Every day, more evidence emerges about the unparalleled cognitive intelligence and behavioral abilities of octopi. As recently as April 2024, National Geographic aired “Secrets of the Octopus,” James Cameron’s four-part docuseries about the unique capacities of these magnificent sea creatures. In 2020, Netflix released the Academy Award-winning documentary “My Octopus Teacher,” about an unspoken, yet very genuine bond a human formed with an octopus. Science and research repeatedly show us that octopi have the capacity for complex thinking and emotions. And yet, despite the overwhelming breadth of data and studies that affirm the remarkable abilities of octopi, countries seem divided on whether to engage in the cruel and inhumane practice of octopus farming. On one hand, nations such as Spain are letting corporations develop massive octopus farms off the Canary Islands. Alternatively, in sharp contrast, multiple U.S. States are taking a preemptive approach and banning the practice even more one octopus farm is completed in the world.
Spanish Seafood company Nueva Pescanova (“NPN”) is currently building a massive octopus farm along a dock in the Canary Islands. NPN’s anticipate farm will span approximately 567,000 square feet and be located off the Port of Las Palmas on the Gran Canaria Island. NPN announced its plans for the octopus farm a few years ago, and has not yet completed it. Currently, the corporation is still in the process of obtaining mandatory local and regulatory permits, and does not know when its octopus farm will be fully functioned or finished.
NPN’s intended farm will raise octopi in captivity and the corporation will operative its own system for breeding the sea creatures. Raising and breeding any creature in captivity unquestionably raises concerns about cruel and inhumane treatment. However, such concerns are even more pronounced when it comes to octopi because these creatures are apex predators that eat other animals, such as crabs and clams. Hence, feeding octopi means more fishing will be required, which will inevitably compromise sustainability. Similarly, the aquaculture growth particularly of octopi harbingers potential and likely environmental harm. At present, no relevant or applicable legal authority has impeded NPN’s planned farm or legally stopped the company from completing the structure.
State of Washington
Washington passed a law regulating octopus farming in February 2024.
Washington’s law includes express language that establishes limits on octopus farming However, in light of the fact that various types of aquatic plants and animals it covers, it seems that the statute’s main impetus is not the protection of octopi. For example, based on its language, Washington’s recently enacted law applies to “cultured aquatic products.” Instead of focusing solely and entirely on octopi, Washington’s law applies to “cultured aquatic products” generally and including language clarifying that “private sector culture aquatic products do not include octopus” and explicitly stated that a “person may not participate in octopus aquaculture in Washington.”
State of Hawaii
Hawaii’s House of Representatives codified the State’s stance on octopus farming in 2024 House Bill No. 2262 (“Bill 2262”). To date, Bill 2262 has been voted on by Hawaii’s Senate or House of Representatives.
Notably, Bill 2262 concentrates on the farming specifically of octopi. Similarly, the language of Bill 2262 pertains only the farming of octopus, and no other type of aquatic or marine animal.
Hawaii’s octopus farming bill starts off by acknowledging the ethical reasons to ban octopus farming: “The legislature finds that’s the practice of octopus farming has raised ethical concerns due to the advanced cognitive abilities exhibited by these animals. The legislature also finds that octopus farming practices and conditions, including inadequate living conditions and confinement, may subject octopuses to stress, compromise their well- being, and lead to adverse behavioral changes. The absence of guidelines in octopus farming poses risks of exploitation and potential harm to the welfare of these intelligent marine creatures.”
Importantly, Bill 2262 preserves the need to keep conducting research on octopuses, so that humans may continue learning about the cognitive capacities of these creatures. As made clear in the regulation’s text, it would not apply to “wild caught octopuses or octopuses propagated, cultivated, maintained, or harvested only for research purposes.”
State of California
If California’s Assembly Bill No. 3162 (“Bill 3162”) passes, the State’s prohibition on octopus farming will likely reflect the most expansive and far-reaching state regulation of the issue. The Assembly of California approved Bill 3162 on April 22, 2024, and California’s Senate still has to vote on it. Like Hawaii’s bill, California’s Bill 3162 bans octopus farming for the “purpose of human farming.” And similar to the legislature of Hawaii, California’s lawmakers opted to draft a statute that focuses entirely on octopi, and that also explicitly acknowledge the breathtaking capabilities of these creatures.
Bill 3162 expressly begins by describing and enumerating octopuses’ unique emotional and cognitive abilities. At its onset, the regulation states in Section I: “The Legislature finds and declares all of the following:
(a) Octopuses are highly intelligent, curious, problem-solving animals. They are conscious, sentient beings that exhibit cognitive and behavioral complexity, and are capable of experiencing pain, stress, and fear, as well as pleasure, equanimity, and social bonds.
(b) Octopuses have long-term memory and are capable of retaining information and recognizing individual people. The octopus carries out extensive foraging trips and uses landmarks to navigate the course.
(c) Octopuses have a well-developed nervous system, large brains relative to their body size, and a high level of problem-solving ability. They are known for their ability to learn, use tools, and exhibit behaviors that suggest a level of consciousness. Octopuses also display flexibility in their responses to different situations, which is indicative of cognitive complexity.
(d) In a November 2021 London School of Economics analysis of over 300 studies, researchers found that because of the asocial, solitary nature of these creatures, they can become aggressive toward each other when kept in confinement. Octopuses are carnivores, requiring aquatic animal protein in their diets. Thus, farming them will further deplete fish stocks. An octopus’ feed conversion ratio is approximately 3 to 1, so the weight of feed to sustain an octopus is around three times its weight. Nitrogen and phosphorus waste would be a product of octopus octopuses raised in confinement.”
In addition to criminalizing the conduct of octopus farming for the purpose of human consumption, Bill 3162 also prohibits individuals and businesses from “knowingly engaging in the sale in the state of any species of octopus that is the result of aquaculture.” Unlike the legislatures of Washington and Hawaii, only California lawmakers drafted language that explicitly bans the sale of farmed octopuses within the state.
For example, lets say a business operator buys octopus from an octopus farm that is outside of Washington and sells it a Washington-based restaurant. This person would not face any liability in Washington because the State’s recently enacted law only proscribes individuals from participating in octopus farming in Washington.
In contrast, if a business deliberately purchased octopus from an octopus farm outside of California and sold it at a California-based restaurant, the business would be in violation of Bill 3162. Similarly, the business would face criminal liability in California, even though it did not directly engage in any octopus farming within the state.
At this point in time, it is too soon to know if California will face any constitutional challenges to its efforts to regulate the sales of farmed octopi. In light of last year’s Supreme Court decision, National Pork Producers Council v. Ross, 598 U.S. 356 (2023), it is reasonable to predict that Bill 3162 would be upheld as constitutional. National Pork arose of California’s statutory prohibition on the sale of whole pork meat that originated from animals confined in a manner inconsistent with California standards. The Supreme Court held that California’s governance of pork meat sales was constitutional and did not violate the commerce clause because the state law did not purposely discriminate against out-of-state economic interests. Likewise, the Supreme Court held that “absent discrimination, a State may exclude from its territory, or prohibit the sale therein of any articles which, its judgment, fairly exercised, are prejudicial to the interests of its citizens without violating the dormant Commerce Clause.”
With regards to banning octopus farming and the sale of farmed octopus, California’s Bill 3162 appears wholly non-discriminatory. The State bans octopus farming within its borders. Hence, California lawmakers have not displayed any preference for their states own octopus farms in comparison to out-of-state ones. Furthermore, Bill 3162 does not seek “to build up domestic commerce through burdens upon the industry and businesses of other states.” Therefore, based on precedent establishes in National Pork, any future attacks on the constitutionality of Bill 3162 will likely emerge unsuccessful in court.
Even though the legislatures of Hawaii and California have not enacted octopus farming bans as actual laws yet, both states’ proposed bills are laudable for various reasons. First, the fact that both California’s Bill 3162 and Hawaii’s Bill 2122 explicitly acknowledge the mental capacities of octopi is significant. Lawmakers’ efforts to expressly codify the cognitive abilities of octopi is especially important since the Spanish company, Nueva Pescanova, has tried to disseminate false narratives about octopi in a misguided attempt to justify construction of its large-scale octopus farm. As more legislatures and countries draft statutes that recognize the scientific properties and biology of octopi, it will likely be harder for Nueva Pescanova to get away with pushing its slanted money-driven studies and fabricated self- serving data about the sea animals.
Collectively, Washington, California and Hawaii all seem to have adopted a preemptive approach to regulation of octopus farming. To date, no fully operating large-scale octopus farm exists in the world. Several years ago, the Spanish company Nueva Pescanova announced plans to develop an octopus farm in Canary Islands. However, Nueva Pescanova’s farm has not yet been completed nor is it functioning. Nueva Pescanova’s intended octopus farm would be 52,691 square meters (approximately 567,000 square feet) along a dock in the Canary Islands, at the Port of Las Palmas on Gran Canaria Island, with octopuses being kept in facility tanks.
Based on the chronology of events, it appears that the simple threat of a potential octopus farm being erected was sufficient enough danger to motivate California, Washington and Hawaii to implement octopus farming bans. Instead of waiting for Nueva Pescanova to finish construction, or holding off until some manmade octopus farm created real environmental harm, all three states commendably took a preemptive approach. As evidence by the bills they drafted, lawmakers in Hawaii and California especially seemed to account for the biological characteristics of octopi, and understood the foreseeable environmental detriment that would transpire as a consequence of entities trying to farm carnivorous apex predators like octopi. A similar sentiment and preemptive stance are echoed in Washington representative Strom Peterson’s motivation for enacting the state’s ban on octopus farming. In an interview, Mr. Peterson explained that he introduced a bill to protect octopi because “Octopus farming leads to suffering and sickness for one of the more intelligent and feeling animals in our oceans. It can lead to huge environmental and ecological effects as well. Octopus farming is harmful to the animals and the environmental and is unnecessary. It’s to move on.” In sum, while we continue to monitor the effects that the statutes from California, Hawaii and Washington have, it is worthwhile to appreciate the proactive all three states have taken to protect octopi.
