Animal Husbandry Redux: Redefining “Accepted Agricultural Practices” for Locally Sourced Foods

Vol. 28 No. 2

Ms. Vesilind is a visiting assistant professor at the University of Arkansas School of Law and a fellow at the Center for Agriculture and Food Systems at the Vermont Law School.

The local foods movement has advanced beyond the occasional Saturday visit to the farmers market for fresh tomatoes and corn. In record numbers, devotees of locally sourced foods are purchasing eggs, meats, and dairy products from regional farmers. When asked why they prefer buying animal-based foods from local farms, a majority of these consumers mention animal welfare concerns. They expect that animals raised locally are treated more humanely than animals raised in high-density industrial agricultural facilities. This assumption may be correct, but perhaps only to a degree, because institutionalized cruelty still occurs on some small farms. In fact, when animal suffering is the result of an “accepted agricultural practice,” the law has little to say about it.

Advocates of farmed animal reform also have largely overlooked animal husbandry in the local foods context, instead focusing their efforts on eliminating the most restrictive industrial confinement practices. From a percentages perspective, this reform strategy is sound. Yet continuing to ignore small-scale animal agriculture will result in missing an opportunity to revise animal husbandry regulations and cruelty laws from the ground up.

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This essay urges animal advocates to enlist supporters of the local foods movement to promote a new contextual definition of the phrase “accepted agricultural practice” for producing animal-based foods that are marketed and sold locally. Two aspects of this market sector make it ripe for legal and ideological reform: (1) its sales and marketing channels encourage transparency and communications between consumers and producers and (2) its consumers are “early adopters,” with well-established expectations and values and with an enthusiasm for advocacy.

But these local foods enthusiasts lack the critical knowledge that they may be misplacing their faith and food dollars. They need to know more about husbandry practices at the regional level and that most state and municipal animal cruelty laws condone or disregard unnecessary suffering by farmed animals. Armed with this knowledge, consumers can influence the local marketplace by rewarding farmers who have adopted humane standards. At the same time, legal reformers can promote the adoption of a contextual analysis of animal husbandry practices that reflects local standards, not industrial standards.

Although the local foods market sector represents a slim fraction of national food retail sales, its reach has consistently expanded over the last two decades, and the United States Department of Agriculture’s (USDA’s) 2012 Census of Agriculture is expected to reflect accelerated growth since 2008. Regional grocery chains are also embracing this trend, and the National Restaurant Association reports that locally produced meat has been a “top trend” for the last several seasons.

The distribution models used in the local foods sector make it especially suitable for ideological and legal reform. Producers on small farms (defined by the USDA as those earning less than $50,000 a year) use two primary regional channels: the direct farm marketing channel and the intermediary marketing channel. In the direct channel, farmers take their products to the consumers by way of farmers markets, roadside stands, or community-supported agriculture clubs. Intermediary channels add a “middleman” business entity, such as a restaurant, food cooperative, or grocery store, to connect farmers with consumers. Intermediate channels are increasingly profitable, and most small farms enlist a dual-channel sales strategy.

Both channels thrive on open communications between producers and customers, and also among consumers and potential consumers. Direct farm marketing brings farmers face-to-face with their customer base. With intermediary marketing, restaurants and grocery stores that buy and sell local products often pass along their customers’ feedback. Because they operate with narrow profit margins, small quantities of goods, and limited marketing resources, these meat, eggs, and dairy farmers need to understand their consumers’ preferences and values if they hope to distinguish their products from local competitors’ products. Consumer preferences about production practices, especially animal welfare standards, are highly influential.

Committed consumers of locally produced animal-based products possess many of the attributes of the “early adopter” consumers Geoffrey Moore described in his widely regarded technology marketing guide Crossing the Chasm: Marketing and Selling Disruptive Products to Mainstream Customers. Early adopters are not merely financially invested; they are philosophically interested in the success of a farmer whose practices reflect their values. Unlike consumers of conventionally produced meats and dairy products, consumers in regional food channels are likely to view themselves as part of an alternative agriculture paradigm.

Also like Moore’s early adopters, these consumers frequently communicate with each other and with prospective consumers of humanely produced animal products. And this pool of prospective consumers is expanding. Results of recent surveys conducted by Ohio State University, Oklahoma State University, and Consumer Reports suggest that, increasingly, Americans are concerned about the conditions of animals raised for food. Thus, a word-of-mouth recommendation from a loyal customer can be a farmer’s most effective—and least expensive—advertisement, and a reputation for practicing responsible, ethical animal husbandry a valuable market differentiator.

Local food enthusiasts know enough about industrial animal production to reject, or at least disapprove of, eggs, meat, and dairy products from confined animal feeding operations (CAFOs). Some consumers also know that the federal government has declined to regulate the breeding, confining, feeding, medicating, transporting, and slaughtering of most farmed animals and that only a handful of states have banned confinement devices like gestation crates for breeding sows, battery cages for laying hens, and veal calf crates.

However, few small farms selling through direct or intermediary channels use industrial confinement techniques, so consumers also need to understand how their state and local animal cruelty laws regard animals on small farms. If these early adopters are unaware of what passes for “acceptable” animal management practices under most local animal cruelty laws, they may unintentionally support the very conditions they seek to discourage.

Exempting the “Accepted”

Most state animal cruelty laws provide an affirmative defense to liability if an allegedly cruel act can be described as an accepted agricultural practice. Examples of this exemption language are: “[g]enerally accepted animal husbandry practices” (Arkansas); “[n]ormal or accepted practices” (Idaho); and ”normally accepted [farm animal] husbandry practices” (Wisconsin). See Ark. Code Ann. § 5-62-105(a)(5); Idaho Code § 25-3514(5); Wis. Stat. § 951.14. If a defendant agricultural producer cannot prove that the alleged cruelty occurred in the course of an “accepted” practice, only then will he or she be criminally liable.

A prominent example of nonexempted cruelty occurred at a large-scale egg production facility in 2009. Employees were videotaped mutilating and killing sick and injured hens and failing to provide water and food to overcrowded hens. The Maine animal cruelty law’s exemption—for animals “kept as part of an agricultural operation and in compliance with best management practices for animal husbandry as determined by the [D]epartment [of Agriculture, Food and Rural Resources]”—was deemed inapplicable, leading the producer to plead guilty to multiple counts of animal cruelty. Me. Rev. Stat. Ann. tit. 7, § 4011(2)(D); tit. 17, § 1031(2)(D).

The inherent problem with these statutory exemptions is that standards of acceptability are established by the industry stakeholders most invested in maintaining the status quo. As a practical matter, an agricultural method or device is “accepted” if enough producers endorse it. (It is presumed that consumers find the practice acceptable.) Although some statutes attempt to clarify the analysis, the guidance can be aggravatingly contradictory. Vermont’s animal cruelty law, for example, exempts husbandry practices that are “recommended for the species by agricultural colleges and the [USDA Extension Service,] modified for the species to conform to the Vermont environment and terrain[, and designed to] minimize pain and suffering.”

In a small minority of states, such as Iowa, New Hampshire, and Ohio, animal cruelty statutes exempt farmed animals altogether. If an allegedly abused animal is of a species classified as “agricultural,” the defendant has a complete defense to cruelty charges. At a minimum, husbandry reform in these states requires adopting the more common agricultural exemption.

Distinguishing Contexts

Statutory qualifiers like “accepted” or “normal” are defined contextually. Wisconsin’s animal cruelty law recognizes a geographical context whereby determining whether a husbandry practice is “normally accepted” requires looking to “the particular county where the animal . . . is located.” Thus a husbandry practice could be defensible in one county, but not in another.

Why, then, not a market-based context? The foundation for this distinction is expressed by consumers preferring locally produced meat, eggs, and dairy products over those produced “conventionally.” Consider the confinement methods used in an industrial dairy that produces milk for national distribution versus methods used by a small, regional dairy that sells milk and cheese at the farmers market. According to the USDA industry survey Dairy 2007, over 80 percent of lactating cows are confined indoors, with half of them confined in tie stalls (tethered in place). Larger dairies were least likely to provide outdoor grazing time. This is the “accepted” practice.

A local dairy farmer, on the other hand, might graze her cows outdoors, in a pasture, in plain sight of the community. Perhaps she has even been certified as Animal Welfare Approved (AWA), under the most restrictive major third-party certification program. If customers who buy her milk and cheese products do so in part because they oppose the CAFO production methods described above, they can be said to have found those industry standards “unacceptable.” If enough local dairies, however small they may be, also distinguish their husbandry standards from industrial confinement practices, there emerges a regional husbandry standard that differs markedly from national husbandry standards. Therefore, the state animal cruelty law should reflect this contextual distinction in its agricultural exemption.

Continuing with the dairy example, consider “tail docking,” the practice of clamping or severing the tail with no anesthesia. Supporters of this practice claim that removing the tail keeps the cow’s back-end clean. Critics challenge this as an unsupportable claim and argue that it leaves the cow unable to shoo flies away. Although several states have prohibited tail docking and the American Veterinary Medicine Association no longer endorses it, it is still an “accepted” practice in most areas.

Our local dairy farmer will be held to local animal husbandry standards for accepted practices because she brands and sells her milk locally. If she docks her cows’ tails, she may be criminally liable for animal cruelty. The “accepted agricultural practices” defense may or may not be available to her, depending on how the community, including both producers and consumers, interpret and apply their values and preferences.

Farmed Animal Welfare Considerations

This section offers some common farmed animal practices worth considering in the course of establishing higher standards for the term “accepted agricultural practices.” The recommendations are drawn, in part, from standards adopted for the Animal Welfare Institute’s AWA program. The AWA logo is frequently displayed by farmers market vendors of animal-based foods.

Battery cage confinement is considered one of most inhumane agricultural practices, and many large egg producers in the United States still house small groups of laying hens in cages that limit each hen to only 67 square inches of space in which to live (a space roughly equivalent to that of a shoebox). Although most locally sourced eggs are not produced using battery cages, cage-free systems promise only the absence of cages but do not ensure adequate space. The overriding welfare consideration, however large or small the flock, is population density. Lack of adequate space causes severe anxiety, bullying, and cannibalistic behaviors among chickens. A recently published research survey, Animal Welfare as Related to Egg Production Systems, noted a higher incidence of broken bones and poorer air quality in cage-free houses.

Husbandry standards accepted in the local foods sector should base allowable flock size on inside and outside space dimensions. Perches and nesting boxes must provide hens the privacy and quiet they prefer for laying. The outdoor area must be large enough to accommodate other instinctive behaviors. Unfortunately, too many “backyard chicken” enthusiasts fail to meet this need by choosing inexpensive coop kits with inadequately small outdoor pens.

Acceptable husbandry standards for locally sourced eggs might also address how laying hens are bred and transported. Many small egg farmers and feed stores purchase pullets (female laying hens) from industrial hatcheries. In pullet hatcheries, male chicks are the unnecessary and unlucky by-products of breeding. The accepted practice is to discard live male chicks in large bins and pulverize them for use in animal feed. The days-old chicks identified as females are often shipped to purchasers via airmail with no food or water. Not unexpectedly, some chicks do not survive the journey. Regional egg producers held to higher animal welfare standards will increase demand for reasonable access to alternative hatcheries.

Finally, the process for sexing chicks is imperfect. First-time owners of backyard chickens may be ignorant of a rooster’s gender until his first croaky attempt to crow. In municipalities with zoning ordinances that allow hens—but prohibit roosters—animal shelters have been overrun with abandoned and surrendered roosters. Abandonment of a domesticated dog or cat is illegal in every jurisdiction. This proscription should be expanded to include chickens and roosters.

Like humans and other mammals, cows lactate as a function of reproduction. In both conventional dairies and most smaller dairies, heifers are impregnated every twelve to fifteen months and milked throughout the year, except for a couple months prior to delivery. Under standard practices, calves are weaned within a few days of birth so the heifer’s milk can go to commercial use. This means separating the heifer and her young calf, even though conventionally managed dairy cattle produce many times more milk than a calf requires.

Female calves will become dairy heifers, but like the male chicks discussed above, bull calves are unnecessary for production. Some newborn calves are trucked to “bob veal” operations, where they are slaughtered within a few days or a week. Most bull calves are trucked to livestock auction, where they are purchased and then trucked to a veal facility. To prevent muscle development, the calves are physically restricted either in veal crates or in group pens (veal crates have been banned in six states). When they are between sixteen and eighteen weeks old, they board one last truck, to a slaughter and processing plant.

The dairy industry and veal industry are inseparable. Consumers who avoid veal because they equate it with animal suffering unintentionally perpetuate the cycle when they purchase conventional dairy products. Dairy products bearing the AWA label, or those produced under similarly high standards, mitigate the worst aspects of the veal industry with raised standards for the weaning process, transportation, confinement, and slaughter. For example, bull calves must be sold directly to a veal producer, bypassing the auction process. The veal producer must also be AWA certified, using humane confinement and slaughter practices.

These practices should be the “accepted” standard for locally sourced dairy and veal products. Local governments should also support alternative production models, like the “humanely raised veal” model adopted by several boutique dairies in Vermont. Rather than sell their bull calves for veal production, they raise them with the herds in the pasture. They market the veal to high-end restaurants, yielding $300 per calf.

Locally-produced meats can be a more humane choice depending on factors affecting the animals, such as climate, shelter conditions, and the amount of time outdoors to exercise and engage naturally with others of their species. Often overlooked, however, are the circumstances surrounding slaughter, especially how and where the animal is slaughtered.

Decades of consolidation in the meatpacking industry have left small-scale producers struggling to find adequate—much less humane—facilities to slaughter their animals and process the carcasses. Between 1992 and 2008, one-third of the slaughterhouses serving small producers closed or were subsumed by larger companies. Today, low-volume slaughterhouses are in such demand that some farmers reserve space before their livestock are even born. Slaughterhouses meeting AWA standards are even scarcer. Too many small farmers are forced to subject their animals to the stresses of long-distance travel, making them vulnerable to injury and sickness. To help local producers, some states have launched programs to establish more mobile slaughtering units and permanently sited custom slaughterhouses. These efforts also alleviate pressures giving rise to black market “slaughter farms,” where animal slaughter and food handling are entirely unregulated.

Compounding the problem, existing slaughter regulations are inadequate. Regulations under the federal Humane Methods of Slaughter Act (Act) are widely criticized as outdated and overly permissive, despite the Act’s directive that livestock animals be stunned unconscious prior to being slaughtered and bled. Moreover, the Act does not extend to poultry birds, so processing facilities are under no legal obligation to minimize pain for over 95 percent of the almost 10 billion animals slaughtered for food annually.

Also exempt from federal livestock slaughter regulations are two meat processing categories designated as “custom exempt” by the Federal Meat Inspection Act: (1) meat from livestock slaughtered for personal use and (2) meat from livestock purchased by consumers “on the hoof.” The second exemption is a popular regulatory loophole in the local foods sector. Rather than purchase meats packaged for sale at the farmers market, consumers purchase a whole, or partial, live animal. They never take physical possession of their livestock animal, but later receive meat bearing a “not for sale” label.

Unless a slaughterhouse is in one of the minority of states to have extended federal livestock slaughter requirements to “custom exempt” facilities, the slaughterhouse is not legally required to stun cows, pigs, and sheep before slaughtering them. Unnecessarily cruel slaughter practices, whether by professional processors or amateur farmers in their backyards, will be chargeable as animal cruelty only under state laws that compare the act with accepted practices.

Local standards for humane slaughter should extend to chickens and other poultry, and they should require species-appropriate stunning techniques to mitigate anxiety and the risk of conscious slaughter. On-site or nearby slaughter should be preferred. Practitioners of domestic-use slaughter should be trained and required to obtain a permit.

Starting Small

The institutionalization of animal cruelty in conventional agriculture is endemic and backed by powerful stakeholders. Nevertheless, even unsuccessful attempts at federal and state legislative reform have served a critical role in the local foods movement, by shedding light on the cruelties of industrial confinement and slaughter. The early adopters of the local foods movement—the consumers who reject conventional practices in favor of humanely produced local meats, eggs, and dairy products—should be enlisted to support reform at the local level.

This can be accomplished in various forums. Advocates could encourage farmers markets to adopt humane husbandry requirements of their vendors. California Bay Area markets, for example, recently banned the sale of live chickens, based on evidence that many of the chickens were “spent” laying hens from nearby industrial farms. A more strategic approach, and one that would have encouraged humane husbandry practices, would have been to restrict vendors on an individual basis, allowing producers who raise and transport chickens humanely to continue participating in the market.

Advocates could also participate in local zoning hearings. When a zoning board considers “amateur farming” regulations, such as increasing the number of laying hens a property owner may possess in a residential zone, that ordinance should incorporate animal welfare standards, such as minimum coop space requirements. The ordinance may also define allowable slaughter methods and contemplate a humane and practical way to address the inevitable “accidental” rooster problem.

The incremental reform efforts proposed here would give voice and coherence to values that early adopters already possess. Importantly, they should also embrace and reward farmers employing humane husbandry methods, not alienate and condemn them. Enlisting their input has the added benefit of creating credible, practical, and verifiable standards, unlike the so-called humane standards accepted by the industry-sponsored American Humane Certified labeling program. Most importantly, these reform efforts will be truly local, reflecting what many of us already consider morally “acceptable,” whether in our own backyard or in the next town over.

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