Ohio livestock care standards

By: Ellen Essman, Tuesday, January 29th, 2019

Nationwide, it seems as though “ag-gag” laws are being challenged and overturned left and right. “Ag-gag” is the term for laws that prevent undercover journalists, investigators, animal rights advocates, and other whistleblowers from secretly filming or recording at livestock facilities.  “Ag-gag” also describes laws which make it illegal for undercover persons to use deception to obtain employment at livestock facilities.  Many times, the laws were actually passed in response to under-cover investigations which illuminated conditions for animals raised at large industrial farms. Some of the videos and reports produced were questionable in nature—they either set-up the employees and the farms, or they were released without a broader context of farm operations. The laws were meant to protect the livestock industry from reporting that might be critical of their operations—obtained through deception and without context, or otherwise.    

Here in Ohio, we do not have an ag-gag law; instead we have the Ohio Livestock Care Standards, which are rules for the care of livestock in the state.  The rules are made by the Ohio Livestock Care Standards Board, which is made up of farmers, food safety experts, farmers’ organizations, veterinarians, the dean of the agriculture department from an Ohio college or university, consumers, and county humane society representatives. There are standards for the care of different species of livestock, as well as standards for euthanizing livestock, feeding and watering livestock, transporting livestock, etc. Violating the standards could lead to civil penalties.  Part of the thinking behind the Livestock Care Standards was that by bringing together farmers, veterinarians, and animal welfare representatives, among others, all sides would be represented, and therefore ag-gag laws and deceptive reporting could be avoided. The laws regarding the Ohio Livestock Care Standards can be found here, and the regulations here.

Kansas law challenged

 On December 4, 2018, the Animal Legal Defense Fund (ALDF), along with other animal and food safety organizations, filed a complaint against the state of Kansas, arguing that the state’s ag-gag law is unconstitutional on freedom of speech grounds. 

Kansas’ ag-gag law can be found in the Kansas Statutes, sections 47-1826, 47-1827, 47-1828 and 21-6604.    The law, among other things, makes it illegal, “without the effective consent of the owner,” to “enter an animal facility to take pictures by photograph, video camera or by any other means” with the “intent to damage the animal facility.”  The law also makes it illegal for someone to conceal themselves in order to record conditions or to damage the facility.  “Effective consent” cannot be obtained by “force, fraud, deception, duress, or threat,” meaning it is not permissible for an undercover whistleblower to apply for a job at an animal facility and work at the facility if they really intend to record and disseminate the conditions. 

 ALDF and their fellow plaintiffs argue that the Kansas ag-gag law violates the First Amendment guarantee of freedom of speech.  The plaintiffs argue that purpose of the Kansas law is to suppress certain kinds of political speech, namely the speech of animal rights activists and food safety organizations “because of their viewpoint and the content of their messages.”  The plaintiffs assert that “[t]he law ensures only [the livestock] industry’s side of the debate” is heard.  Furthermore, the plaintiffs argue that the Kansas law is overbroad in its attempt to limit freedom of speech, “prohibiti[ng] substantially more speech than the First Amendment permits.” The Kansas lawsuit is very similar to one in Iowa, where the judge recently overturned the state’s ag-gag statute.

Iowa law overturned

On January 9, 2019, James E. Gritzner, a U.S. District Court judge in the Southern District of Iowa found Iowa’s ag-gag law to be unconstitutional on First Amendment grounds.  Like the complaint in Kansas, this lawsuit was initiated by ALDF and other groups against the state of Iowa.  Gritzner’s decision is available here

Iowa’s law, which, as of this writing is still available here, makes it a crime to “[o]btain[] access to an agricultural production facility by false pretenses,” and/or “[m]ake[] a false statement or representation as part of an application or agreement to be employed at an agricultural production facility, if the person knows the statement to be false, and makes the statement with an intent to commit an act not authorized by the owner of the agricultural production facility, knowing that the act is not authorized.”

Much like the Kansas lawsuit discussed above, the plaintiffs in this case argued that Iowa’s law was content-based, viewpoint-based, and overbroad, and thus violated the First Amendment right to free speech.  Judge Gritzner agreed. 

Judge Gritzner used precedent to explain that “a free speech challenge proceeds in three stages. First, the Court resolves whether the challenged statute implicates protected speech.  If it does, the Court determines which level of scrutiny applies. Then, the Court applies the appropriate scrutiny and confirms whether the statute satisfies the applicable standard.”

 In this case, Gritzner found that the speech being implicated, “false statements and misrepresentations,” was protected speech, citing the Supreme Court to make his point: “one of the costs of the First Amendment is that it protects the speech we detest as well as the speech we embrace.”  In other words, even though the protected speech in this case consists of false statements, such speech is still protected under certain circumstances. 

Secondly, Judge Gritzner weighed in on the issue of scrutiny.  Here, it was a question of whether to apply strict scrutiny, which the plaintiffs argued should apply, or intermediate scrutiny, which the defendants favored. Strict scrutiny requires that the challenged law deals with a compelling state interest, and that the law is narrowly tailored to accomplish that interest. Intermediate scrutiny is a step down from strict scrutiny; it requires the law to serve an important government objective, and to be substantially related to realizing that objective.  Gritzner reasoned that it didn’t matter which level of scrutiny applied, because the Iowa law did not pass either one of the scrutiny tests.  

Finally, Gritzner explained why the Iowa statute did not satisfy either scrutiny standard.  Here, the state of Iowa argued that the law was meant to protect the “state’s interests of private property and biosecurity.” Judge Gritzner noted that private property and biosecurity were not the only reasons for the statute—at least one state senator had been quoted as saying that the bill was meant to stop groups from giving “the agriculture industry a bad name.” In addition, Gritzner reasoned that these interests were not “compelling,” pointing to case law that found similar interests—protection to animals, people, and property—did not fall under the “compelling” category.  Furthermore, Gritzner found that the statute was not “narrowly tailored,” because the language was not “actually necessary to protect perceived harms to property and biosecurity.” In other words, Gritzner thought it was a stretch to believe that someone giving a false statement or misrepresentation in order to access or become employed by an agricultural production facility is really related to property damage or biological harm.  Gritzner also pointed out that Iowa has protected against such harms elsewhere in its statutes in “content neutral” language that does not affect freedom of speech. The judge did not spend much time discussing intermediate scrutiny, instead he explained that the Iowa law is simply too broad, harm is unlikely, and the need to prohibit the lies is small, which can be interpreted to mean that the law does not serve an important government objective. 

Future not looking good for ag-gag laws

Several other states— including Idaho, Missouri, Montana, North Carolina, North Dakota, and Utah, have passed ag-gag laws similar to the laws in Kansas and Iowa.  However, the laws have also been overturned in several states. In January 2018, the Ninth Circuit Court of Appeals determined most of Idaho’s ag-gag law violated the First Amendment.  A federal district court in Utah also struck down Utah’s ag-gag law for violating freedom of speech.  A similar lawsuit against a North Carolina law is also in progress. The North Carolina lawsuit will be an interesting one to watch since the statute applies to other property owners, not just those involved in agriculture.  Time will tell whether the remaining state ag-gag laws meet constitutional muster.  Stay tuned to the Ag Law Blog for any future developments. 

Posted In: Animals
Tags: ag-gag, Ohio livestock care standards
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By: Peggy Kirk Hall, Wednesday, November 29th, 2017

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.

More information is also available in this press release recently published by the Ohio Department of Agriculture and on the website for Ohio’s Livestock Care Standards, which is here.

By: Peggy Kirk Hall, Thursday, March 09th, 2017

Written by:  Ellen Essman, Law Fellow, OSU Agricultural & Resource Law Program

While livestock producers in Ohio have been subject to standards for the care of livestock since 2011, animal welfare remains a topic of debate around the country. Most recently, attention turned to the care of livestock raised under the National Organic Program and animals raised in confinement in Massachusetts.   In this post, we examine the proposed federal organic standards and a livestock care ballot initiative passed in Massachusetts.  The discussion provides an opportunity to take a look at the status of Ohio's livestock care standards.   

Federal Organic Standards

On January 19, 2017, the USDA’s Agricultural Marketing Service (AMS) promulgated a final rule for the National Organic Program (NOP).  The rule concerns practices for organic livestock and poultry.  Namely, the rule “clarifies how producers and handlers participating in the NOP must treat livestock and poultry to ensure their wellbeing.”  These treatment standards are applicable at numerous times throughout the lives of livestock, including when the animals are transported or slaughtered.  Additionally, the rule spells out the amount and type of indoor and outdoor space organic poultry must have under NOP.  The rule also describes the timing and methods for physically altering livestock and poultry under NOP.  The rule allows “[p]hysical alterations…only…for an animal’s welfare, identification, or safety.”  For example, the rule limits the use of teeth clipping and tail docking in pigs, and prohibits the de-beaking of chickens or face branding of cattle.  Many other banned and limited alterations are spelled out in the rule, as well as provisions that require active monitoring of animal health and treatment of injuries, sicknesses, and diseases.  The rule was originally supposed to become effective on March 20, 2017.  The Trump Administration, however, has since instituted a regulatory freeze in order to review recently made regulations.   In response to the regulatory freeze, AMS pushed back the effective date to May 19, 2017.  Barring any decisions by the new administration to the contrary, the rule should become effective on that date.  More information concerning this final rule is available here.

Massachusetts voters approve livestock confinement ballot initiative

Some states have taken it upon themselves to address various aspects of animal welfare.  This past Election Day, Massachusetts passed Question 3, a ballot initiative concerning confinement of livestock.  Question 3, also called the Prevention of Farm Animal Cruelty Act, applies to farm owners and operators who raise breeding pigs, veal calves, and egg-laying hens within the state, and also to business owners and operators who sell products from such livestock within the state.  When the Act becomes effective on January 1, 2022, this will mean that any farmers or businesses selling their pork, veal, or eggs in Massachusetts, even if they are not physically located within the state, would have to comply with the state’s confinement rules.  The law prohibits the aforementioned livestock being “confined in a cruel manner,” meaning that the animals cannot be “confined so as to prevent [them] from lying down, standing up, fully extending [their] limbs, or turning around freely.”  There are certain exceptions to this rule, including during transport, at fairs, during a veterinary examination, etc.  When the Act goes into effect, violators will face a $1,000 civil fine per violation, and/or an injunction

Ohio Livestock Care Standards

As many will remember, Ohio has its own laws and regulations concerning livestock welfare.  Voters passed an amendment to the Ohio Constitution in 2009.  The amendment created the Ohio Livestock Care Standards Board, which was tasked with creating the actual “care standards” for livestock animals in the state.  The first of these “livestock care standards,” or rules, became effective on September 29, 2011.  Standards exist for different types of livestock and cover everything from acceptable euthanasia practices for each species, to the provision of food and water, to acceptable methods of transportation.  The board continues to meet regularly to review the care standards.

The regulations on livestock care include an investigation process initiated by complaints on potential violations of the standards.  Since the standards became effective, the Ohio Department of Agriculture has received a number of complaints and works with operators to bring them into compliance if the agency finds a violation. According to Farm and Dairy, there were 51 such investigations in 2012, 29 in 2013, and 23 in 2014.  In 2015, there were 33 investigations—23 of which resulted in no violations of the standards.   Producers can learn more about the livestock care standards at http://www.agri.ohio.gov/LivestockCareStandards.

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