welfare. Comparing the cogni- tive and sensory capacities of fish to other animals currently receiving animal welfare recognition through official regulation, this Article argues that protections afforded to animals during transport and slaughter should similarly apply to fish. Using the World Organization for Animal Health’s Aquatic Animal Health Code as a model, this Article proposes model legisla- tion for fish transport: the Humane Transport of Fish Act. This legislation would supplement regulations already in place at the state and federal level, which currently pertain only to regulating the aquaculture industry and food safety. This Article also proposes amending the “Humane Methods” sec- tion of the Humane Methods of Slaughter Act to include the slaughter of fish, and proposes related regulations to ensure that fish are humanely slaughtered. The massive amount of fish farmed in the United States and globally each year speaks to the potential impact formal regulation could have on the improvement and protection of fish welfare. I. INTRODUCTION ......................................... 120 R II. OVERVIEW .............................................. 120 R A. Global Overview ....................................... 120 R B. U.S. Overview ......................................... 122 R C. Why Should We Care? ................................. 122 R III. TYPES OF AQUACULTURE SYSTEMS AND WELFARE CONCERNS .............................................. 125 R A. Types of Aquaculture Systems .......................... 125 R B. Pre-Slaughter Transport and Other Preparations ........ 126 R C. Slaughter ............................................. 127 R IV. CURRENT LAWS AND PROPOSED LEGISLATION ........ 128 R A. The Twenty-Eight Hour Law ........................... 128 R B. Proposed Legislation to Protect Fish Welfare during Transport: The Humane Transport of Fish Act........... 130 R * © Kelly Levenda 2013. Kelly Levenda is an Animal Law Program Fellow at the Animal Legal Defense Fund. She has a Bachelor’s Degree in Animal Science with a concentration in Biotechnology and Pre-Veterinary Science and is a graduate of Lewis & Clark Law School. [119] \\jciprod01\productn\L\LCA\20-1\LCA106.txt unknown Seq: 2 10-FEB-14 15:31 120 ANIMAL LAW [Vol. 20:119 1. Purpose ........................................... 130 R 2. Scope ............................................. 130 R 3. Responsibilities .................................... 131 R 4. Competence ........................................ 131 R 5. Transport Planning ................................ 132 R 6. Loading, Transporting, and Unloading the Fish ...... 133 R C. The Humane Methods of Slaughter Act ................. 133 R D. Proposed Legislation and Regulations to Protect Fish Welfare during Slaughter .............................. 136 R 1. Amendment to the “Humane Methods” Section of the HMSA ............................................ 136 R 2. Regulations on Humane Slaughter Methods .......... 137 R a. Percussive Stunning ............................ 137 R b. Spiking ........................................ 138 R c. Shooting with a Free Bullet ..................... 138 R d. Electrical Stunning ............................. 138 R 3. Regulation on Equipment and Personnel ............. 139 R 4. Regulation on Inhumane Slaughter Methods ......... 139 R 5. Regulation on Stunning ............................ 139 R 6. Regulation on Holding Facilities .................... 140 R 7. Regulation on Handling ............................ 140 R V. CONSIDERATIONS ...................................... 141 R VI. CONCLUSION ........................................... 144 R I. INTRODUCTION Within the growing field of animal law, fish are marginalized, es- pecially with regard to protections for animals slaughtered for human consumption. Although fish are subjected to inhumane slaughter, poor living conditions, and cruelty like many land animals, their welfare is not a topic often discussed. Without protections or discussion in the legal community about fish welfare, they will continue to suffer greatly. This Article seeks to provide an overview of the treatment of farm-raised fish, noting welfare concerns, and suggesting legislation to improve fish welfare. The focus will be on two stages in the lives of fish: treatment during transport and slaughter. II. OVERVIEW A. Global Overview Official statistics on the amount of fish caught each year are not available.1 The Food and Agriculture Organization (FAO) of the United Nations gives statistics of farmed and wild-caught fish in ton- nages, but does not give the mean weights of fish caught, making it difficult to calculate the total annual yield.2 A 2010 Fish Count Report 1 Alison Mood, fishcount.org.uk, Worse Things Happen at Sea: The Welfare of Wild- Caught Fish 70 (2010) (available at http://www.fishcount.org.uk/published/standard/ fishcountfullrptSR.pdf [http://perma.cc/0AgLVKUXWi6] (accessed Nov. 16, 2013)). 2 Id.; see Food & Agric. Org. of the U.N., Fisheries & Aquaculture Dept., Fishery Statistical Collections, Global Production: Structure, http://www.fao.org/fishery/statis \\jciprod01\productn\L\LCA\20-1\LCA106.txt unknown Seq: 3 10-FEB-14 15:31 2013] LEGISLATION TO PROTECT THE WELFARE OF FISH 121 calculated the number of fish caught globally each year to be between 0.97 and 2.7 trillion.3 This number includes shellfish, which are not discussed in this Article.4 The majority of fish caught are Peruvian an- chovy, skipjack tuna, Atlantic herring, Alaska pollock, and chub mack- erel, meaning that a large portion of the total number of fish caught are finfish.5 This estimate does not include the number of fish raised in farms, caught illegally, or caught as bycatch and discarded.6 It also does not include fish that escape from nets and die, fish caught acci- dentally by lost gears, fish caught for use as bait or feed, or any other unreported capture.7 The estimated number of farm-raised fish killed globally each year is between 10 billion and 100 billion.8 Overall, the total number of wild-caught fish and farm-raised fish is in the order of a trillion.9 Because of the sheer staggering number of fish caught or farm raised each year, their suffering is a major animal welfare concern.10 The uses for fish and fish products are wide ranging. Most fishery production—which includes farm-raised and wild-caught fish—is used for human consumption.11 About half of this is in the form of live and fresh fish.12 Some of the remaining fish are used in products such as fish oil, protein supplements, or gelatin.13 The byproducts are used for non-food products, such as fishmeal.14 These products are used in pet food or feed for farmed fish or other livestock.15 This Article will focus on farm-raised fish: fish farming, also known as aquaculture, is one of the fastest growing sectors of animal- based food products.16 Over the next decade, aquaculture output is ex- pected to rise by 33%, whereas wild-caught fishery capture is only ex- tics/global-production/3/en [http://perma.cc/0Fahh5bRgPe] (accessed Nov. 16, 2013) (ex- plaining that “[w]eight is measured in tonnes (generally in tonnes of live weight equivalent for aquatic animals, in wet weight for aquatic plants)”). 3 Mood, supra n. 1, at 72. 4 This Article will only speak to finfish (fish with fins). 5 Food & Agric. Org. of the U.N., Fisheries & Aquaculture Dept., Overview: Major Trends and Issues xvi (available at ftp://ftp.fao.org/FI/STAT/summary/YB_Overview.pdf (accessed Nov. 16, 2013)) [hereinafter FAO, Overview]. 6 Mood, supra n. 1, at 71. 7 Id. 8 Id. at 11. 9 Id. at 72. 10 Id. 11 FAO, Overview, supra n. 5, at xvii. 12 Id. 13 Natl. Oceanic & Atmospheric Administration, Feeds for Aquaculture, http://www .nmfs.noaa.gov/aquaculture/faqs/faq_feeds.html [http://perma.cc/05NHnnB2tXv] (ac- cessed Nov. 16, 2013); U.S. Dept. of Agric., Agric. Research Serv., Finding New Uses for Fish Byproducts, 55 Agric. Research Mag. 18, 18–19 (Apr. 2007) (available at http:// www.ars.usda.gov/is/ar/archive/apr07/fish0407.pdf [http://perma.cc/0CdQedttFN1] (ac- cessed Nov. 16, 2013)) [hereinafter NOAA, Feeds for Aquaculture]. 14 FAO, Overview, supra n. 5, at xvii. 15 NOAA, Feeds for Aquaculture, supra, n. 13. 16 Food & Agric. Org. of the U.N, Fisheries & Aquaculture Dept., The State of World Fisheries and Aquaculture 2012 iii (available at http://www.fao.org/docrep/016/i2727e/ \\jciprod01\productn\L\LCA\20-1\LCA106.txt unknown Seq: 4 10-FEB-14 15:31 122 ANIMAL LAW [Vol. 20:119 pected to rise by 3%.17 By 2018, farmed fish are expected to exceed wild-caught fish for human consumption.18 Although the welfare of wild-caught fish should not be discounted, the rapid growth of the aquaculture sector necessitates consideration of the welfare of farm- raised fish. B. U.S. Overview The most common species of fish farmed in the United States (U.S.) are catfish, trout, salmon, tilapia, and hybrid striped bass,19 all
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