Meatonomics (8 page)

The animal food industry is just one of many special interests to capitalize on this massive change in spending and influence, but it stands out because its efforts have been particularly successful. Most significantly, costly legal restrictions that once applied to its production units—farm animals—have been largely swept aside. Today, at both the state and federal level, legal protection for farm animals is scant, poorly enforced, and largely irrelevant. To put it bluntly, farm animals “have no legal protection at all,” according to David Wolfson and Mariann Sullivan, lawyers who have explored the issue in an article titled “Foxes in the Hen House.” “As far as the law is concerned,” wrote Wolfson and Sullivan, farm animals “simply do not exist.”
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If this development surprises you as much as it did me, you may wonder, as I did, what it means and how it happened. The answer
starts with one of the fundamental principles of lawmaking—the quid pro quo, or this for that, that pervades the American legislative process at both the state and federal levels. While a legislator's express agreement to sell a vote is illegal, it's completely legal to vote for a measure just because a donor likes it. It's a subtle—and for most critics, frustrating—distinction.

Jesse “Big Daddy” Unruh, the late speaker of the California Assembly and a larger-than-life character, was outspoken on the issue of lobbying and influence. “If you can't drink a lobbyist's whiskey, take his money, sleep with his women, and still vote against him in the morning,” said Unruh, “you don't belong in politics.” (Big Daddy was clearly a man of principle!) But despite such admonitions, and perhaps even acting with the best of intentions, legislators often respond to contributions by doing what the donors want. It's basic human nature—people have a hard time accepting a gift and not reciprocating. In one study of this phenomenon, those who received a can of Coca-Cola as a gift purchased twice as many raffle tickets from the donor as those who got no gift.
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Similarly, research regularly finds that donations to lawmakers make it more likely their votes will support the donor's interests.
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In one example, members of the House of Representatives who received money from the dairy industry were almost twice as likely to vote for dairy price supports as those who received no money. Even more telling, the greater the amount of dairy money a member got, the more likely her support for the legislation.
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While some might argue that contributors just seek out like-minded legislators, another study of how Congressional lawmakers respond to cash gifts suggests it's really the money that talks. The report found that, in fact, “changes in contribution levels determine changes in . . . voting behavior.”
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But it's not just a desire to reciprocate that's at play—there's also a basic drive for self-preservation. As we've seen, it costs real money to get elected. Those who violate the principle of quid pro quo are likely to see their donors turn elsewhere, and that could make it hard to
stay in office. Marion Nestle, whose book
Food Politics
explores the food industry's influence over lawmakers and regulators, writes of this economic pressure:

Given the costs of election campaigns, the lack of public funding for them, and the resistance of Congress to reform campaign finance laws, it is no mystery why legislators might not want to make decisions that displease . . . contributors.
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From the donors' perspective, the investment bounty from well-placed gifts can be substantial. One study found that in connection with federal subsidy legislation, a $1 industry donation typically yields a $2,000 return in the form of subsidy payments.
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It's a rate of return so high, most businesspeople would say it's impossible. So is it any wonder the animal food industry spends more than $100 million yearly paying lobbyists and making strategic donations?
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A look at the industry's dozens of legislative victories in recent decades shows that this spending is yielding more than just robust subsidies. It's also paying back animal food producers in the form of valuable laws that protect and insulate industry players and lower their costs of doing business.

Consider the two possible sources of legal protection for farm animals: published cases forming centuries of common law and statutes passed by Congress or state legislatures.
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First, a little history primer. Under the common law
free men
had legal protection from physical abuse, but women, slaves, indentured servants, and animals were mere property and could be beaten or abused as necessary to “correct” them. In one example of the common law's treatment of such items of property, a North Carolina court in 1868 declined to punish a man who beat his wife with “a switch about the size of one of his fingers.” Applying the so-called Rule of Thumb, the trial judge held that because the switch was smaller than the man's thumb, the beating was lawful. The appellate court declined to apply
the Rule of Thumb but upheld the decision on different grounds, refusing to punish the victim's husband “for moderate correction of her, even if there had been no provocation for it.”
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Needless to say, this isn't the kind of ruling that gives judges a good name.

Farm animals have served as monetary currency for millennia, and in some countries still do. In fact, the word
cattle
and the related term
chattel
(personal property) both have their roots in
capitale
, Latin for “wealth.” Because the common law saw animals as mere property, it prohibited abuse by third parties that might hurt their economic value but did not punish abuse on the grounds that it was cruel. “The common law recognized no rights in . . . animals,” observed a Mississippi court in the 19th century, “and punished no cruelty to them.”
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Accordingly, our inquiry into farm animals' legal protection must turn from law created by judicial interpretation to those statutes passed by legislators.

Dick Martin, a colorful lawyer elected in 1776 at age twenty-two to the Irish Parliament and later to the British Parliament, was known as much for his odd antics as for his animal advocacy. He is said to have survived two shipwrecks and over a hundred duels. In one typically dramatic episode, he won a judgment of £10,000 against his wife's lover and then threw the cash from a coach window as he drove through London. If Dos Equis was promoting the Most Interesting Man in the World back then, Martin might have been a candidate.

Martin was also one of the first to respond to the common law's failure to address animal cruelty. He helped found the first Society for Prevention of Cruelty to Animals (now with “Royal” before its name and an annual budget of $200 million). Sometimes called “Hairtrigger Dick” for his dueling activities, and sometimes “Humanity Dick” for his love of animals, he drew inspiration from both pursuits with the remark, “Sir, an ox cannot hold a pistol.”

Martin was ridiculed in the press for his animal advocacy and caricatured in drawings that showed him with a donkey's ears. Nevertheless, he authored the most important animal cruelty statute of his
time: the Cruel and Improper Treatment of Cattle Act of 1822 (also known as Martin's Act). The act made it a crime to “cruelly beat, abuse or ill-treat” any horse, mule, ox, sheep, or cattle, and it was the first in a wave of anticruelty legislation in Britain and the United States that continued through the 19th century.

In fact, the stated purpose of early anticruelty legislation was to criminalize the abuse of farm animals.
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Over the course of the 19th century, the scope of legislative anticruelty protection grew wider and expanded beyond farm animals. In 1865, Vermont adopted anticruelty legislation applicable not only to livestock but also to “other animals,” and in 1867 New York passed an anticruelty statute that applied to “any living creature.”

Legislatively, things started looking good for farm animals after the Civil War. But plot on a graph the level of legislative protection enjoyed by farm animals over the last several millennia, and you'd see a distorted bell curve, sort of like a brontosaurus, very skinny at the left end, peaking in the late 19th century, and declining to roughly zero today. In other words, legislation prohibiting cruelty to farm animals reached a high-water mark in the late 1800s and early 1900s, began declining, and is now almost nonexistent. While legislation safeguarding so many other disenfranchised and exploited groups—children, women, workers, minorities, the disabled, and the elderly—has improved over the last century, how did farm animals come to lose the little legislative protection they once had?

Every US state has a statute prohibiting cruelty to animals. But in response to industry lobbying, most states have adopted an exception to their anticruelty statutes for farm animals. Legal commentators Wolfson and Sullivan, who in 2004 noted the rise of these exceptions, termed them “Customary Farming Exemptions,” or CFEs. Connecticut, for example, an early anticruelty pioneer, passed legislation prohibiting cruelty to “any animal” in 1854. But 142 years later, the Nutmeg State exempted all farm animals from the law's protection by adopting a CFE that made “maliciously and intentionally maiming,
mutilating, torturing, wounding, or killing an animal” lawful, provided the act is done “while following generally accepted agricultural practices.”
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Three-quarters of US states have some form of CFE, and most of those exemptions were adopted in the past few decades.
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Customary farming exemptions essentially remove from lawmakers the authority to decide what constitutes cruelty to farm animals, instead turning that decision over to the farmers themselves. For example, if one farmer decides it would be expedient to chop off all or part of an unanesthetized animal's body part, like an ear, tail, beak, or genitals, and others in the industry follow suit, that procedure becomes customary and protected as a CFE. Thereafter, those who engage in what would otherwise be criminal animal cruelty are exempt from prosecution. As politician and diplomat Andrew Young wryly noted, “Nothing is illegal if one hundred businessmen decide to do it.”

A few of the many common farming practices now deemed lawful under most states' anticruelty statutes include:

• Crushing or severing the testicles of unanesthetized animals.
  
• Slaughtering chickens while they are awake and alert.
  
• Killing unwanted male chicks or spent laying hens by suffocation, starvation, or disposal in a garbage can or wood chipper.
  

These practices are not driven by a sadistic urge to be cruel but by a desire to minimize costs. Meat producers prefer to keep their animals alive until they're ready for slaughter, but from a purely economic perspective, it doesn't pay to worry about an animal's pain or suffering in the meantime. It would cost about $0.25 to anesthetize an animal before castrating him.
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But unless legislatively mandated, the cost of such humane measures to any producer choosing to adopt them would mean lower profits and a loss of competitiveness. As the National Pork Board explained in its 2003 Swine Care Handbook, “Consumers must not expect individual farmers to undertake practices that will make them uncompetitive in the marketplace. Livestock producers will do what is necessary to compete, or else they will not be livestock producers for very long.”
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A number of countries have outlawed many of these so-called common farming practices. The European Union has banned battery cages, veal crates, gestation crates, and the slaughter of conscious poultry. California has also banned (with effect in 2015) some of these practices, and a few other states have, in part, followed suit. Yet the general rule in the United States is that these practices are not only customary and legal, but also necessary to compete. Because 99 percent of the animals raised for food in this country are grown in factory farms where these practices are commonplace, virtually all of the animal products consumed in the United States come from animals treated in these ways.

By the way, if the way your meat is produced bothers you, you might want to think twice before sharing your opinion too widely (or make sure your opinion is solidly grounded in fact). A growing number of states—thirteen at last count—have laws forbidding “food disparagement.” That's right—if you thought libel and slander cases just featured movie stars suing tabloids for gossiping about their love lives, think again. It's unlawful to defame food in a quarter of US states. On her show in 1996, Oprah Winfrey said of the threat of Mad Cow disease: “It has just stopped me cold from eating another burger! I'm stopped!”
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When Texas cattle ranchers sued her for food disparagement, seeking $12 million in damages, she prevailed only after spending years in litigation and an estimated $1 million in legal fees.

Even where state anticruelty laws aren't subject to customary farming exemptions, these laws are difficult to enforce for a number of reasons. First, as with most crimes, violators of anticruelty laws can generally be prosecuted only if they act with actual criminal intent to commit a cruel act—simply being neglectful (that is, negligent) is not sufficient.

Second, in most cases, only government prosecutors, not private citizens, can enforce criminal laws. In one notorious case, a San Diego district attorney declined to prosecute chicken farmers who killed thirty thousand “squirming” hens in a wood chipper because they
could no longer lay eggs.
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The DA found no evidence the farmers intended to act cruelly.

Third, violations of anticruelty laws typically occur behind closed doors on private property. Because law enforcement officers are rarely both willing and able to obtain a search warrant (which requires convincing a judge of probable cause that the target has committed a crime), the only way to obtain evidence of wrongdoing is through an undercover investigation. It's hard enough to place an investigator inside a factory farm in a state where it's legal to do so. But a number of states have made it even harder. Under pressure from meat and dairy producers dogged by a constant stream of undercover footage showing inhumane and unhealthy conditions at their facilities, at least seven states have made it illegal to enter an animal facility under false pretenses or to film or take photographs on a factory farm without permission.
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Since few investigators are eager to spend a year in jail, these so-called ag-gag laws make undercover work on farms in gagged states costly and impractical.