Poultry Welfare and Regulation

in the United States

James Dolbeare
 Introduction

In this article, we explore the law concerning the handling and slaughter of poultry in the

United States. At the outset, it is worth noting that the scope of this article extends primarily to

the welfare of the animals themselves, and does not concern those laws intended to protect the

environment, workers, consumers, or the economy, except in those cases where such laws might

also serve to protect or undermine the welfare of these animals.

There are virtually no federal laws regulating the handling and slaughter of poultry. This

lack of regulation appears to be at odds with the will of the American people.1 Studies indicate

that Americans feel poultry slaughter should be regulated by the federal government, but few are

aware of the practices and laws currently in place.2

The lack of regulation with respect to poultry seems inconsistent with the goals and moral

underpinnings of other laws regulating the treatment of animals in the United States. For

instance, both Congress and state legislatures have passed laws intended to mandate humane

methods of slaughter for livestock.3 There appears to be no biological difference between poultry

and other livestock that justifies a lack of regulation with respect to poultry.4 It seems poultry,

perhaps because they rarely have individual relationships with humans, appear to be at the

bottom of the legal hierarchy of slaughter.5 Cockfighting is illegal in every state in the U.S. and

1
Zogby Int’l, Nationwide Views On the Treatment of Farm Animals 6, 9 (Oct. 22, 2003)
2
Id.
3
7 U.S.C. § 1902 (2010).
4
Jeff Welty, Different Endings: Lethal Injection, Animal Euthanasia, Humane Slaughter, and
Unregulated Slaughter, 3 Golden Gate U. Envtl. L.J. 61, 69 (Fall 2009).
5
Id. at 70.
Washington D.C.6 In 2007, Congress passed the Animal Fighting Prohibition Enforcement Act,

which punished the interstate transportation of goods in connection with animal fighting,

including cock fighting.7 These laws clearly reflect an understanding by the state and federal

legislatures that chicken can feel pain and should not be made to suffer unnecessarily.

The federal government has generally been reluctant to regulate the handling and

slaughter of poultry. However, there seems to be a recent trend indicating that the federal

government may become more active in animal welfare issues. Nevertheless, even a federal

prohibition on certain practices will not ensure that they do not take place, and without effective

enforcement, laws will not prevent cruelty to animals. Examples of existing humane slaughter

regulations abound, and animal rights groups have often criticized enforcing agencies for not

performing their duties.8 However, animal welfare advocates may have other avenues for

safeguarding the interests of fowl.

While some state legislatures have undertaken the burden of regulating the handling and

slaughter of poultry, most have not.9 If the federal government fails to step in and regulate the

poultry industry, it is conceivable that each state could institute its own laws protecting the

interests of these animals. Cockfighting, for instance, was made illegal on a state by state basis.10

6
Humane Society of the United States, Ranking of Cockfighting Laws,
http://www.hsus.org/acf/fighting/cockfight/state_cockfighting_laws_ranked.html (last visited
May 10, 2010).
7
Animal Fighting Prohibition Enforcement Act of 2007, Pub. L. 110-22.
8
See Jeff Welty, Humane Slaughter Laws, 70-WTR Law & Contemp. Probs. 175, 195-97
(2007).
9
See Welty, supra note 8 at 191.
10
See Welty, supra note 4 at 73.
Nevertheless, some state laws in this area have proved less than comprehensive in addressing

inhumane treatment of poultry.11

Current Practices

In any discussion on animal welfare, it seems appropriate to begin by discussing current

practices and the reasons underlying calls for change. In this instance, I focus primarily on

chickens, as they account not only for the vast majority of poultry slaughtered in the United

States, but also an overwhelming majority of animals slaughtered in the United States. Chickens

represent over 90% of the animals killed every year in the U.S. Over 9 billion are killed every

year.12

Agribusiness representatives often assert that it is in the economic interest of producers to

protect animal welfare, because unhappy animals are not productive.13 In the case of chicken, this

claim appears to be false. For instance, it is more profitable to favor larger birds and rapid

growth, in spite of increased health problems and mortality rates associated with such practices.14

It is also more efficient to squeeze more birds into a cage, even where this practice lowers the

productivity of each individual bird, because “[c]hickens are cheap, cages are expensive.”15

11
See Welty, supra note 8 at 191 (noting that the California Humane Slaughter Law does not
protect spent laying hens).
12
Id. at 175.
13
Cheryl Leahy & Gaverick Matheny, Farm-Animal Welfare, Legislation, and Trade, 70- WTR
Law & Contemp. Probs. 325, 328 (2007).
14
Id.
15
Id.
 However, internal regulation has become more common in response to consumer

concerns.16 Naturally, voluntary standards raise concerns about “the fox guarding the

henhouse.”17 Thus, third-party certification programs have emerged, and those using the

certification mark are prohibited from using the mark unless they agree to avoid certain

practices.18 In response to criticism by animal welfare groups, the fast food industry has also

pushed poultry producers to adopt more humane standards.19

The treatment chickens receive varies slightly based on their use in the industry.

“Broiler” hens are those raised for the production of meat.20 “Laying” hens, naturally, are those

used for the production of eggs.21 Some chickens are entirely useless to the industry, such as

male chicks.22 Male chicks obviously cannot grow to produce eggs, and do not grow quickly

16
The Pew Commission on Industrial Farm Animal Production, Putting Meat on the Table:
Industrial Farm Animal Production in America, 35
http://www.ncifap.org/bin/e/j/PCIFAPFin.pdf (last visited May 10, 2010).
17
Id.
18
Jessica Braunschweig-Norris, The U.S. Egg Industry – Not All it’s Cracked Up to be for the
Welfare of the Laying Hen: A Comparative Look at United States and European Union Welfare
Laws, 10 Drake J. Agric. L. 511, 530 (Fall 2005).
19
Id.; also see Pew Commission, supra note 16.
20
See generally Leahy & Matheny, supra note 13.
21
See Id.
22
David N. Cassuto, Bred Meat: The Cultural Foundation of the Factory Farm, 70-WTR Law &
Contemp. Probs. 59, 64 (Winter 2007); MercyforAnimals.org,
http://www.mercyforanimals.org/hatchery/ (last visited May 13, 2010).
enough to be useful as broiler chickens.23 Thus, males are disposed of shortly after birth.24 In

some cases, the live chicks are thrown, fully conscious, into a grinding machine.25

Broiler hens have been bred to grow rapidly.26 These animals reach market weight in

about one-third the time such chickens did 50 years ago.27 This rapid growth leads to skeletal,

respiratory, and cardiovascular disease, and chronic hunger.28 One-third to one-half of the birds

suffer from leg deformities.29 Because of these health problems, fast growth has been called “the

single most severe, systematic example of man’s inhumanity to another sentient animal.”30

Both broiler and laying hens typically have a substantial portion of their beaks removed

early in life.31 This procedure is performed with a hot knife.32 There seems to be widespread

consensus that this is a very painful process, but there remains some debate as to whether or not

the procedure is “necessary”.33 Advocates of the procedure maintain that it is necessary to

prevent the chickens from pecking at one another.34 Opponents insist that the procedure would
23
Id.
24
Id.
25
Id.
26
Leahy & Matheny, supra note 13 at 330.
27
Id.
28
Id.
29
Id.
30
Id.
31
Braunschweig, supra note 18 at 522
32
Id.
33
Id.
34
See Id. At 521-22
not be necessary if the chickens were provided adequate living space, but inherent in this

argument seems to be a concession that, under the current model, the chickens would peck at one

another if not for the debeaking process.35

Approximately 95% of laying hens are raised in “battery cages”.36 The space afforded

each hen averages about 67 square inches, smaller than a standard sheet of paper.37 These cages

prevent chickens from exhibiting many natural behaviors, such as dust-bathing, nesting,

perching, or even spreading their wings.38 The chickens spend most of their lives in these cages,

barely able to move. Chickens’ claws often grow around the cage and limbs become stuck

between them, only to be ripped off when the chickens are removed roughly from the cage.39

Laying hens also undergo a process referred to as “forced molting,” whereby food and

water is withheld for several days in order to more rapidly induce egg-laying.40 Animal welfare

advocates object to this procedure not only because of the inherent deprivation of food and

water, but because hens often suffer from conditions such as prolapsed uteruses as a result of

35
Id.
36
Leahy & Matheny, supra note 13 at 330.
37
Humane Society, Cage-Free vs. Battery-Cage Eggs,
http://www.humanesociety.org/issues/confinement_farm/facts/cage-free_vs_battery-cage.html
(last visited May 10, 2010).
38
Leahy & Matheny, supra note 13 at 330.
39
Braunschweig, supra note 18 at 523-24.
40
Id. at 521.
constant forced laying.41 United Egg Producers claim that this practice has been mostly phased

out.42

When laying hens have outlived their usefulness, those that are not slaughtered for meat

are often simply buried alive.43 Others are gassed to death, often with Carbon Dioxide or with

exhaust piped in from a truck.44 Studies indicate that gassing with Carbon Dioxide can create a

feeling of suffocation, whereas gassing with argon may be the most humane method of slaughter

available.45

Male chicks are simply disposed of in the most efficient manner possible. United Egg

Producers has confirmed that more than 200 million male chicks are killed every year in the

U.S.46 Many are simply thrown into waste bins to suffocate or be crushed under the weight of

other chicks.47 Others are simply thrown, alive, into grinding machines.48 A spokesperson for the

41
Pew Commission, supra note 16 at 85.
42
Id.
43
Karen Davis, The Plight of Birds in the Poultry and Egg Industry, (revised 2002)
http://www.upc-online.org/industry/plight.html.
44
Id.
45
Welty, supra note 8 at 182.
46
HuffingtonPost.com, Chicks Being Ground Up Alive Video,
http://www.huffingtonpost.com/2009/09/01/chicks-being-ground-up-al_n_273652.html.
47
Sandra Miller, Grinding Up Live Chicks – “Not as Bad as suffocating them,” (February 2,
2009) http://observers.france24.com/en/content/20090902-grinding-chicks-alive-not-bad-
suffocating-them-hy-line-factory-farm (last visited May 13, 2010); United Poultry Concerns, The
Male Chick of the Egg Industry: He is Treated Like Trash, http://www.upc-
online.org/chickens/chickensbro.html (last visited May 13, 2010).
48
Supra, note 47. http://www.huffingtonpost.com/2009/09/01/chicks-being-ground-up-
al_n_273652.html.
UEP has defended this method as “the most instantaneous way to euthanize chicks.49 He went on

to state that industry members participating in the practice would be happy to provide the chicks

to anyone who had a use for them, but there is simply no market.50

Hens used for meat are typically slaughtered as part of a mostly automated process. After

being removed from their cages, the chickens are shacked upside down by the feet.51 This

process can be painful, as it puts a great deal of stress on the joints and bones.52 Furthermore,

because the chickens have been bred to have very low bone density, they often suffer fractures or

dislocated joints as a result of rough handling.53 These fractures can make shackling and hanging

upside down by the feet extremely painful.54

After shackling, the chickens are dragged through a pool of electrified water intended to

“stun” them.55 There is no consensus as to whether this “stunning” knocks the chickens

unconscious or simply renders them immobile.56 The shock is not intended to kill the birds, as

cardiac arrest would prevent the birds from bleeding out properly.57 It is clear, however, that this

49
Id.
50
Id.
51
Welty, supra note 8 at 180.
52
HumaneSociety.org, An HSUS Report: The Welfare of Animals in the Chicken Industry,
http://www.humanesociety.org/assets/pdfs/farm/welfare_broiler.pdf (last visited May 13, 2010).
53
Id.
54
Id.
55
Welty, supra note 8 at 181.
56
Id.
57
Id.
process also makes the process of plucking the chickens easier.58 Some chickens, either because

of size differences or because they are struggling, manage to miss the pool entirely, and are never

stunned.59

Next, the chickens are taken past a blade designed to sever the carotid arteries and induce

death by exsanguination.60 In some cases, a human cutter cuts the birds’ throats manually.61

Nevertheless, many chickens miss the blade either partially or entirely, and fail to exsanguinate.62

It seems likely that this is a result of inadequate “stunning”, which allows the chickens to

continue struggling.63

Finally, the chickens are taken through a pool of scalding water, designed to prepare them

for plucking and harvesting of the meat.64 However, many chickens, often referred to as “red

skins” because of the color of their skin when they exit the scalding water, fail to exsanguinate

before entering the pool.65 These chickens either boil to death or drown. USDA records from a

recent year indicate that over 3 million chickens (were discovered?) were boiled alive.66 This is

concerning both from a human health and animal welfare perspective. Upon entering scalding

58
Id.
59
Id.
60
Id.
61
Id.
62
Id.
63
Id.
64
Id. at 181.
65
Id. at 181-82.
66
Id. at 181.
water, live chickens will experience extreme pain. This pain will cause them to inhale feces and

bacteria left in the water by hundreds upon thousands of other chickens.67

Animal welfare concerns do not end with the officially sanctioned practices of handling

and slaughter. A great deal of cruelty is inflicted by farm workers, either intentionally or because

of a lack of training.68 One study found that deliberate acts of cruelty were common at one-third

of American slaughterhouses.69 Undercover investigations have revealed workers spitting

tobacco in the eyes and mouths of chickens, kicking and stomping them to death, beating them

against walls, and squeezing them with such force that it caused the chickens to defecate.70

On the other hand, inadequate training and supervision has been identified as one of the

leading causes of inhumane treatment during slaughter.71 There is currently little incentive for

employers to provide training to slaughterhouse workers.72 Turnover for these jobs is high, and

there are no training or certification requirements mandated by law.73 Furthermore, with respect

to poultry, inhumane slaughter is not illegal in most states.74 Federally mandated training or

67
HumaneSociety.org, supra note 52.
68
Welty, supra note 8 at 192.
69
Id.
70
Richard Cowan, Pilgrim’s Pride Probes Poultry Cruelty Charges, (July 20, 2004),
http://newsmine.org/content.php?ol=nature-health/animal-rights/pilgrims-pride-probes-poultry-
cruelty-charges.txt (last visited May 1, 2010).
71
Welty, supra note 8 at 192.
72
Id. at 193.
73
Id.
74
Id. at 191.
certification might give employers and incentive to train slaughterhouse workers and reduce the

amount of accidental inhumane treatment at slaughter plants.

Federal Legislation

Presently, there are only two federal laws regulating the handling and slaughter of farm

animals. First is the 28 hour law, which concerns the transportation of animals on the way to

slaughter. The other is the Humane Methods of Slaughter Act, which, as its name suggests,

regulates the methods of slaughter and handling immediately prior to slaughter.

The 28 hour law requires that, after 28 hours of travel, animals transported by “rail

carrier, express carrier, or common carrier” must be unloaded and fed, watered, and rested for at

least five consecutive hours before resumption of transport.75 However, 95% of all farm animals

are transported via truck.76 Until 2006, the USDA chose not to include trucks as “vehicles” under

the act.77 The USDA has also stated that the 28 Hour Law does not apply to poultry.78

Furthermore, the law has rarely been enforced.79

The Humane Methods of Slaughter Act (“HMSA”) was passed in 1958 to ensure humane

slaughter for livestock.80 There are two methods of slaughter deemed humane under the HMSA.81

The first requires that animals be “rendered insensible to pain by a single blow or gunshot or an

75
Leahy & Matheny, supra note 13 at 335.
76
Id.
77
Id.
78
Id.
79
Id.
80
7 U.S.C. § 1902.
81
Id.
electrical, chemical or other means that is rapid and effective, before being shackled, hoisted,

thrown, cast, or cut”.82 The other, often referred to as the “ritual slaughter exception”, provides

that animals may be slaughtered in accordance with the requirements of any faith whereby

animals suffers loss of consciousness caused by simultaneous severance of both carotid arteries.83

The requirements of the HMSA, however, only apply to “cattle, calves, horses, mules,

sheep, swine, and other livestock.”84 The term “other livestock” is not defined within the

HMSA. Thus, it has fallen to the enforcing agency, the Food Safety and Inspection Service

(“FSIS”), a subdivision within the U.S. Department of Agriculture (“USDA”), to interpret the

HMSA.85 The USDA has not interpreted the term “livestock” to include poultry of any kind, and

has actually stated that there is no federal statute mandating humane handling or slaughter for

poultry.86

Attempts to challenge the USDA’s interpretation of the HMSA have been unsuccessful.87

In 2009, the 9th Circuit addressed a challenge to the USDA’s interpretation of the term “other

livestock.” 88 While the case was dismissed for lack of standing, in effect, the USDA’s choice to

82
Id.
83
See Welty, supra note 8 at 204. (The ritual slaughter method is not actually an exemption from
the requirement that animals be slaughtered humanely, but in fact another method considered
humane under the act).
84
7 U.S.C. § 1902.
85
See Welty, supra note 8 at 198.

Treatment of Live Poultry before Slaughter, 70 Fed. Reg. 56, 624 (Sept. 28, 2005); also see
86

Welty, supra note 8 at 198.

87
Levine v. Vilsack, 587 F. 3d 986 (9th Cir. 2009).
88
Id. at 997.
exclude poultry from the protection of the HMSA was upheld.89 The court rested its holding in

part on the fact that the enforcement provisions of the HMSA were removed in the 1978

amendment.90 In its current form, he HMSA has no enforcement provision: it is enforced through

the Federal Meat Inspection Act (“FMIA”).91 The language of the FMIA does not contain the

term “other livestock,” as does the HMSA.92 Therefore, even if “other livestock” was interpreted

to include poultry, the FMIA would not require the USDA to enforce the HMSA with respect to

poultry.93 Thus, the court held that the plaintiffs had failed to establish the redressability prong

of standing, and dismissed the suit.94

The Levine decision seems to have rested largely on deference to Congressional intent

and the discretion bestowed upon the USDA. Were the term “other livestock” interpreted to

include poultry, the USDA would certainly have the power to enforce the HMSA under the

FMIA if it so chose.95 Since 2005, the USDA has had the power to enforce humane slaughter for

any species it considers “appropriate” under the FMIA.96 Its failure to do so may signify an

89
See Id.
90
See Id.at 989-99.
91
Id. at 989.
92
See Id. at 989-990. (The Federal Meat Inspection Act was amended to include humane
slaughter provisions in 1978, but applies only in the cases of cattle, sheep, swine, goats, horses,
mules, and other equines. In 2005, the list of animals was replaced with the more generic term
“amenable species”, which was defined to include "those species subject to the provisions of this
chapter on the day before November 10, 2005" as well as "any additional species of livestock
that the Secretary considers appropriate.")
93
Id. at 994.
94
Id. at 995.
95
See Id.
96
Id.
unwillingness to take on the task. In any case, the 9th circuit reasoned that it could not predict

whether it was likely that Secretary of the USDA would make the independent decision to accord

poultry “amenable species status,” and that such an assumption would be speculative.97

The USDA’s reluctance to regulate poultry slaughter signifies several potential problems

for animal welfare advocates. First, it indicates that amending the HMSA to include poultry

might not be enough to improve the welfare of these animals. Pursuant to Levine, it seems that

the FMIA would have be amended to specifically include poultry, for the USDA is unlikely to

voluntarily undertake the task of enforcement by deeming chickens or other poultry “appropriate

species.” Second, the USDA does a poor job of enforcing the HMSA as it is.98

In fact, in 2002, Congress passed a resolution simply stating that the HMSA should be

fully enforced. 99 The mere fact that such a resolution was necessary indicates that the USDA is

likely to resist attempts to further expand its responsibilities under the HMSA. Furthermore, it is

unlikely that the USDA even has the resources to properly enforce the HMSA as it is, much less

with the added burden of monitoring poultry slaughter.100 Violations of the HMSA are rampant,

and occur on a daily basis.101

Part of the reason for poor enforcement appears to be that humane slaughter inspection

was simply tacked on to the existing duties of FSIS meat inspectors.102 The primary duty of the

97
Id. at 994-995.
98
See Welty, supra note 8 at 195-97.
99
Id. at 188.
100
Id. at 196.
101
Id.
102
Id. at 194.
FSIS is to ensure that the meat produced is safe for human consumption.103 In trying to avoid

creating another layer of bureaucracy, Congress has effectively asked the FSIS to serve two

masters.104 Inspectors generally work at the end of the slaughter line, inspecting the carcasses and

processed meat.105 Due to the position of inspection stations and the pace of the work, it is often

impossible for inspectors to monitor or even see the slaughter area.106 The inspectors are also

overburdened, and the FSIS has difficulty staffing its service obligations.107

Furthermore, the FSIS tends to try work cooperatively with the industry.108 Enforcing

humane slaughter provisions by stopping the slaughter line may compromise their relationships

with slaughterhouse management.109 Thus, even if Congress was to amend the HMSA and the

FMIA to include poultry, it seems unlikely that the current enforcement mechanisms would yield

a substantial improvement in practice.

This is not to say that the enforcement mechanisms under the FMIA are themselves

inadequate. The FMIA grants inspectors the power to halt production in order to correct

inhumane slaughter, which can give producers an economic incentive to ensure humane

slaughter.110 The FMIA also provides for criminal penalties of up to one year in prison and a

103
Id.
104
See Id. at 194.
105
Id.
106
Id. at 195.
107
Id. at 196.
108
Id. at 197.
109
Id.
110
Id. at 183, 197.
$1,000 fine.111 These penalties might provide a deterrent to violations of the act, if used. The

problem seems to be that prosecutions for inhumane slaughter rarely, if ever, take place.112 The

problem, therefore, appears to be with the enforcing agency, not the penalties themselves.

The Pew Commission has recommended that the government implement a system

similar in structure to that used for laboratory animal welfare.113 Rather than simply earmarking

additional funds to an agency that has proven ineffective, as it did in 2001 and again in 2003,

Congress could more effectively ensure enforcement by creating an agency solely responsible for

enforcing humane slaughter.114 Another, perhaps simpler solution would be to charge the Animal

and Plant Health Inspection Service (“APHIS”), which is responsible for enforcement of the

Animal Welfare Act, with enforcement of the HMSA. APHIS has institutional expertise relevant

to animal welfare inspections and would not face the burden of dual, sometimes conflicting,

goals.115

However, Congress may be reconsidering its stance on animal welfare. Representatives

Diane Watson and Elton Gallegly have introduced the Prevention of Farm Animal Cruelty Act

(“PFAC”), which purports to “promote the well-being of farm animals by requiring Federal

agencies to procure food products derived . . . only from sources that raised . . . animals free

from cruelty and abuse.” The bill, now in committee, provides that Federal agencies may only

111
Id. at 183.
112
Id.
113
The Pew Commission on Industrial Farm Animal Production, Putting Meat on the Table:
Industrial Farm Animal Production in America, http://www.ncifap.org/bin/e/j/PCIFAPFin.pdf
(last visited May 10, 2010).
114
See Welty, supra note 8 at 197.
115
Id.
purchase food derived from “covered” animals raised under conditions that allowed them to

stand up, lie down, turn around freely, and fully extend all limbs.116 Presently, the law only

“covers” pigs during pregnancy, calves raised for veal, or egg-laying hens.117

While the list of animals covered by the PFAC is short, this law could provide for great

improvement in the conditions of laying-hens. While the law only limits the purchase of food by

Federal agencies, this is likely to provide a strong incentive to the industry, as Federal agencies

compose a large portion of the market.118 Moreover, the bill seems to represent a desire to

improve the welfare of farm animals, including chickens, and closely mirrors the language of a

similar bill in California.119 If the PFAC passes, it could pave the way for more progressive

animal welfare legislation, such as a law requiring humane slaughter for poultry.

State Law

State legislatures have shown a greater willingness to regulate poultry handling and

slaughter than the federal government. However, only three states currently specifically require

humane slaughter for poultry: California, New Jersey, and Indiana.120 As of 2006, only six other

states had humane slaughter laws that could arguably include poultry, as they require humane

slaughter for animals used in the preparation of meat or meat products.121

116
Prevention of Farm Animal Cruelty Act, H.R. 4733, 111th Cong. (2010).
117
Id.
118
See Welty, supra note 8 at 186.
119
Cal. Health & Safety Code § 25990 (Effective January 1, 2015).
120
Rebecca F. Wisch, Table of State Humane Slaughter Laws, (2006)
http://www.animallaw.info/articles/ovusstatehumaneslaughtertable.htm.
121
Id.
 California’s Humane Slaughter Law specifically exempts spent laying hens from the

requirement for humane slaughter. Furthermore, many of the practices outlined above, such as

shackling, electrocution, ritual slaughter, and gassing with gases other than argon are legal under

the California humane slaughter act.122 However, the act does include a number of provisions

providing for more humane handling of poultry prior to slaughter, requiring adequate ventilation

to prevent overheating and protection from exposure to adverse weather conditions.123 Perhaps

most progressive of the requirements is that Poultry Meat Inspectors (“PMI”) undergo training.124

Furthermore, owners and managers are required to attend at least one PMI training seminar

under the California statute. This is significant, as a lack of training among both workers and

inspectors has been cited as one of the problems with enforcement under the federal HMSA.125 In

the event of inhumane treatment, inspectors must discontinue slaughter operations until the

problems or deficiencies have been corrected.126

Californians have also enacted Proposition 2, also referred to as the Prevention of Farm

Animal Cruelty Act (“PFACA”), which is similar in scope to the federal PFAC. As of 2015, the

bill requires that egg-laying hens, veal calves, and pregnant sows have adequate room to lie

down, stand, turn around, and fully extend their limbs.127 The bill passed with a 63% majority of

voters in favor.128 Interestingly, the California PFACA provides for criminal penalties in the

122
Cal. Admin. Code tit. 3 § 1245.1-1246.15.
123
Id.
124
Id.
125
See Welty, supra note 8 at 192.
126
Cal. Admin. Code tit. 3 § 1245.1-1246.15.
127
Cal. Health & Safety Code § 25990.
event of a violation. Violation of the California PFACA constitutes a misdeameanor punishable

by a fine of up to $1,000 and imprisonment for up to 180 days.129

Some have suggested that the California PFACA will lead to increased costs and

motivate egg producers to move to other states.130 In fact, a study at the University of California

Agricultural Issues Center indicates that the PFACA will lead to virtually complete elimination

of egg production in California by the time the law goes into effect in 2015.131 Thus, the study

suggests, the law will not affect how eggs are produced, only where eggs are produced.132 If true,

this point does not undermine the need for the law, it simply suggests that regulation should be

implemented on a national level. The study also suggests that relocation of egg producers would

probably not result in a great price increase to consumers.133 Thus, the economic impact of

similar federal legislation would be difficult to predict based solely on the effect of the California

law on the local market.

The study does suggest that a nation-wide ban on cage systems would likely increase the

price of eggs by at least 25%. However, the study itself indicates that the increase in costs to

producers under the new law will likely only be 20%. Furthermore, United Egg Producers

128
UPC-online.org, California Voters Pass Proposition 2 with 63% of the Vote, http://www.upc-
online.org/winter2008/california-voters.html (last visited May 10, 2010).
129
Cal. Health & Safety Code § 25993.
130
Daniel A. Sumner, et al., Economic Effects of Proposed Restrictions on Egg-Laying Hen
Housing in California 6 (July 2008), available at
http://aic.ucdavis.edu/publications/eggs/executivesummaryeggs.pdf (last visited May 10, 2010).
131
Id. at 5.
132
Id. at 6.
133
Id. at 5.
(“UEP”) has been the subject of a criminal investigation134 and is currently facing a civil lawsuit

alleging price-fixing schemes.135 UEP has responded to allegations that it orchestrated a massive

kill-off of hens in order to reduce supply and increase prices by stating that it did so in an effort

to give caged chickens “more room.”136 Even if UEP is being truthful, this tends to undermine

arguments that the higher mortality rates in cage-free systems will necessarily drive up the cost

of production. If the prices are artificially inflated as part of a price fixing scheme, it seems that

an increase in production costs will not necessarily lead to a price increase for consumers, so

long as the price fixing schemes are brought to a halt. In any case, it certainly undermines the

baseline for any economic arguments based on recent figures.

As a final note on the economic effects of Proposition 2 on the California egg market, it

is worth noting that California may enjoy some benefit by becoming a sort of niche market

leader for cage-free eggs.137 It appears that the demand for cage-free and organic eggs increased

in the months leading up to the vote on Proposition 2, while demand for other types of eggs

decreased.138 This may suggest that the information and attention on industry practices tends to

shift demand toward humanely produced goods. 139

134
John R. Wilke, Federal Prosecutors Probe Food-Price Collusion, (September 23, 2008)
http://online.wsj.com/article/SB122213370781365931.html.
135
Racie Cone, New Documents Boos Egg-Price Fixing Lawsuit Claim,
http://abcnews.go.com/Business/wireStory?id=10355677.
136
Id.
137
Donald Lathbury, Prop 2’s Cageless Potential (October 3, 2008)
http://www.camajorityreport.com/index.php?module=articles&func=display&aid=3637&ptid=9.

Lusk, Jayson L. (2010) "The Effect of Proposition 2 on the Demand for Eggs in California,"
138

Journal of Agricultural & Food Industrial Organization: Vol. 8 : Iss. 1, Article 3.

139
Id.
 It is possible that the cost of cage-free eggs could actually decrease as a result of the law,

although the price of eggs in general might increase.140 For instance, in the United States, free-

range meat and eggs are often sold at two to three times the price of conventional cage eggs, but

in well-developed markets with significant competition, prices are not this high.141 Thus, if the

demand for humanely produced goods such as cage-free eggs increases nationwide as it did in

California, and the price of cage-free eggs does in fact decrease, consumers could actually obtain

a net savings.

Moreover, other studies indicate that the increased cost of production would not place a

burden on the industry or consumers.142 Assuming that using more costly production methods,

such as raising free range meat, eggs, and milk would increase production costs by fifty percent,

the average annual increase in per capita spending would be $27.143

Private Suits

Animal welfare advocates have enjoyed some moderate success by pursuing private

lawsuits under consumer protection or false advertising laws. The problem with respect to

private causes of action seems to be that the plaintiff generally must allege that he, not an animal,

has suffered an injury. Courts seem to have approached civil suits based on the inhumane

treatment of farm animals with some skepticism. Furthermore, it appears that defendants must be

engaging in some sort of false claim, deceptive practice, or misleading consumers in order for

the plaintiff’s claim to succeed. Even where there is evidence of some deceptive practice, courts

140
Id.
141
Leahy & Matheny, supra note 13 at 346.
142
Id.
143
Id.
seem reluctant to allow private causes of action where other enforcement mechanisms are

available.144

For example, in Physicians Committee for Responsible Medicine v. Tyson Foods, the

plaintiffs challenged Tyson’s claims that its chicken products were “all natural.”145 Physician’s

Committee alleged that the term “all natural” was false advertising, citing genetic mutations and

unnatural growth rate resulting from selective breeding, vaccinations and medications given to

the chickens, and the use of antibiotics.146 The plaintiffs sought injunctive relief, both in the form

of an order forcing Tyson to cease running the ads and to run corrective advertisements. This

case initially survived dismissal, but was voluntarily dismissed when Tyson filed an affidavit

claiming that they were no longer running the ads and had no intention of doing so in the

future.147 It is unclear whether the court would have been willing to force Tyson to run corrective

advertisements. However, it is clear that the court was at least prepared to consider granting

injunctive relief on the grounds that consumers might have been misled by Tyson’s advertising.

Animal Legal Defense Fund Boston v. Provimi Veal, on the other hand, illustrated some

of the limitations on private causes of action.148 Plaintiffs in that case brought suit under a state

consumer protection statute on two separate grounds: first, that Provimi had failed to disclose to

consumers that its veal had been produced in violation of criminal anti-cruelty laws; second, that

144
Animal Legal Defense Fund v. Provimi Veal, 626 F. Supp. 278 (Dist. Mass. 1986).
145
Physicians Committee for Responsible Medicine v. Tyson Foods, 119 Cal. App. 4th 120, 124
(2004).
146
Id. at 124-25.
147
Sonia S. Waisman, et al., Animal Law: Cases and Materials 341 (3rd ed. 2006).
148
Provimi, 626 F. Supp. at 278.
Provimi had failed to disclose its feeding and medication practices.149 With respect to the state

anti-cruelty laws, the court found that it would simply be inappropriate to allow private parties to

enforce a criminal law by way of a private lawsuit. The court went on to hold that the plaintiffs

claims were preempted by the “comprehensive federal scheme” regulating the labeling,

packaging, and marketing of meat and the use of medicated feeds.

There may be a silver lining for poultry welfare advocates, as poultry handling and

slaughter is not regulated under the FMIA, the HMSA, or any other “comprehensive federal

scheme.”150 Also, few states have laws prohibiting cruel or inhumane handling or slaughter of

poultry.151 Thus, civil suits brought under consumer protection laws might be an effective means

of combating inhumane treatment of poultry. Conversely, the court in Provimi was reluctant to

allow private citizens to enforce a criminal statute in a private lawsuit, it may be even more

skeptical of claims that consumers have a right to know about practices that are not illegal, and

have not been deemed inhumane or cruel by the legislature.

However, in Compassion Over Killing, plaintiff brought suit alleging that the defendants’

use of the “United Egg Producers Certified” mark violated the District of Columbia consumer

protection statute.152 Plaintiffs also brought claims of fraudulent and negligent misrepresentation

and unjust enrichment.153 When the defendants filed for dismissal, the court rejected preemption

149
Id.
150
See generally Welty, supra note 8.
151
Id. at 191.
152
Sonia S. Waisman, et al., Animal Law: Cases and Materials 352-53 (discussing Compassion
Over Killing, Inc., et al. v. Giant of Maryland LLC, et al., Case No. 05-0001077 (D.C. Super.
Ct.)).
153
Id.
arguments and distinguished from ALDF on the grounds that, here, the plaintiffs were not

seeking affirmative labeling requirements.154 It appears, then, that courts may simply be reluctant

to allow private parties to impose affirmative requirements on producers, but will allow plaintiffs

to seek injunctive relief, compensatory damages, and restitution.

In Farm Sanctuary v. Department of Food and Agriculture, plaintiffs sought declaratory

relief on the grounds that the ritual slaughter “exemption” in California’s Humane Slaughter Law

(“HSL”) authorized the inhumane slaughter of poultry, and was therefore inconsistent with the

HSL.155 The court held that the ritualistic slaughter regulation was not inconsistent with the

HSL, because the regulation specifically required that exemptions for ritualistic slaughter be

humane.156 However, the court did include some language that could prove promising to future

animal welfare advocates. The court noted that “Farm Sanctuary and its members might not face

any hardship if we reach the merits of this case.”157 Because the HSL was enacted for the benefit

of animals, the animals were the real parties in interest, and courts should focus on the potential

harm to the beneficiaries of the statute.158 The court went on to point out that, because animals

are uniquely incapable of defending their own interests in court, groups concerned with animal

welfare should be allowed to invoke the aid of courts in enforcing statutes “expressly motivated

by considerations of humaneness toward animals.”159

154
Id.
155
Farm Sanctuary, Inc. v. Department of Food and Agriculture, 63 Cal. App. 4th 495, 499
(1998).
156
Id. at 509.
157
Id. at 503.
158
Id.
159
Id.
 The court considered these factors in assessing the ripeness of the controversy. However,

the implications of applying this reasoning to issues of standing are rather profound. The court’s

reasoning seems to imply that animal welfare groups could bring suits on behalf of animals,

rather than by alleging that the human members of the group suffered an injury. This reflects a

rather radical view expressed by Cass Sunstien, President Obama’s Regulation Czar, that animals

should have rights and be able to enforce those rights in court.160 If adopted, this view could

eliminate the many of the problems with bringing suits under consumer protection laws. For

example, the plaintiffs in ALDF could have brought suit based on the violation of state anti-

cruelty statutes, rather than arguing that the defendants had deceived consumers by failing to

disclose these activities.

Conclusion

At present, the handling and slaughter of poultry in the United States is virtually

unregulated. The few federal laws intended to mandate humane treatment of farm animals have

not been construed to include poultry. However, even if these laws were amended to mandate

humane handling, transport, or slaughter of poultry, the current regulatory scheme is ineffective.

The FSIS has done a poor job of enforcing the HMSA with respect to the animals currently

covered and is already short staffed. The added burden of inspecting an additional 9 billion

animals seems unlikely to lead to greater enforcement of the HMSA.

Nevertheless, federal regulation is likely to be the most effective method of improving

the welfare of poultry in the United States. Few states have enacted legislation mandating

160
Sunstein, Cass R., The Rights of Animals: A Very Short Primer (August 2002). U Chicago
Law & Economics, Olin Working Paper No. 157; U of Chicago, Public Law Research Paper No.
30. Available at http://ssrn.com/abstract=323661 or doi:10.2139/ssrn.32366.1.
humane handling or slaughter of poultry. Producers are likely to flee states mandating humane

treatment for states with no regulations.

There appears to be a consensus that humane methods of raising, handling, and

slaughtering will increase the cost of production.161 However, in a well developed market where

humanely produced goods are not a “niche” market, the increase in cost to consumers is likely to

be modest.162 Furthermore, it appears that Americans, by and large, believe that the federal

government should protect animals from cruelty and abuse.163

Education may be the key to promoting the welfare of poultry in the United States. Most

Americans are simply ignorant of standard farming practices.164 By promoting public awareness

of these practices, animal welfare groups can garner support for favorable legislation. Moreover,

the industry is sensitive to consumer opinions, and is likely to impose more humane practices in

response to public demand.

However, perhaps the most effective way of ensuring humane treatment for poultry

would be for courts to allow animal welfare groups to sue on behalf of animals. As the court

recognized in Farm Sanctuary, animals are truly the intended beneficiaries of animal welfare

statutes.165 Nevertheless, they animals are uniquely incapable of seeking the aid of courts in

enforcing these statutes. If animal welfare statutes are to be anything more than token gestures to

161
Leahy & Matheny, supra note 13 at 346.
162
Id.
163
Id. at 333.
164
Id.
165
Farm Sanctuary, 63 Cal. App. 4th at 499.
ease the human conscience, courts should not require plaintiffs to show that a human suffered

injury before agreeing to enforce the law.