COK Talks with David Wolfson, Esq.

David Wolfson, Esq., is the author of Beyond the Law: Agribusiness and the Systemic Abuse of Animals Raised for Food or Food Production, co-author of the chapter “Foxes in the Hen House; Animals, Agribusiness and the Law, A Modern American Fable” in Animal Rights: Current Debates and New Directions, and Lecturer in Animal Law at Harvard Law School.

Q. Can you give a brief overview of the ways in which abusive treatment of animals within agribusiness have been exempted from legal protection?

A. Sure. I like to think of a farmed animal’s life in three stages: on the farm, during transport and slaughter. There is no federal law governing the welfare of farmed animals on the farm, and the federal laws relating to transport and slaughter are very problematic; for example, the federal transport law has been determined by the U.S. Department of Agriculture (USDA) not to apply to trucks and the humane slaughter law does not apply to chickens (as a result of the USDA defining “livestock” to exclude chickens) and is very poorly enforced.

Given that the vast majority of an animal’s life is on the farm, the fact that there is no federal law governing this period is very troubling. It means that any protection must come from the states and here is where the real problem lies. State anti-cruelty laws fall into two categories: First, anti-cruelty laws that ostensibly apply to farmed animals but as a practical matter are not used to regulate common farming practices (such as the veal crate, battery cage and gestation crate) and which are highly problematic anyway (weak penalties, enforced by district attorneys who have no interest, limited access to animal production facilities, and so on), and second, anti-cruelty statutes that specifically exempt common farming practices. The majority of states fall into the second category—they have amended their anti-cruelty statutes to exempt common farming practices. This means that farmed animals in such states are literally beyond the law and any common practice, no matter how horrifying, is legal.

Q. In Beyond the Law, you assert that Europe seems to be moving forward with regards to legal protection for farmed animals, yet the United States is moving backward. Can you give some examples of this divergent trend? Why do you think this is the case?

A. In recent years, certain European countries and the European Union generally have moved toward a regulatory framework where common farming practices are examined and, in certain cases, prohibited. For example, the gestation crate, veal crate and battery cage are being phased out throughout the European Union. So, the divergent trend seems clear. On the one hand you have countries moving towards greater legal protection of farmed animals (Europe) and, on the other, you have states in the U.S. amending their anti-cruelty statutes to exempt common farming practices from legal regulation entirely.

I think a number of factors explain this. Europe is more comfortable with government regulation generally and less focused on arguments around individual rights. In addition, Europe has been dramatically exposed to some of the consequences of modern farming practices through BSE, foot and mouth disease, and the McLibel case, and the agricultural industry does not have as much power over the political process as compared to the U.S. I think the size of the United States, and the fact that farmed animal welfare is generally governed by state law, has also made change more difficult here. Finally, I think that the European animal protection movement, through such groups as Compassion in World Farming, has done a better job at hammering away at the educational message—and they have done so for many years. The U.S. animal rights movement is focused on so many different issues—this has resulted in a failure to effectively harness its resources for farmed animals.

Q. What do you think are the most effective actions lawyers can take within the legal system to help reduce the suffering of farmed animals?

A. That is a difficult question to answer. It is so hard to effectively utilize the law when it is so weak. The most important thing is to educate everyone about these exemptions and to try and turn the tide (and, at the very least, prevent the passage of common farming exemptions to anti-cruelty statutes in states that do not have such exemptions). It may also be possible to persuade district attorneys to apply state anti-cruelty statutes to cruel common farming practices in states where there are no common farming exemptions—California might be a good place. And there have been incredibly exciting recent developments – the successful ballot initiative to ban gestation crates in Florida, the progress on downed animals, the focus on foie gras, along with the recent Israeli Supreme Court decision prohibiting the force-feeding of ducks and geese. But until the public is fully aware of the realities of modern farming (and the public is mobilized in an effective manner) it will be hard to make a significant change.

Q. How best can laypersons help farmed animals?

A. Educating the public, legislatures, district attorneys, and everyone else. The public must be made aware of the cruelty that occurs as a result of common farming practices and the fact that laws do not regulate how farmed animals are treated by the agricultural industry. People just think that there must be some laws that provide some limitations in relation to the cruel treatment of farmed animals, but this is simply not the case.

Q. And, finally, where do you see the U.S. animal movement going on the farmed animal issue within the next ten years?

A. I hope that over the next few years the US animal movement recognizes that the most important issue in the animal protection movement is farmed animal welfare. When you look at the number of animals who are killed in the U.S. every year (in pounds, hunting, dissection, research, fur farming, and so on), over 95% are farmed animals. It is necessary to work together and use the concentrated power of the movement to focus on the issue which impacts over 95% of all animals.

I think the recent developments I discussed above indicate that there is a realistic chance that significant changes will occur. There is more information available on the plight of farmed animals than ever before. In fact, when you compare the state of the movement on this issue to 5 or 10 years ago, unbelievable progress has been made. I hope to see that continue.

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