ANIMAL LAW LECTURE SERIES KEYNOTE ADDRESS

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1 ANIMAL LAW LECTURE SERIES KEYNOTE ADDRESS PETER STEVENSON Chief Policy Advisor Compassion in World Farming (U.K.) Farm Animal Law: reflections from the European Union I m really grateful to Voiceless for inviting me to do this, it really is a great honour. Voiceless has a very fine reputation, not just here in Australia but internationally. The EU comprises 27 member states, with a population of 502 million people and 23 official languages. It is the largest importer in the world of agricultural products and together with the U.S. the largest exporter. Three institutions combine to produce legislation in the EU. Under the treaty, it is only the European Commission that can propose new legislation. Then, once it s proposed, that proposal is developed and considered by the European parliament and the council of ministers, who must jointly agree legislation in a co-decision procedure. As regards agriculture and farm animal welfare, the council of ministers comprises the agriculture ministers from the 27 member states. EU law takes the form of both directives and regulations. Both are equally binding. Sentient beings EU legislation in this field is underpinned by the EU treaty, which recognizes animals as sentient beings. In 1991 we delivered a petition, with over one million signatures, to the European parliament calling for animals to be given a new status as sentient beings. Initially a 1

2 declaration with this recognition was annexed to the Treaty of Rome, the EU s founding treaty but, though welcome, it was non-binding. So we continued to lobby, and a few years later a legally binding protocol was annexed to the treaty and then finally a full article was inserted into the body of the treaty. What this says is that in formulating and implementing the Union s policies on agriculture, fisheries, transport and research, the Union and the member states shall, as animals are sentient beings, pay full regard to the welfare requirements of animals. That is a core treaty obligation. Ban on barren battery cages I want us now to look at what the EU has done about battery cages. In 1996 the EU s expert body, then called the Scientific Veterinary Committee, produced a report that stressed that hens have a very powerful drive to lay their eggs in a nest, peck and scratch in the ground, perch, and dust bathe. None of these natural behaviours are possible in battery cages and so the report concluded that because of its small size and barrenness, the battery cage as used at present has inherent severe disadvantages for the welfare of hens. On the basis of this report, the Commission proposed a directive to give hens a bit more space in the cages. We lobbied the parliament and the council, saying that if the EU wanted to make good its claims, to base its policies on the scientific evidence, it should ban battery cages, not just make them a bit bigger. We also pointed out the industry s own data, which showed that a free-range egg cost just two pence more to produce than a battery egg. That s about three Australian cents. In other words, consumers could change to non-cage eggs for just a few pence each per week, provided that supermarkets charged no more extra than was needed to cover the additional costs of producing these eggs. The parliament and the council listened to these arguments, and in 1999 banned barren battery cages as from January Many egg 2

3 producers and some member states have argued that this ban should be delayed, but the parliament, the council and the commission have all said no there is no justification for postponement and the ban must come into force as scheduled in January It is heartening to see government holding firm in the face of intense pressure. Farmers were given a very generous phase out period of twelve and a half years, and the thinking there was that during this period many cages would come to the end of their working life and, therefore, farmers would be involved in a capital cost, whichever new system they produced. A key factor which gives authority and integrity to EU legislation is the fact that it is based firmly on scientific evidence. Before the commission draws up a new proposal, they receive a report from their scientific body which keeps changing its name, but it s now the Scientific Panel on Animal Health and Welfare of the European Food Safety Authority. That report reviews the scientific literature. So from 2012 there will only be three systems lawful in the EU; free-range, barn and regrettably enriched cages. I m afraid nothing is perfect in this life. These cages provide just a little bit of extra space, compared with the barren cage. They include perches, a nest box, litter but these extra facilities are so meager and the space so small that the enriched cages can t properly fulfill hen s welfare needs, and we re urging farmers as they move away from the barren cage to go into barn or free-range, not into the enriched cage. Very interestingly the ban on the barren cage is being supported by retailers. Some of them are going further and saying they won t sell or use, not just the battery eggs, but the eggs from enriched cages. Thus, for example, all German, Austrian, Belgian and Dutch supermarkets are now cage free on their shell eggs. Many UK supermarkets are cage free on their shell eggs and some of them are actually not using battery eggs even in products 3

4 like cake or pasta, which use eggs as an ingredient. It s not just the retailers. For example, McDonalds, which is the largest food service operator in the EU, 90% of the eggs that they use in 23 EU countries are actually free range. Unilever, one of the largest food manufacturers in the EU, is cage free on all its sauces and mayonnaises in Western Europe, and committed to going cage free in much of Eastern Europe. What I am hoping is that, as we move away from battery cages, this is the way that we re going to see hens kept. Breeding sows Turning to pigs, there are two main kinds of pigs kept on commercial farms; there s the breeding sow, whose role is to produce lots of piglets, and then there s the fattening pigs who are reared for bacon and pork. In industrial farming, most sows are kept in sow stalls. These are so narrow that the sow can t even turn around, and she s kept like this throughout her 16 week pregnancy, pregnancy after pregnancy in other words, for most of her adult life. In an alternative version of the stall, the back of the cage is left open, so to prevent the sow escaping she s tethered to the floor with a neck or belly chain. As long ago as 1991, the EU banned the tethering of sows as from Then in 1997, the Scientific Veterinary Committee produced a report that was immensely critical of sow stalls. So armed with this report - and crucially with economic data that was showing that housing sows in groups added just one to two Eurocents to the cost of producing a kilogram of pork, again, about three Australian cents - we argued that the EU should now ban sow stalls. The industry responded by saying, Ah, but in group housing there can be aggression amongst sows, therefore sow stalls are good and group housing is bad. We pointed out that in the UK, many farmers for years had been using group housing, and that they had learned the way to prevent aggression in group housing is to minimize competition at feeding time, and not to mix unfamiliar sows. We ve learned from experience in the EU that politicians will only agree on major reform if they re convinced, firstly, that it is based on sound science; secondly, that it is not going to lead to 4

5 significantly increased costs; and thirdly, that it s viable, that it s not going to cause more problems than it solves. In this case, happily, the politicians were convinced, and in 1999 sow stalls were banned, the ban coming into force in Regrettably, even under the directive, after 2013 farmers will still be allowed to use stalls in the first four of the 16 weeks of pregnancy. A new scientific report in 2007 from the European Food Safety Authority showed that this is very damaging to sow welfare; that these first four weeks will severely restrict the sow s movement; it will cause more stress; the lack of exercise will lead to impaired bone and muscle strength and reduced cardiovascular fitness. And I would say that in the UK and Sweden, which long ago banned sow stalls - they are banned throughout the pregnancy - there is no first four weeks exception. The way I d like to see sows kept is outdoors, or if they re indoors in a pen with a deep bed of straw, and in the U.K. already 40% of our sows are kept free range. Fattening pigs I want to now look at the fattening pigs. They are kept in very overcrowded, barren units, usually on bare concrete or fully slatted floors with no straw or any other bedding, absolutely classical factory farming. Since 2003, the EU Pigs Directive has required that pigs have permanent access to a sufficient quantity of material to enable proper investigation and manipulation activities. The Directive requires straw, hay, wood, sawdust, mushroom compost or peat. Scientific research shows that in natural conditions pigs are very active. They spend 75% of their day in activity, rooting, foraging, exploring. None of these activities are possible for factory farmed pigs, so bored and frustrated they turn to the only other thing in their pens, which is the tails of other pigs, and they begin to chew and then bite those tails. Farmers prevent biting by slicing off docking - part of the tail, but science shows that the correct way to prevent tail biting is not to dock the tail, but to keep the pigs in good conditions, and recognizing this the EU has now banned routine tail docking. 5

6 What the law says is quite interesting. What it says is that farmers first have to try and prevent tail biting by improving what it refers to as inadequate conditions. Only when farmers have tried to do that and are still having a biting problem can they tail dock. What the science shows us is that the key factors behind tail biting are a lack of straw and a barren environment. So any farmer who s not providing straw or something similarly effective cannot lawfully tail dock. Sadly, many EU pig farmers ignore the laws on enrichment and tail docking. We are working hard. I spend a huge amount of my time trying to get these crucial laws properly enforced, because if they were properly complied with then it wouldn t be possible to keep pigs in barren factory farms. I want to look at another quite upsetting aspect of pig production. Castration of pigs, which involves the tearing of tissues, is banned in the EU. But most male pigs in the EU are surgically castrated and that invariably entails the tearing of tissues. In an attempt to get better enforcement, the European Commission recently brought together key stakeholders, and in quite an interesting interplay between law and voluntary action a number of major pig farmers and other stakeholders have agreed: the 2011 European declaration on alternatives to surgical castration of pigs - they have agreed from the beginning of 2012 that when castration is carried out it will be carried out with prolonged analgesia and/or anesthesia, and they have agreed that surgical castration will be abandoned altogether in Veal crates In the veal crate system, calves are kept in a wooden sided box so narrow that they can t even turn around. Peter Roberts, who founded Compassion in World Farming and was himself a farmer, actually in the 80s, brought a private prosecution against a U.K. veal crate farm which, ironically, was being run by monks. The case was lost, but it caused such public outcry in the U.K. that the government actually banned veal crates from

7 In the early 1990s, the U.K. was exporting 500,000 calves every year to veal crates on the continent, even though the system was illegal in the U.K. It was also exporting two million sheep a year for slaughter abroad. The British public was very opposed to live exports, particularly the calf exports, but the government said We can t ban this trade because of the EU s free trade rules. We brought judicial review proceedings against the government, arguing that they had misadvised themselves as to the law, and that case went all the way to the European court. It was lost, but again huge public awareness, this time Europe wide. At the same time the scientific veterinary committee who has done so much good work produced a report that was immensely critical of veal crates, and in 1997 the EU banned veal crates as from Chickens reared for meat I want to look now at broilers, the chickens that are reared for meat. This is how the vast majority of broilers in the EU, and I would imagine here in Australia, are kept. The Broilers Directive, which came into force in 2010, is really disappointing. It permits broilers to be stocked at 39 kilograms of chicken per square meter. Given that chickens weigh about 2 kilograms at slaughter this permits 19 chickens to be kept in one square meter. That represents really severe overcrowding. But it is a start, and the EU has quite a good track record of improving its legislation over time. For example, the 1991 Pigs Directive just banned the tethering of sows; the 2001 directive went further and banned sow stalls. Antibiotics I want to look at the use of antibiotics. They are being used in industrial farming, as growth promoters, as prophylactics to prevent disease, and therapeutically. With industrially farmed animals, antibiotics are being added regularly to their feed and water to suppress the diseases that otherwise would be inevitable when you keep large numbers of animals crammed into overcrowded conditions. It s been well established for many years now that this overuse of antibiotics in industrial farming is leading to the development of resistance to antibiotics, not just those used in farming but to related antibiotics being used to treat serious human disease. Alert to this danger, in 2006 the EU banned the use of antibiotics as growth promoters, but it has become clear since then that there is a vast use of antibiotics as prophylactics to prevent disease. Just 7

8 earlier this year, the World Health Organisation said that the use of antibiotics in food animal production contributes to increased drug resistance by drugs they are referring to antibiotics. They went on to say this is quite extraordinary approximately half of current antibiotic production is used in agriculture, to promote growth and prevent disease, as well as to treat sick animals. They went on to say with such massive use those drug resistant microbes in animals can later be transferred to humans. Quite literally through our industrial farming, together with excess use of antibiotics in human medicine, we are at risk of pushing ourselves to a post-antibiotic age where we simply don t have the drugs to treat serious illness. I think really the time has come for a worldwide ban on not only the use of antibiotics as growth promoters, which has already happened in the EU, but also on prophylactics. The only responsible use for antibiotics in farming is therapeutically to treat individual sick animals. Disease should be prevented, not by antibiotics, but by good housing, husbandry and hygiene. Cloning Just as the EU is beginning to solve some of the problems of industrial farming new threats are coming along, cloning being one of them. Cloning aims to produce genetically identical copies of the highest yielding cows and the fastest growing pigs. Most clones die in pregnancy, and many die in the early stages of life from cardiovascular failure, respiratory difficulties, and defective immune systems. Moreover, pregnancy abnormalities, difficult births, caesarian sections are all more common in clones. Cloning is already arguably unlawful under the EU s directive 98/58, which says unnatural or artificial breeding or breeding procedures which cause, or are likely to cause, suffering to any of the animals concerned, must not be practiced. But it would be much better if we had some legislation that expressly addressed the question of cloning, because as lawyers I think we all know how hard it is to deal with just a rather broad brush proposition. Interestingly, recently the European Parliament considered a proposed novel food regulation, and voted by a huge majority for a ban - on animal welfare and ethical grounds - on the sale of food from clones and their descendants, the sale of both meat and dairy products. The council and the commission said they were willing to see a ban on the food from clones, but not from the descendants. The parliament rightly argued that if you permit the food from the descendants, cloning with all its adverse implications for welfare is going to be encouraged. The parliament refused to dilute its position, and the conciliation procedure between the parliament and the council as mandated by the treaty actually failed to produce an agreement, and the talks collapsed. This was the first time that the parliament had felt so strongly about welfare, and this was just earlier this year, that they rejected major new legislation which wasn t primarily about welfare, because of its adverse implications for welfare. The commission is now going to have to come up with a new proposal on cloning and I hope this will lead, not just to a ban on the sale of food from clones and their offspring, but a prohibition on the use 8

9 of clones and their offspring on EU farms. Hot on the heels of cloning we ve got genetic engineering. This can often involve inserting genes from one species into another. For example, human growth genes have been inserted into pigs to get faster growth from the pigs. All too often genetic engineering involves massive suffering. I believe the time has come in Europe - but I would suggest worldwide - for cloning and genetic engineering of animals to be banned. The EU has actually something of a track record here. Back in 99, they banned the use of BST, bovine somatotropin, which is the genetically engineered version of the dairy cow s own growth hormone. It s injected into cows to boost milk yields, even though milk yields are already so high that many dairy cows are suffering from a range of serious health problems. Economic considerations can actually produce economic benefits. I mentioned earlier the question of economics, because a key constraint in the EU and elsewhere to improving welfare is the fear that this is going to lead to a huge increase in costs for farmers, and higher food prices for consumers. Of course in some cases it will lead to an increase in costs but as I ve already said when you look at things like eggs and the rearing of sows, the extra costs involved are extremely small and research shows that in some cases improved welfare Animals reared to high welfare standards are often healthier. This can mean that one has reduced veterinary bills, lower mortality rates and indeed with fattening pigs it s been shown that if they re given straw and/or more space that there will be better growth rates and better feed conversion. So we really need to move away from this notion that improved welfare is always going to be economically burdensome. We need to look for the win-win situations where improved welfare and economic benefits can go hand in hand. WTO Another major constraint is fear of the rules of the World Trade Organisation. The common belief is that the WTO rules don t permit a country to restrict imports on welfare grounds, so the fear is that if the EU improves its welfare its farmers will be vulnerable to lower welfare, and hence cheaper 9

10 imports. That was the concern that led to The Broilers Directive being weak and to the pressure to delay the ban on battery cages, although happily that pressure has been unsuccessful. But in fact if one looks at WTO case law, in fact it s nothing like as simple as just saying there can never be restriction on imports on welfare grounds. The key provision, the difficult provision here, is article 3 of the WTO which provides that imported products must be accorded treatment no less favourable than like domestic products, and the conventional wisdom is that in deciding if two products are not like each other, and therefore can be treated differently, one cannot take any account of the way in which they re produced. So battery eggs and free range eggs are like products. But actually, if you really read the case law rather than relying on the conventional wisdom, you find the case law saying that in actually determining actual likeness, it s important to take account of consumers tastes and habits, their prejudices, behaviour, and it may well be that if consumers regard two products as being different because of the way in which they re produced, the WTO will not regard them as like products. If that s the case it means that the inhumanely produced product can be treated less favourably than the humane version of the product. Even if a particular trade measure is viewed as breaching the rules, it may be possible to justify it under article 20 of the WTO s exceptions, which permit measures which are necessary inter alia to protect public morals and animal health. So yes, the WTO rules do provide a very strict constraint on trade related measures, but the WTO has been trying to find a better balance lately between trade liberalization and other legitimate public policy considerations. Indeed, the EU has recognized this. Its new slaughter regulation, agreed just two years ago, provides that imported meat must come from animals that have been slaughtered to welfare standards at least equivalent to its own. The inefficiencies of industrial livestock production We re often told that industrial livestock production is necessary to feed the growing world population, that it s super efficient. But is this really so? Industrial production is dependent on feeding very substantial quantities of cereals and soy to animals. The research shows that you need 10

11 to feed several kilos of grain to an animal to produce one kilo of edible meat. Put another way, the nutritional value consumed by animals when they eat a given quantity of cereals is much greater than that that is delivered to humans in the resultant meat. This is inefficient. It is a wasteful use of the crops and of the land, water and fossil fuel energy used to grow them. Because of its dependence on feeding grain to animals, factory farming is causing very considerable pollution of water. Much of the synthetic nitrogen fertilizers that are used to grow the animal feed crops, and the nitrogen that is in the concentrate feed given to industrially farmed animals, isn t absorbed by the crops or the animals. It s washed away and pollutes water and aquatic ecosystems. A new U.N. report published just two weeks ago said that industrial livestock production is probably the largest sector specific source of water pollution, and that meant worldwide. This need to produce crops to feed animals has led to huge intensification of crop production. That, in turn, is leading to soil degradation and loss of biodiversity. Huge swathes of biodiversity rich tropical rainforest and savannah in Latin America is being cut down to grow soy for industrially reared animals. That is releasing huge amounts of stored carbon into the atmosphere, thereby contributing to climate change. Moreover, the high levels of meat and dairy consumption that have been made possible by industrial livestock production are having an adverse impact on human health. Study after study is showing that excessive meat consumption increases the risk of obesity, heart disease and certain types of cancer, and again the new U.N. report remarkably said that the number of undernourished people in the world, about one billion, is matched by the numbers who are obese and overfed. These adverse impacts of industrial production are often referred to by economists as negative externalities. They represent a market failure, because the costs are borne by third parties or society as a whole not by the farmers who are producing the meat, nor are they reflected in the price paid by consumers. Increasingly bodies such as the World Bank and the U.N. Food and Agriculture Organisation are saying we have to find mechanisms to internalize these externalities into the costs of producing meat and dairy, and therefore into the price paid by consumers. In conclusion, legislation clearly has a pivotal role to play in improving the welfare of farm animals. We need as lawyers to work closely with researchers, who provide the scientific rationale for improved legislation, and with the economists as we try to get a better understanding of how in some cases improved welfare can be economically beneficial, and a better understanding of how the adverse impact of factory farming on the environment, biodiversity and human health, and this wasteful use of crops, water, land and energy does entail very real economic costs. 11