Farm animal welfare
In January, we wrote about state “ag-gag” laws and the trend of federal courts overturning such laws nationwide. “Ag-gag” is the term for fraud and trespass laws that aim to prevent undercover journalists, investigators, animal rights advocates, and other whistleblowers from secretly filming or recording at agricultural production facilities. We specifically discussed a case in Iowa, where the state’s “agricultural production facility fraud law” was found to be unconstitutional on First Amendment grounds in the federal District Court for the Southern District of Iowa. In response to that ruling, the legislature modified the law, but a group made up of animal rights, community, and food safety organizations has again sued the state. The plaintiffs contend that the new law still violates the First and Fourteenth Amendments to the Constitution.
Iowa law: current and former
Shortly following the aforementioned district court decision, Iowa passed a new ag-gag law with slightly different language. The new Iowa law changes the crime from “agricultural production facility fraud” to “agricultural production facility trespass.” The legislature also changed the language from outlawing false statements or pretenses to outlawing deception. Another important change is the focus in the new statutory language on the “intent to cause physical or economic harm or other injury” to the farm.
The new law reads:
717A.3B Agricultural production facility trespass.
1. A person commits agricultural production facility trespass if the person does any of the following:
a. Uses deception as described in section 702.9, subsection 1 or 2, on a matter that would reasonably result in a denial of access to an agricultural production facility that is not open to the public, and, through such deception, gains access to the agricultural production facility, with the intent to cause physical or economic harm or other injury to the agricultural production facility's operations, agricultural animals, crop, owner, personnel, equipment, building, premises, business interest, or customer.
b. Uses deception as described in section 702.9, subsection 1 or 2, on a matter that would reasonably result in a denial of an opportunity to be employed at an agricultural production facility that is not open to the public, and, through such deception, is so employed, with the intent to cause physical or economic harm or other injury to the agricultural production facility's operations, agricultural animals, crop, owner, personnel, equipment, building, premises, business interest, or customer.
Iowa law defines “deception,” in part, as “knowingly…[c]reating or confirming another’s belief or impression as to the existence or nonexistence of a fact or condition which is false and which the actor does not believe to be true,” or “[f]ailing to correct a false belief or impression as to the existence or nonexistence of a fact or condition which the actor previously has created or confirmed.”
The previous Iowa law, which was struck down in a district court decision, is currently still available on the Iowa Legislature’s website. The old law made it illegal to gain access to a facility through false pretenses and to make a “false statement or representation” in order to be employed by an agricultural production facility. Note that the former law did not use the word “deception,” or touch on injury to the farm.
In the district court decision overturning the previous law, Judge Gritzner agreed with the plaintiffs that the language of the law violated the First Amendment right to free speech because it was content-based, viewpoint based, and overbroad. He decided that even though the law banned false statements, such false statements are still protected under the First Amendment. In other words, just because Iowa livestock operators do not like the speech of the activists and whistleblowers trying to gain access to their farms, it does not mean that the speech should be infringed upon.
Animal rights groups and others challenge the new law
On April 22, 2019, shortly after the passage of Iowa’s new law, plaintiffs filed suit against the state once again in the U.S. District Court for the Southern District of Iowa. Plaintiffs include Animal Legal Defense Fund, Iowa Citizens for Community Improvement, Bailing out Benji, People for the Ethical Treatment of Animals, Inc., and the Center for Food Safety. In their complaint against the state of Iowa, plaintiffs contend that the new law still violates the Constitution, saying that “the only difference” between the two laws is that the new law “targets a slightly different form of speech.” In other words, Iowa has changed its law from outlawing false statements or pretenses to outlawing deception, but the plaintiffs believe the new law basically ends up doing the same thing as the old, overturned ag-gag law; it prevents their speech based on content and viewpoint. Plaintiffs rely on the following arguments to illustrate their reasoning:
- Iowa’s new law bans any negative speech about the agricultural industry, which creates a preference for speech favorable to the industry.
- Whistleblowing is not criminalized in other Iowa industries.
- Iowa statutes already outlaw fraud, trespass, and adulteration of food products, as well as the theft of trade secrets, so agriculture already has adequate protection from economic harm.
- Outlawing deception “with the intent to cause…other injury” is too vague; it is not easily discernable what other kinds of speech or actions might be illegal under the statute.
As such, the plaintiffs allege that the Iowa law violates freedom of speech under the First Amendment because it is overbroad, viewpoint-based discrimination, and because it is vaguely written under the First and Fourteenth Amendments. Finally, plaintiffs contend that the law violates the Fourteenth Amendment’s Due Process clause because it “substantially burdens” their exercise of free speech. The court must determine whether or not they agree with this assessment.
Many “ag-gag” statutes struck down as unconstitutional, but many more decisions to go
As was mentioned in our January blog post, there is ongoing ag-gag litigation outside of Iowa, as well. Kansas and North Carolina have both been sued for their ag-gag statutes, and both cases are still pending. Will the federal courts find laws in Iowa, Kansas and North Carolina unconstitutional like they have previously in Iowa, as well as in Idaho, Utah and Wyoming, or will they find that they do not violate freedom of speech and due process? Will lawsuits challenge the remaining ag-gag laws in Alabama, Arkansas, Missouri, Montana, and North Dakota? The answers may take a while to sort out.
Written by Ellen Essman, Law Fellow, Agricultural & Resource Law Program
Veal and dairy producers in Ohio will be subject to new livestock care standards in 2018. Producers were first made aware of these changes when the Ohio Livestock Care Standards for veal, dairy and other species were originally adopted in September of 2011 after the passage of State Issue 2, a constitutional amendment that required Ohio to establish standards for the care of livestock. Since the new care standards make significant changes to the management of veal and dairy, producers were given a little more than six years to transition their facilities and practices accordingly. The new standards will be effective on January 1, 2018. Producers with veal calves and dairy cattle are encouraged to understand the regulations and make the required changes to their operations by January 1.
Changes to veal regulations
The regulations for veal address housing for veal calves weighing 750 pounds or less. Currently, veal calves may be tethered or non-tethered in stalls of a minimum of 2 feet x 5.5 feet. Next year, the following housing standards will apply:
- Tethering will be permitted only to prevent naval and cross sucking and as restraint for examinations, treatments and transit, if:
- The tether is long enough to allow the veal calf to stand, groom, eat, lie down comfortably and rest in a natural posture;
- The tether’s length and collar size is checked every other week and adjusted as necessary.
- Individual pens must allow for quality air circulation, provide opportunity for socialization, allow calves to stand without impediment, provide for normal resting postures, grooming, eating and lying down, and must be large enough to allow calves to turn around.
- By the time they are ten weeks old, veal calves must be housed in group pens. The regulations currently require that group pens meet the above standards required for individual pens and also must contain at least two calves with a minimum area of 14 square feet per calf, must separate calves of substantially different sizes and that calves must be monitored daily for naval and cross sucking and be moved to individual pens or provided other intervention for naval or cross sucking.
The veal regulations, including both the current rules and the rules that will become effective January 1, are available here.
Changes to dairy cattle regulations
There is only one change to the dairy care standards. As of January 1, docking the tails of dairy cattle will only be permissible if:
- Performed by a licensed veterinarian; and
- Determined to be medically necessary.
The dairy cattle standards, including the current tail docking rule and the rule that becomes effective January 1, are here.
Board nears completion of standards for farm animal care
The Ohio Livestock Care Standards Board accepted an enormous task nearly a year ago when charged with the responsibility of developing rules for the care and well-being of livestock in Ohio. Since that time, the board has proposed numerous standards on topics ranging from euthanasia to housing. To date, two sets of the board's standards have completed the rulemaking process and are now effective. Several others await either final approval by the board or review by the Ohio legislature's Joint Committee on Agency Rule Review (JCARR). The following summarizes the board's progress.
1. Livestock care standards developed by the board that became effective on January 20, 2011 include:
- Euthanasia. The standard outlines acceptable euthanasia methods for each species of livestock, and provides guidelines for use of each method of euthanasia. See the final regulation in the Ohio Administrative Code, Section 901:12-1.
- Civil penalties. The rule establishes penalties and a notification procedure for violations of the livestock care standards. Violations range from minor--punishable by a penalty of up to $500 for a first offense and $1,000 for subsequent offenses within 60 months of the first--to major--punished by a civil penalty of $1,000 to $5,000 for a first offense, and $5,000 to $10,000 for each subsequent offense within 60 months of the first. A major violation is one that imperils the animal’s life or causes protracted “disfigurement,” “health impairment,” or “loss or impairment of the function of a limb or bodily organ.” See the final rule at OAC Section 901:12-2.
2. Livestock care standards submitted by the board and awaiting final review by JCARR:
General considerations for the care and welfare of livestock. Establishes general management requirements for all livestock, including feed and water, management, health and transportation. Key provisions in this standard:
- Housing, equipment and handling facilities must minimize bruises and injuries.
- Restraints must be minimal.
- Handling devices must be humane. Electric prods are permissible if hand held, battery powered and 50 volts or less, but may not be used on poultry, equine, alpacas, llamas, calves weighing less than 200 pounds, pigs weighing less than 35 pounds, on sensitive areas or on non-ambulatory disabled animals.
- Malicious or reckless throwing, dragging or dropping of an animal is prohibited, but minimal dragging of a disabled animal may occur in certain circumstances.
- Picking up or carrying an animal by its ears or tail is prohibited, as is pulling an animal's legs in positions or directions that cause distress to the animal.
- Animals must be monitored regularly and steps must be taken when evidence of disease, injury, or parasites is present.
- A “Veterinary-Client-Patient-Relationship” is necessary to obtain and administer prescriptive drugs to livestock.
- Health and medical practices must be performed humanely.
- Disabled and Distressed Livestock. The proposed rule sets forth standards of care for distressed and disabled livestock, including disabled "downer" livestock, which the rule refers to as "non-ambulatory disabled" animals. Action must be taken to address an animal's situation, either by caring for, monitoring, treating, transporting, slaughtering or euthanizing the animal. The rule prohibits loading a disabled, non-ambulatory animal for transport to a non-terminal market or collection facility. If a disabled or distressed animal is at a non-terminal market or collection facility and there is no option for immediate sale, standards of care must be provided or the animal must be released or euthanized. The owner must keep records of treatments, medications and withdrawal times.
3. Standards in draft form and currently open to public comment include:
Standards for Individual Species. In addition to the general consideration standards for all livestock, the board has proposed individual standards for goats, sheep, turkeys, poultry, swine, beef, dairy, veal, equine, alpacas and llamas. The individual standards address unique needs and issues regarding feed and water, management and transportation for each specie. Key issues addressed in the individual standards include:
- Providing newborns with colustrum or colustrum replacement within the first 24 hours.
Standards for pen sizes, housing materials, lighting, air circulation, breeding and birthing pens and outdoor pens. Of interest in these standards:
- Restrictions on the use of gestation crates for swine after December 31, 2025.
- For new farms not in existence on the rule's effective date, prohibition of conventional poultry battery cages that do not provide areas for nesting, scratching, perching or bathing.
- Management of groups of animals.
Standards for tethering, dehorning, castrating, shearing, induced molting, tail docking and treatment of tusks, beaks, teeth, hooves and toes. Of particular interest in these standards:
- Restrictions on tethering and requirements for group housing of veal calves after December 31, 2017.
- Beginning January 1, 2018, tail docking of dairy cattle may occur only if medically necessary and performed by a licensed veterinarian.
To review the standards and the status of the work by the Ohio Livestock Care Standards Board, visit this website.
The Ohio Livestock Care Standards Board has proposed civil penalty provisions for violations of the livestock care standards currently under development by the Board. The proposal addresses notification procedures for the Ohio Department of Agriculture (ODA), the agency responsible for enforcing the standards, and establishes two types of violations of the livestock care standards: minor violations and major violations.
A minor violation is one which violates the standards due to neglect or unintentional acts of substandard practices, but which does not place an animal’s life in imminent peril or cause protracted disfigurement, protracted impairment of health, or protracted loss or impairment of the function of a limb or bodily function. For a minor violation, the ODA may fine the offender up to $500 for a first offense and up to $1,000 for a subsequent offense committed within 60 days of a previous offense.
A major violation is one which does place an animal’s life in imminent peril or cause protracted disfigurement, protracted impairment of health, or protracted loss or impairment of the function of a limb or bodily function, or a violation that results in unjustifiable infliction of pain due to reckless or intentional acts. The ODA may issue a penalty between $1,000 and $5,000 for a first major violation and between $5,000 and $10,000 for repeat violations committed within 60 days of a prior offense. For major violations, the department may assist with the provision of care services for the animals and may assess the violator for the costs of providing proper care to the animals.
For both minor and major violations, the department may also seek recovery costs for investigations that result in penalties, including salary costs for employees directly involved in the investigation. The rule also states that a violation affecting more than one animal may be considered one offense of the standards.
The Director of the Ohio Department of Agriculture has posted the proposed civil penalty provisions for public comment on ODA’s website. The comment period runs until November 2.
Proposed rule addresses standards for farm animal euthanasia
The Ohio Livestock Care Standards Board has developed its first set of proposed standards regarding farm animal welfare, pursuant to the constitutional amendment passed last year by Ohio voters as Issue 2 (see our earlier posts on Issue 2). The Livestock Care Standards Board unanimously approved standards regarding euthanasia of farm animals on October 5, 2010. The ODA will now carry the Board's proposed standards through the administrative rulemaking process.
The proposed standards define acceptable methods of euthanasia, which includes inhalant agents, injectable agents, captive bolt guns, blunt force, gunshot, cervical dislocation, decapitation, electrocution, foam hypoxia, maceration and exsanguination. The proposal establishes different acceptable methods and guidelines for different species, which includes equine, poultry, swine, cattle, goats, sheep, alpaca and llamas. Provisions also address general considerations for performing euthansia, such as euthanization of animals unlikely to recover from illness or injury, determination of death, unsuccessful euthanasia, disposal of animals and mass euthanasia. The rule references a civil penalty provision for violations, but the actual civil penalty provision is still under development by the Board.
Interesting to note is how the proposed euthanasia rule relates to the animal welfare agreement entered into last June by the State of Ohio, Humane Society of the United States, Ohio Farm Bureau and several other agricultural organizations. Regarding euthanasia, the animal welfare agreement states:
"Recommendations will be made to The Ohio Livestock Care Standards Board (OLCSB) to take action on issues related to downer cattle and humane euthanasia using language consistent with the proposed ballot initiative."
The proposed ballot initiative referred to in the animal welfare agreement is the HSUS-led initiative that could have been on the upcoming November ballot, but was pulled as part of HSUS's compromise in the animal welfare agreement. The ballot initiative proposed amending the Ohio Constitution to include this language on euthanasia:
"Require a farm owner or operator to ensure that all on-farm killing of cows or pigs be performed in a humane manner using methods explicitly deemed “Acceptable” by the American Veterinary Medical Association. This standard shall also include a prohibition on strangulation of cows and pigs as a form of euthanasia."
Note that the animal welfare agreement does not require the adoption of the ballot initiative language in the euthanasia standards; it states only that "recommendations will be made" to the Board to take action using language consistent with the proposed ballot language. A review of the record available on the Board's website does not indicate whether any party to the animal welfare agreement made such recommendations to the Board. The Board had already begun working on the euthanasia standards prior to the announcement of the animal welfare agreement in June. A review of the Board's proposal, however, indicates that the euthanasia standards do not precisely duplicate the HSUS's proposed ballot language. The standards don't include a specific prohibition against strangulation of cows and pigs. Instead, the standards do not list strangulation as an acceptable method of euthanasia. Nor do the standards specifically reference the American Veterinary Medical Association (AVMA) acceptable standards; but many of the Board's acceptable standards are similar to AVMA acceptable standards. Whether or not recommendations were made to the Board as promised in the animal welfare agreement, the Board's proposed euthanasia standards do appear to be "consistent with" the ballot initiative language on euthanasia.
ODA announced the Board's proposed euthanasia standards today and will accept comments on the standards until October 20, 2010. Following review of comments, ODA will submit the package to the joint legislative committee that oversees the administrative rulemaking process. To view the proposed euthanasia standards, visit the ODA website, here.
Ohio livetock farms have been a target of animal welfare organizations, evidenced by recent releases of undercover videos taken at Buckeye Veal Services and Conklin Dairy Farm and the broadcast of the "Death on a Factory Farm" documentary. The strategy is to gain employment or access to the farm, videotape without the knowledge or permission of the farm owner, and later release video suggesting that the farm mistreats its livestock. This approach has heightened the visibility of farm animal welfare issues in Ohio, but the strategy and its impacts raise many legal issues. A presentation I recently prepared for the Ohio Agricultural Law Symposium highlights research we're conducting at OSU to identify the legal issues and implications of the undercover video approach. Below is synopsis of a few of the more controversial legal issues.
- Ohio's penalty structure for animal cruelty. At least one animal welfare organization claims that it has targeted Ohio for undercover investigations because Ohio is one of the few remaining states that limits animal cruelty punishment to misdemeanor penalties (with the exception of a repeated offense against "companion animals," which is a fifth degree felony). Most states have adopted a felony penalty structure for acts of animal cruelty, which results in more severe punishment. Ohio legislators have made nearly a dozen attempts to increase penalties for animal cruelty, most recently with H.B. 55 (see our earlier post). The proposals always fail, allegedly due to an effective lobbying effort from groups who argue that penalties for cruelty to animals in Ohio should not be higher than those for abuse of humans. While undercover video releases don't appear to be moving felony penalty legislation forward currently, they could be garnering public support for a future proposal. Should Ohio adopt a felony penalty, and if it does, will undercover investigations find a new state target?
- Duty to report animal abuse. The videographer of the Conklin Dairy Farm video witnessed acts of mistreatment against animals by an employee for approximately one month before the organization released the videos. Many argue that the videographer should have reported the abuse right away, but neither Ohio or any other state has a law requiring an ordinary person to report animal cruelty. Fifteen states have laws mandating that veterinarians report suspected animal cruelty: Ohio does not. Another 13 states have "voluntary" reporting laws for veterinarians, which grant a veterinarian immunity and a waiver of client confidentiality upon reporting abuse, but not Ohio. Ohio does have several mechanisms a person could use to initiate an investigation of suspected animal cruelty through local law enforcement or the county humane society. In a similar vein, should livestock farms have an employment policy requiring employees to report incidents of animal mismanagement and abuse by other employees?
- Who's committing the crime? The person committing the act against an animal is the obvious offender, but what about the videographer and the employer? Circumstances may exist such that the videographer was a legal "accomplice" to the crime. Under Ohio law, a person can be prosecuted as an accomplice if the person solicited another to commit a criminal offense; aided, abetted or conspired with another in committing the offense; or caused an innocent or irresponsible person to commit the offense, and also shared in the intent to commit the crime. Likewise, it may be possible to prove that a videographer acted with "recklessness" by observing and taping the crime or by encouraging and interacting with the offender; recklessness is the required mental state for an animal cruelty violation. As for the employer, Ohio's humane society law clarifies that a conviction of an employee for animal cruelty does not prevent the prosecution of the employer for "allowing a state of facts to exist which will induce cruelty to animals" by the employee.
These are only a few of the issues surfacing from the undercover video strategy. Given the current climate of continued attempts to "out" livestock farmers and push the farm animal welfare issue in Ohio, perhaps it's time we begin finding solutions to the issues.
Bill modifies penalties for animal cruelty, with focus on companion animals
Months before the current controversy of alleged animal cruelty by employees of Conklin Dairy Farms, Rep. Williams and Combs introduced H.B. 55 to revise portions of Ohio's animal cruelty law. Yesterday, the Ohio House passed the animal cruelty bill, which had been introduced last March.
H.B. 55 focuses largely on cruelty to "companion animals," which includes dogs, cats, and any animal kept inside a residential dwelling. Changes to the companion animals provisions include authority to order child offenders to undergo counseling and psychological treatment, inclusion of companion animals in court protection orders, and requirements for the State to approve continuing education courses on animal abuse counseling for medical and social work professions.
In regards to cruelty to animals other than companion animals, H.B. 55 adds a new penalty provision. The penalty remains a second degree misdemeanor for first offenses, but increases to a first degree misdemeanor for subsequent violations of the law. Current law addresses each offense as a second degree misdemeanor. Under Ohio law, a first degree misdemeanor can result in a maximum penalty of 180 days in jail and a $1,000 fine, while a second degree misdemeanor violation carries a maximum of 90 days in jail and a $750 fine.
What is cruelty to animals? Ohio's animal cruelty law is Ohio Revised Code section 951.13, which states that "no person shall:
- (1) Torture an animal, deprive one of necessary sustenance, unnecessarily or cruelly beat, needlessly mutilate or kill, or impound or confine an animal without supplying it during such confinement with a sufficient quantity of good wholesome food and water;
- (2) Impound or confine an animal without affording it, during such confinement, access to shelter from wind, rain, snow, or excessive direct sunlight if it can reasonably be expected that the animals would otherwise become sick or in some other way suffer. Division (A)(2) of this section does not apply to animals impounded or confined prior to slaughter. For the purpose of this section, shelter means a man-made enclosure, windbreak, sunshade, or natural windbreak or sunshade that is developed from the earth’s contour, tree development, or vegetation;
- (3) Carry or convey an animal in a cruel or inhumane manner;
- (4) Keep animals other than cattle, poultry or fowl, swine, sheep, or goats in an enclosure without wholesome exercise and change of air, nor or feed cows on food that produces impure or unwholesome milk;
- (5) Detain livestock in railroad cars or compartments longer than twenty-eight hours after they are so placed without supplying them with necessary food, water, and attention, nor permit such stock to be so crowded as to overlie, crush, wound, or kill each other."
Before passing H.B. 55 yesterday, the House included floor amendments that make minor revisions to the dangerous and vicious dog provisions in Ohio Revised Code 955.11.
The Ohio Senate has not introduced a similar animal cruelty bill, and has only a few more sessions until its summer recess begins in early June. If the Senate doesn't pass the animal cruelty legislation before the end of the year, the bill will expire and must be reintroduced after January, in the next session of the Ohio General Assembly.
Animal rights groups have advocated around the country for stiffer penalties on animal cruelty offenses. Most state animal cruelty laws contain both misdemeanor and felony penalties, with the more severe felony charges typically applying to acts that are intentional, heinous or involve mutilation. Under Ohio law, felony charges apply to certain offenses against companion animals and some dog-fighting offenses. For an overview of state animal cruelty laws, visit this publication by the Michigan Animal Legal and Historical Center. View the entire chapter of Ohio law on offenses to domestic animals, which includes the animal cruelty law and various penalty provisions, here.
Now that the Ohio legislature has enacted an implementation bill and Governor Strickland has announced board appointments, the Ohio Livestock Care Standards Board could soon begin developing standards for farm animal care in Ohio. Voters approved Issue 2, the constiututional amendment creating the Ohio Livestock Care Standards Board, in November of 2009.
Last week, the governor signed Issue 2's implementation bill (House Bill 414) after legislators wrangled with two different implementation proposals for more than two months. A primary point of contention was funding--H.B. 414 originally proposed an increase of the commercial seed and feed inspection fee and allowed the transfer of at least $500,000 annually from the commercial seed and feed fund to the livestock care standards fund. A Senate proposed bill, S.B. 233, would have provided the livestock care standards fund with $162, 280 transferred from the School Employees Health Care Board. Neither provision survived in the final enacted law, which instead requires the director of the Ohio Department of Agriculture to rely on existing funds within the department until the legislature appropriates money for the livestock care standards fund.
The final approved bill also establishes board member terms and vacancies, allows board member travel reimbursements but does not allow compensation, and requires the board to meet at least three times per year. The law requires the director of ODA to assist the board by hiring employees, submitting the board's proposed rules for approval, enforcing the rules and investigating potential rule violations. According to the law, the director must obtain permission to enter premises for inspection purposes.
Two provisions in the law address animal identification and organic production--these provisions were in the Senate's version and were added to the final bill . The new law states that the Ohio Livestock Care Standards Board may not establish a statewide animal identification system and clarifies that standards of the USDA's national organic program will prevail if there is a conflict between the organic certification standards and the Ohio livestock care standards.
Despite recommendations to do so, the new law does not define the term "family farmer," but only reiterates the constitutional amendment's requirement that three of the board members shall be "family farmers." Nor does the legislature guide the board on the meaning of the "well-being" of livestock, which the board must address in its standards and rules. We hoped the new law would clarify whether "well-being" includes both physical and emotional well-being, an issue that could bring legal challenges in the future (see our earlier post on "Lessons from New Jersey"). The implementation law does define "livestock" as equine raised for any purpose and the following animals if raised for human food and fiber purposes: porcine (hogs), bovine (cattle, oxen, buffalo), caprine (goats), ovine (sheep), poultry, alpaca and llamas.
Soon after Govenor Strickland signed H.B. 414, he announced his appointments to the Ohio Livestock Care Standards Board. Information on the board appointments is available here. Once the speaker of the house of representatives and president of the senate each make one of the two final board appointments, the board can begin its work of developing standards for the care and well-being of livestock in Ohio.
Meanwhile, proponents of a second ballot initiative on farm animal welfare are currently circulating around the state seeking signatures to place another proposal on the November general election ballot. The proponents hope to tell the board, through a second constitutional amendment, a few standards that it must adopt, which includes prohibitions on certain types of confinement, requirements for humane killing of cows and pigs and restrictions against the sale or transport of downer cows. See our earlier post on "Ohio may see a second constitutional amendment on farm animal welfare."
Not surprisingly, a group called Ohioans for Humane Farms has requested a petition initiative certification from the Ohio Attorney General that could place a second proposed consititutional amendment on farm animal care before Ohio voters this fall. Ohioans approved "Issue 2" last fall, a constitutional amendment that created the Ohio Livestock Care Standards Board to create standards for the care and well-being of farm animals (see earlier posts.)
The current petition certification request for a new initiative, submitted January 27 and signed by over 1,000 Ohio electors, requests approval to circulate a petition that proposes amending the Constitution to require the newly created Ohio Livestock Care Standards Board "to adopt certain minimum standards that will prevent the cruel and inhumane treatment of farm animals, enhance food safety, and strengthen Ohio farms."
The petition's proposed constitutional amendment goes beyond the expected prohibitions on confinement of pregnant pigs, laying hens and veal calves that farm animal welfare advocates have advanced in other states, but it does not conflict with the language enacted by Ohio's Issue 2. According to the proposed ballot initiative, the minimum requirements the Ohio Livestock Care Standards Board would be required to adopt include:
- Prohibition of the confinement of veal calves, pregnant pigs and egg-laying hens on a farm, for all or the majority of any day, in a way that prevents the animal from lying down, standing up, fully extending his or her limbs, or turning around freely. There are exceptions for scientific or agricultural research; veterinary treatments; rodeo, fair, or other exhibitions; 4-H and similar programs; during slaughter; or for pregnant pigs, in the seven days prior to giving birth. A "farm" is land, buildings and equipment used for the commercial production of animals for food an fiber.
- Requirements that all killings of cows and pigs be performed in a humane manner using methods deemed "acceptable" by the American Veterinary Medical Association, and prohibition of any killing of cows and pigs by strangulation.
- Prohibitions against the sale, transport or receipt for use in the human food supply of any "downer" cow or calf that is too sick to stand or walk.
- Misdemeanor charges for any violation of the standards developed by the Livestock Care Standards Board, punishable by up to one year of jail and/or $1,000.
If passed by Ohio voters, the proposed constitutional amendment would take effect within six years of the date of its adoption.
The Ohio Attorney General must act on the initiative petition by February 5, 2010. If the Attorney General certifies that the petition's summary contains a fair and truthful statement of the proposed amendment, the petition goes to the Ohio Ballot Board, who must ensure within ten days that the proposal contains only one constitutional amendment. If approved, the Attorney General files the petition with the Secretary of State, and the proponents may then begin collecting signatures on the petition. The number of valid signatures required to place the initiative on the ballot is at least 10% of the number of votes cast for governor in the last election (total votes for governor in 2006 were 4,022,928). At least 44 of Ohio's 88 counties must be represented with signatures from at least 5% of each county's votes cast for governor in the last election. The proponent must file the petitions by June 30, which is 125 days before the date of the general election date of November 2, and the proponent will have ten days to correct the insufficiency of signatures after a determination by the Secretary of State.
According to a press release issued by the Humane Society of the United States, the ballot proposal by Ohioans for Humane Farms is supported by The Humane Society of the United States, Farm Sanctuary, Ohio Society for the Prevention of Cruelty to Animals, Toledo Area Humane Society, Geauga Humane Society, Ohio League of Humane Voters, Center for Food Safety, United Farm Workers, Consumer Federation of America and Center for Science in the Public Interest.
View the initiative petition for the Livestock Board Amendment on the Ohio Attorney General's website at http://www.ohioattorneygeneral.gov/Legal/Ballot-Initiatives.
The recent passage of Issue 2 in Ohio (see earlier posts) will eventually lead to the establishment of an Ohio Livestock Care Standards Board, which will have the responsibility to develop standards for the care and well-being of livestock. While the process is new for Ohio, we're not the first state to develop farm animal care standards.
In 1995, the New Jersey legislature directed its Department of Agriculture to develop "standards for the humane raising, keeping, care, treatment, marketing, and sale of domestic livestock; and rules and regulations governing the enforcement of those standards." Nine years later, the agency finalized its regulations for the "Humane Treatment of Domestic Livestock." The regulatory program defines acceptable and prohibited practices for feeding, watering, keeping, marketing, sale, care and treament of cattle, horses, poultry, rabbits, small ruminants, and swine. The program establishes an investigation and enforcement process that includes a complaint procedure and investigation by Certified Livestock Inspectors.
Soon after final publication of the New Jersey regulations, a group of animal welfare organizations, consumers and farmers filed a lawsuit challenging the rules. The group included the Humane Society of the United States, Farm Sanctuary, the American Society for the Prevention of Cruelty to Animals and the Center for Food Safety.
The lawsuit attacked the regulations from several directions. The regulations allowed the use of "routine husbandry practices," defined as "techniques commonly taught by veterinary schools, land grant colleges, and agricultural extension agentsfor the benefit of animals, the livestock industry, animal handlers and the public health and which are employed to raise, keep, care, treat, market and transport livestock, including, but not limited to, techniques involved with physical restraint; animal handling; animal identification; animal training; manure management; restricted feeding; restricted watering; restricted exercising; animal housing techniques; reproductive techniques; implantation; vaccination; and use of fencing materials, as long as all other State and Federal laws governing these practices are followed." The lawsuit claimed this definition to be impermissibly broad and an improper delegation of the agency's authority.
The lawsuit also challenged specific practices permitted by the rules, including tail docking of cattle; castration, de-beaking, and toe-trimming without anesthesia; crating; tethering; and transporting sick cattle to slaughter. The plaintiffs claimed that the practices are not supported by sound science and are not "humane," as required by the New Jersey legislature's original directive.
The New Jersey Superior Court heard the case and upheld the agency's regulations. The animal welfare groups filed for a review by the New Jersey Supreme Court, and the court issued a decision in July, 2008.
Neither side won a complete victory. While the Supreme Court of New Jersey refused to reject the entire body of regulations, it did strike down the definition of "routine husbandry practices" for being overly broad, not based on a careful determination of the practices being taught by schools and colleges, and not based on a determination of whether the practices are "humane." The court also invalidated the regulation's endorsement of tail docking for cattle, questioning whether the practice itself is humane but concluding that the agency could not provide support for the necessity of the practice. In its examination of castration, de-beaking and toe-trimming, the court noted that scientific evidence would support the agency's acceptance of the practices, but the agency's reference within the rules that the practices should only be "performed in a sanitary manner by a knowledgeable individual and in such a way as to minimize pain" was vague and could not ensure that the practices would be "humane." In regards to the rule's allowance of crating, tethering and transporting of sick cattle, the court upheld the rules by concluding that the agency had relied upon its own techical expertise as well as a wide array of scientific studies before determining that the practices are beneficial and humane.
The Supreme Court sent the regulations back to the New Jersey Department of Agriculture for revisions consistent with the court's opinion. Rumour suggests that the department does not currently have appropriate funding to conduct a review and revision of the regulations. Because the rules were to expire in June of 2009, the governor of New Jersey exercised his authority to extend the expiration date to December of 2010 to give the agency adequate time to revise the rules. In the meantime, the regulations remain in effect except for those specific provisions struck down by the Supreme Court.
The New Jersey situation provides a few lessons for Ohio as we embark upon creating the Ohio Livestock Care Standards Board and a livestock care regulatory program, as authorized by Issue 2. Undoubtedly, interests similar to those who filed the New Jersey lawsuit will be watching, commenting upon, and possibly challenging any regulations proposed by the board and the Ohio Department of Agriculture (ODA). While Issue 2 did not include New Jersey's "humane" language, it does create a similar benchmark by calling for the establishment of "standards governing the care and well-being of livestock and poultry." A standard developed by the board thus must be consistent with an animal's "well-being" and be based upon evidence or expertise supporting a relationship to "well-being." Issue 2 does not legally define "well-being," a void the legislature may want to consider in its implementing legislation for Issue 2. As for specifying acceptable practices such as de-beaking or tail-docking, the New Jersey analysis illustrates a basic premise of administrative law--that a court will defer to an agency that can demonstrate technical expertise and a sound basis for its decision.
New Jersey's experience also teaches us that a court may not support adoption of customary livestock management practices taught in our universities and educational programs without a comprehensive review of the practices and an inquiry into whether the practices support an animal's "well-being." Such a stipulation might also apply to adoption of accepted industry or association standards. Likewise, a regulatory scheme that aims to ensure well-being by deferring generally to a livestock handler's knowledge level or handling practices may not survive a legal challenge. The New Jersey court voided such regulations for failing to contain detailed definitions and objective criteria against which to determine whether a person or his handling practices were sufficient. This presents Ohio with a question to ponder: should Ohio's standards include a training or certification program for livestock operators?
Ohio probably didn't expect to draw upon New Jersey's experience on this issue, but the New Jersey Supreme Court has aptly described the challenge now before Ohio:
"In part, the issues before this Court require us to evaluate the very methodology utilized by the Department in its creation of the challenged regulations; in part, the issues before us raise questions and debates arising from deeply held notions concerning the welfare of animals generally. Nonetheless, the dispute before this Court has nothing to do with anyone’s love for animals, or with the way in which any of us treats our pets; rather, it requires a balancing of the interests of people and organizations who would zealously safeguard the well-being of all animals, including those born and bred for eventual slaughter, with the equally significant interests of those who make their living in animal husbandry and who contribute, through their effort, to our food supply."
The New Jersey rules on the Humane Treatment of Domestic Livestock are in Title 2, Chapter 8 of the New Jersey Administrative Code, available at http://www.lexisnexis.com/njoal. The New Jersey Supreme Court's opinion in New Jersey Society for the Prevention of Cruelty to Animals v. New Jersey Dept. of Agriculture, 196 N.J. 366 (2008) is available at http://lawlibrary.rutgers.edu/courts/supreme/a-27-07.doc.html.