Copyright University of Dayton Law Review Fall, 2001 (reprinted with permission)

Comment

Amy Mosel [FNa1]

Copyright © 2001 by University of Dayton Law Review; Amy Mosel

TABLE OF CONTENTS

                                                                                       PAGE 

  I.  INTRODUCTION ......................................................................................................................................................... 135                                                                             

 II.  BACKGROUND ........................................................................................................................................................... 137  

      A.  Past and Current Animal Welfare Laws Fail to Protect Factory Farm Animals From Inhumane Living Conditions ......... 138  

          1.  State Lawmakers Have Not Addressed the Daily Living Conditions of Factory Farm Animals ................................... 138  

          2.  Existing Federal Animal Welfare Statutes Fail to Address the Daily Living Conditions of Factory Farm Animals .......  139  

              a.  The 28-Hour Law Protects Animals During Transportation Only .......................................................................... 139  

              b.  The AWA Protects Animals Kept For Research and Exhibition From Inhumane Treatment By Providing 

                    Requirements for Their Daily Living Conditions, But Specifically Excludes Farm Animals From Protection ......... 140  

              c.  The Humane Methods of Slaughter Act Protects Livestock From Inhumane Slaughter, But Fails to Protect 

                   Livestock From Inhumane Daily Living Conditions ............................................................................................. 142  

      B.  Factory Farm Animals Are Deprived of Humane Living Condition By an Unregulated Industry .................................... 144  

          1.  Smaller Family Farms That Provided for the Basic Needs of Farm Animals Have Been Largely Replaced 

               By Industrial Factory Farms That Ignore the Needs of Farm Animals ...................................................................... 144  

          2.  Living Conditions on Factory Farms are Horribly Inhumane .................................................................................... 146  

          3.  Factor Farmers Routinely Drug Factory Farm Animals With Drug-Laced Feed That Can Cause 

               Mutations and Antibiotic Resistance ...................................................................................................................... 149  

      C.  European Governments Have Enacted Legislation and Regulated Factory Farm Animals for Decades .......................... 150                                                                          

III.  ARGUMENT ................................................................................................................................................................ 150  

      A.  Congress Should Regulate Factory Farming Because Humans Are Concerned 

            With Preventing the Unnecessary Suffering of Animals .............................................................................................. 151  

          1.  The Legislative Purpose Behind Other Federal Animal Protection Statutes Evidences Congressional 

               Intent to Prevent Unnecessary Suffering and a Concern for Animal Welfare ............................................................. 151  

              a.  Animal Welfare Statutes Were Created In Response to the Public Outcry Against Animal Cruelty Practices .......... 152  

              b.  Legislators Are Concerned With Close Confinement Practices In the Non-Farm Animal Context .......................... 153  

              c.  The Federal Animal Welfare Statutes Express the Purpose of Treating Non-Farm Animals Humanely .................... 155  

          2.  The Public Is Concerned With Humans Destroying and Harming the Natural Environment 

               and With Harming Animals Specifically .................................................................................................................. 158  

          3.  The Booming Organic Food Industry Proves That Consumers and Producers Are 

               Willing to Shift Towards More Humane Methods of Farming .................................................................................. 159  

      B.  Congress Should Regulate Factory Farming Because Factory Creates Dangerous Health Risks for Humans ................. 161  

          1.  The Administration of Sub-Therapeutic Doses of Antibiotics Endangers Human Health ............................................ 161  

              a.  Continuous Exposure to Antibiotics Contributes to the Growing Problem of Antibiotic Resistant Bacteria ............. 162  

              b.  Antibiotic Resistant Bacteria, When Transmitted to Humans, Will Be Untreatable ................................................. 163  

          2.  Congressional Response Is Warranted Because Many Health Organizations Around the World Have 

               Warned Against Administration of Sub-Therapeutic Doses of Antibiotics ................................................................ 165  

          3.  Congressional Regulation Is Warranted Because There Are Effective Alternatives to the Constant 

               Administration of Antibiotics on the Farm ............................................................................................................... 167  

          4.  Factory Farming Exposes Humans to Unhealthy Toxins Created From Massive Amounts of Waste .......................... 168  

      C.  Congress Should Regulate Factory Farming Because Other Countries Have Already Enacted 

            Legislation to Protect Farm Animals .......................................................................................................................... 169  

          1.  The European Union Has Enacted Legislation Providing for the Humane Treatment of Farm Animals ........................ 170  

              a.  The European Council Directive for the Protection of Animals Kept for 

                   Farming Purposes Provides for the Humane Treatment of Farm Animals in General ............................................. 170  

              b.  Other European Union Laws Providing for the Humane Treatment of 

                   Farm Animals Address the Needs of Individual Species of Farm Animals ............................................................ 171  

          2.  The United Kingdom Has Enacted Legislation Providing for the Humane Treatment of Farm Animals ....................... 174  

      D.  Congress Should Regulate Factory Farming Because Providing Protection for 

             Farm Animals Would Not Harm the National Economy ............................................................................................. 176  

          1.  Regulations On Factory Farming Would Not Harm the Economy 

               Because Regulations Will Not Disadvantage the Family Farmer ................................................................................ 176  

          2.  Regulations On Factory Farming Would Not Harm the National Economy 

               Because the Benefits of a Compassionate System Outweigh the Burdens .................................................................. 178  

      E.  Congress Should Regulate Factory Farming Because State Anti-Cruelty Legislation 

            Has Failed to Protect Farm Animals Adequately . ....................................................................................................... 179  

 IV.  PROPOSAL ................................................................................................................................................................. 181  

      A.  Proposed Farm Animal Welfare Legislation Should Establish Minimum Requirements 

           Farmers Must Follow In Raising Farm Animals ....................................................................................,...................... 181  

      B.  Proposed Farm Animal Welfare Legislation Should Direct the Secretary of Agriculture to Enforce the Statute ............... 184                                                                     

  V.  CONCLUSION ............................................................................................................................................................ 186  

I. INTRODUCTION

[W]e are ignorant of the abuse of living creatures that lies behind the food we eat. Our purchase is the culmination of a long process, of which all but the end product is delicately screened from our eyes ... There is no reason to associate a neat plastic package with a living, breathing, walking, suffering animal. [FN1]

As the average consumer sinks his teeth into a piece of meat, it is unlikely that he thinks about how that meat got to his plate. Decades ago, we could be comforted that the animals that were slaughtered to make our meals lived out their albeit short lives on a family farm among their species where they had ample living and roaming space, enjoyed natural sunlight and remained free from abuse. Sadly, today, the family farm is a rarity and corporate America has transformed many rural farms into factory assembly lines where profit takes precedent over even minimal humane standards of animal care. [FN2] Today, many consumers would rather be kept in the dark as to the horrific process that transforms a living animal into food.

Animals raised on the factory farm are treated like mere economic units, or widgets, as if they have no life, breath, nerves or feelings. These sad creatures live out their lives packed together by the thousands, confined in unacceptable living spaces without room to even comfortably turn their bodies or lie down. [FN3] They are often kept in perpetual darkness, drugged and subjected to painful body alterations without anesthetics. [FN4] These inhumane conditions promote disease and stress, which in turn cause abnormal behavior, such as cannibalism and aggression, in normally passive animals.

Farm animals raised for food production have no fate other than the slaughterhouse, yet this final purpose does not mean that while alive farmers should treat them as inanimate objects and deprived of the most basic needs. In the past, public outcry against similar animal abuses outside of the farming industry has prompted Congress to protect animals by statute. Most progressive European countries have statutes protecting farm animals by regulating their living conditions. [FN5] Though farm animals number in the millions and live under more deplorable daily conditions than other animals that Congress has afforded statutory protection, Congress has overlooked them and they remain unprotected. As a result, Congress has given no incentive to the factory farm industry to discontinue its despicable practices.

This Comment will focus on the type of animal cruelty that deprives factory farm animals of humane living conditions. It will describe the birth of animal protection laws. It will explain the purpose that motivated and supports existing statutes that protect other animals -- that being the humane treatment of animals -- and the statutes' administration and enforcement. This Comment will describe the daily living conditions of factory farm animals. Next, this Comment presents the reasons that would motivate Congress to act, including Congressional humane concerns in similar instances of animal abuse that are, in part, a response to public outcry and a booming organic food industry that shows the public is concerned with the treatment animals receive before processing. In addition, there are immediate human health concerns over the public consumption of food raised under intensive, factory farm conditions. Administering feed laced with sub-therapeutic doses of antibiotics [FN6] creates antibiotic resistant strains of bacteria that are capable of transmission to humans.

Other countries have already enacted statutes that specifically protect factory farm animals. One economic argument in favor of restrictions on factory farm practices is animals that lead happier lives produce better quality food for human consumption. [FN7] Because factory farms are big businesses, factory farms should be treated like other big businesses and subjected to health and safety regulations. State anti-cruelty statutes exist, but are inadequate protection for factory farm animals.

This Comment will propose a federal statute with suggested minimum requirements for the living conditions of animals raised in intensive environments. To this end, this Comment will compare the proposed statute to other federal statutes and foreign statutes that promulgate humane standards for the treatment of animals. Finally, this Comment will discuss the enforcement and administration of such a statute. The Commerce Clause of the United States Constitution gives Congress the authority to enact such a statute because animals raised for food substantially affect commerce. [FN8] Congress could follow the administration and enforcement of existing protective statutes, authorizing the Secretary of Agriculture to oversee and create an agency to implement guidelines and enforce compliance.

II. BACKGROUND

Factory farm animals existing circumstances must be understood. This Section will explain that: (A) past and current animal welfare laws fail to protect factory farm animals from inhumane living conditions; (B) factory farm animals are deprived of humane living conditions by an unregulated industry and (C) European governments have enacted legislation and regulated factory farm animals for decades.

A. Past and Current Animal Welfare Laws Fail to Protect Factory Farm Animals From Inhumane Living Conditions

Animals have received some form of protection against abuse since 1641. [FN9] Though early laws protecting animals did so to protect man's interest in his property, some laws have evolved to consider the needs of animals themselves. However, though animal protection laws have evolved in other areas, (1) lawmakers have not addressed factory farm animals' daily living conditions and (2) existing federal animal welfare statutes fail to address factory farm animals' daily living conditions.

1. State Lawmakers Have Not Addressed the Daily Living Conditions of Factory Farm Animals

Providing inadequate living conditions to dependent living creatures is a form of abuse. Abuse, neglect or deprivation each constitutes inhumane treatment of animals. [FN10] Abuse is the maltreatment of animals and can consist of beatings or torture. [FN11] Neglect is the failure of humans to insure the health of animals that are unable to fend for themselves because humans confine them, such as when animals are denied adequate, life-sustaining necessities such as food, water and air. Deprivation, the focus of this Comment, is the denial of other environmental needs that do not necessarily sustain life but do affect animal welfare, such as overcrowding and lack of natural light. The Secretary of Agriculture has stated that animals may be harmed when essential behavioral patterns have been significantly modified and actual injury or death results. [FN12]

Animals have gradually received more protection from abuse. In 1641, a Puritan writing, Body of Liberties, contained a provision making it illegal to exercise tyranny or cruelty toward any creatures kept for human use, making Massachusetts the first government in America to enact anti-cruelty legislation. [FN13] In response to public beating of domestic animals, in 1822 the English Parliament passed Martin's Act, which criminally punished the cruel or careless beating of farm animals, including cattle, sheep and mules. [FN14] The Society for the Prevention of Cruelty to Animals was created soon after, pushed forward by reformers active in women's suffrage and slave abolitionist movements. Initially focusing on the protection of domestic animals, the Society later expanded its focus to animal experimentation cruelties. [FN15]

In 1828, New York enacted anti-cruelty legislation, making it illegal to maliciously kill, wound or torture farm animals, such as horses, oxen, cattle or sheep. [FN16] By 1907, every state had an anti-cruelty statute of some sort. In theory, modern state anti-cruelty statutes protect animals. However, there are no statutes that specifically protect farm animals and loopholes and exceptions in existing laws allow farm animals to remain unprotected. [FN17]

2. Existing Federal Animal Welfare Statutes Fail to Address the Daily Living Conditions of Factory Farm Animals

Three statutes primarily focus on animal welfare. The (a) Twenty-Eight Hour Law ("28-Hour Law"); (b) Animal Welfare Act ("AWA") and (c) Humane Methods of Slaughter Act of 1978 ("Humane Methods of Slaughter Act") protect animals during transport, research and slaughter, respectively. [FN18]

a. The 28-Hour Law Protects Animals During Transportation Only

The 28-Hour Law protects animals during transportation within the United States or a territory of the United States, with specific rules on confinement. [FN19] The 28-Hour Law does not set requirements for the daily living conditions of animals that are not being transported. The statute reads in part:

[A carrier transporting animals] may not confine animals in a vehicle or vessel for more than 28 consecutive hours without unloading the animals for feeding, water, and rest .... Animals being transported shall be unloaded in a humane way into pens equipped for feeding, water, and rest for at least 5 consecutive hours. [FN20]

The species of animals covered by the 28-Hour Law are not enunciated, but should be construed broadly because the general term animals replaced the original phrase "cattle, sheep, swine, or other animals." [FN21] If the animals have sufficient space within the carrier to rest, move around, eat and drink, unloading is not necessary. [FN22]

The purpose of the statute is to ensure that livestock in transport are fed, watered, and rested at least once within the prescribed time. [FN23] Having an opportunity to rest means that animals must be able to lie down. [FN24] Transporters must provide "sufficient space for all the livestock to lie down at the same time." [FN25] Floors are to be constructed of "concrete, cinders, gravel, hard-packed earth, or other suitable material." [FN26] The Department of Agriculture is the agency in charge of inspecting rest stations to ensure compliance. [FN27] Thus, while the 28-Hour Law protects transported animals, it offers no protection for the factory farm animals' daily living conditions.

b. The AWA Protects Animals Kept For Research and Exhibition From Inhumane Treatment By Providing Requirements For Their Daily Living Conditions, But Specifically Excludes Farm Animals From Protection

The AWA narrowly protects animals kept for research or exhibition and does not reach the mass of animals living on factory farms. The AWA protects animals kept for research, experimentation or exhibition purposes. [FN28] Animals covered under the AWA include dogs, cats, monkeys and any other nonhuman primates, guinea pigs, hamsters, rabbits or other warm blooded animals the Secretary of Agriculture determines are being used for research, exhibition or as pets. [FN29] The AWA explicitly denies coverage to farm animals. The AWA covers any facility performing or intending to perform experiments or research if that organization has purchased animals in commerce or received funds from the United States for the purpose of carrying out research. Also, the AWA covers any person or entity exhibiting animals if that person or entity either purchased animals in commerce or intended to distribute animals in such a way that they will affect commerce. For example, the AWA covers zoos, carnivals and circuses. However, the AWA does not cover retail stores, fairs and rodeos. The statute reads in part:

Congress ... finds ... it ... essential to regulate ... the transportation, purchase, sale, housing, care, handling, and treatment of animals by carriers or by persons or organizations engaged in using them for research or experimental purposes or for exhibition purposes or holding them for sale as pets or for any such purpose or use. [FN30]

The Secretary of Agriculture is authorized to create humane standards for the care of animals living under these conditions that should include, at minimum, requirements for "handling, housing, feeding, watering, sanitation, ventilation, shelter ... adequate veterinary care, and separation ... [when] necessary; ... for exercise of dogs ... for a physical environment adequate to promote the psychological well-being of primates," and for treatment that ensures animal pain and distress are minimized. [FN31] The principal researcher conducting any experiments must consider alternatives to procedures that have even the possibility of causing the animal pain or distress. [FN32] The primary focus of the AWA is the quality of an animal's life and living conditions directly affecting its psychological well-being, pain and distress. [FN33]

Amendments to the initial AWA show an increased and continuing concern for the humane treatment of animals. Congress was concerned with existing transporter and handler abuses, and wanted to protect national values from such dehumanizing activities. [FN34] The 1970 amendment explicitly addressed concerns with "the humane ethic that animals should be afforded the basic creature comforts of adequate housing, ample food and water, reasonable handling, decent sanitation, sufficient ventilation, shelter from extremes of weather and temperature, and adequate veterinary care ...." [FN35] The 1970 amendment extended the definition of animal and the scope of entities affected by the AWA and the 1976 amendment further extended the scope. [FN36] The term animals were broadened to include most warm-blooded animals and the Secretary of Agriculture's powers increased. [FN37]

c. The Humane Methods of Slaughter Act Protects Livestock From Inhumane Slaughter, But Fails to Protect Livestock From Inhumane Daily Living Conditions

The Humane Methods of Slaughter Act protects animals during slaughter from unnecessary suffering by requiring certain methods of slaughter. [FN38] The Humane Methods of Slaughter Act's purpose is to prevent needless suffering. [FN39] The statute reads in part:

No method of slaughtering or handling ... shall be deemed to comply with the public policy of the United States unless it is humane. Either of the following ... are hereby found to be humane:

(a) in the case of cattle, calves, horses, mules, sheep, swine, and other livestock, all animals are rendered insensible to pain by a single blow or gunshot or an electrical, chemical or other means that is rapid and effective, before being shackled, hoisted, thrown, cast, or cut; or

(b) by slaughtering in accordance with the ritual requirements of the Jewish faith or any other religious faith that prescribes a method of slaughter whereby the animal suffers loss of consciousness by anemia of the brain caused by the simultaneous and instantaneous severance of the carotid arteries with a sharp instrument and handling in connection with such slaughtering. [FN40]

The Humane Methods of Slaughter Act was the result of public outrage against animal abuse in meat packing plants. [FN41] Congress responded by enacting a statute that promoted humane methods of slaughter, determining that the methods embodied in the statute were humane. [FN42] Congress found that slaughtering animals in a humane manner resulted in safer working conditions for slaughterhouse employees, improved products and economies in operation, and prevented needless suffering. [FN43]

B. Factory Farm Animals Are Deprived of Humane Living Conditions By an Unregulated Industry

The law affords legal protection to other animals living under similar conditions, while protection for factory farm animals remains non-existent at both the federal and state level. [FN44] The 28-Hour Law narrowly governs only the humane treatment of animals in transport and the Humane Methods of Slaughter Act narrowly regulates only the act of slaughter. The only statute today that applies to daily living conditions of any animal is the AWA, but it explicitly excludes farm animals from protection in its definition of animal. [FN45] This exclusion permits the cruel treatment of farm animals. Large corporations that are not governed by any animal welfare laws have taken over the farming industry and they treat animals as mere economic units, subject them to horrid living conditions and lace their food with daily drug doses.

This section will explain: (1) the transformation of the family farm to factory farms; (2) the living conditions factory farm animals endure and (3) the habitual drug lacing of factory farm animals' feed.

1. Smaller Family Farms That Provided for the Basic Needs of Farm Animals Have Been Largely Replaced By Industrial Factory Farms That Ignore the Needs of Farm Animals

Before 1940, animals raised for food production were primarily raised on small family farms. [FN46] Outdoor pastures and sunlight fulfilled animals' needs and provided benefits for the small farmer, such as natural disease control and an unlimited natural supply of vitamin D for the animals. [FN47] In the last half-century, large corporations have purchased the majority of available farmland, pushing the small farmer out, and turning farming into a commercial enterprise. [FN48]

The United States has changed from a rural to an urban land. [FN49] Less than a century ago, eighty percent of the population was employed in some form of agriculture. [FN50] Today, that percentage has drastically decreased to two percent and most people are two or three generations removed from agricultural occupations. [FN51] Though world population and the demand for food are increasing, the few but larger farms of today will meet this demand. [FN52] Small farms cannot compete with industrial factory farms and there is little incentive for anyone to go into the agricultural field. [FN53] The "industrialization of agriculture" has allowed further transformation of the family farm into the factory farm -- large, concentrated operations raising animals outside of their natural habitat solely for food production, in an automated manner. [FN54]

Factory farming is a method of raising livestock characterized by overcrowding, restricted movement, unnatural diets, and unanesthetized surgical procedures .... The factory farm is indeed a far cry from the notion of a peaceful, bucolic farm, on which some might believe most food animals are raised. [FN55]

These large confinement facilities create "stressful, sickly and grotesquely inhumane existences." [FN56] Animals are treated as mere economic units that must be multiplied, while living space is minimized in order to maximize profit. [FN57] In some cases, over five million animals could be raised in small, overcrowded cages. [FN58]

Confined living conditions cause abnormal, aggressive behaviors, sometimes even cannibalism in these animals. [FN59] The animals become stressed, weak and more susceptible to disease. [FN60] Instead of creating more space for the animals, factory farmers opt to lace their food with sub- therapeutic doses of antibiotics to ward off the inevitable spread of infectious disease or other health problems. The animals are further subjected to genetic engineering experimentation, embryo transfers and the injection of growth hormones. [FN61]

2. Living Conditions On Factory Farms Are Horribly Inhumane

The conditions at factory farms reflect the fact that they are unregulated. There is presently no law that stops factory farmers from crowding, mutilating and neglecting their stock. The living conditions provided for chickens are examples of the inhumane treatment factory farm animals endure.

Chickens are hatched out of incubators. [FN62] The females and males are separated because the farmers want the eggs from laying hens and males cannot produce eggs. Useless males are casually dumped into plastic garbage bags where they "suffocate under the weight of other chicks dumped on top of them." [FN63]

Each coop contains around 80,000 chickens. [FN64] Each cage averages one cubic foot to four and one half cubic feet, and contains four to nine chickens each. [FN65] In essence, this confines the animals in something no larger than a cat carrier. The chickens cannot turn around easily and may spend their entire lives without even fully stretching their wings. [FN66] Some farmers keep the chickens in darkness for much of their lives to keep them calm. Other farmers use artificial light that remains on constantly to keep egg production continuous. When the excrement removal system is inadequate and the ventilation is poor, high concentrations of ammonia fill the air, causing the chickens to suffer nausea, eye irritation and respiratory degeneration. The wire-bottom cages cause sores and feather shedding when chickens groom and rub against them. Chickens naturally scratch the ground and have nowhere to do so. As they grow, their toes get caught in the wire and actually adhere to it, growing around it. [FN67]

The stressful conditions in which chickens live cause cannibalistic behavior. [FN68] One industry specialist has stated such behavior is "a result of 'overcrowding, lack of adequate feeder or waterer space, poor ventilation, dietary deficiencies, feather change, improper lighting, failure to remove injured or crippled birds and sheer boredom."' [FN69] The mortality rate for chickens living on the factory farm is very high. [FN70] Ten to fifteen percent of chickens die each year as a direct effect of the living conditions on a factory farm. [FN71] While laying hens raised under normal conditions have a life span of twenty years, factory farm laying hens generally live only one or two years.

Broiler hens [FN72] are kept in similar conditions as laying hens. [FN73] The factory farmer's purpose of raising broiler hens is to fatten them up for slaughter and then sell them for food. Hens are kept under warm lights to encourage feeding until they reach market weight and thereafter are kept in the dark until it is time for slaughter. Genetically altered strains of growth hormones have been developed and injected into the chickens. [FN74] Hormones, which may cause the chickens to grow too fast, can mutate chickens so badly that they cannot walk or even stand up.

As a further example of inhumane treatment, veal calves are taken from their mother before they are even weaned and then fed with vitamins and powdered milk. [FN75] They are deprived of drinking water and solid food at times to encourage the starving animals to eat drug-laced formulas the animals instinctively do not want, in order to increase body weight. [FN76] They are purposefully kept anemic, their diet intentionally void of iron, so that their flesh will be lighter and more alluring to consumers. Hundreds of thousands of veal calves live chained in wooden crates so small they cannot walk, turn around or even move. [FN77] The standard crate at the factory farm measures twenty-two inches wide, the confinement preventing their muscles from turning a healthy, reddish brown or from burning too many calories. [FN78] The confinement also forces the calves to stand in their own excrement, breathing harmful ammonia gasses. [FN79] Factory farm conditions make them susceptible to intestinal problems and respiratory disorders such as pneumonia. [FN80] About ten percent of factory farm calves die before they have a chance to be slaughtered and that percentage would be much higher if not for antibiotics that keep them alive. [FN81]

The standard sow barn is 340 feet by 60 feet, holding 1076 crates. [FN82] Pregnant sows are isolated in "gestation crates" which prevent them from walking or turning around. [FN83] When ready to give birth, a sow is moved to a crate large enough for her to lie down and stand up, but not to turn. Once a sow has had her piglets, an iron maiden is sometimes used to keep the sow completely still, so that she cannot roll over and accidentally crush her piglets. [FN84] The sensory overload of sounds and smells in the packed barns can cause a sow to become confused and unable to recognize the smell or sound of her own piglets. This may cause the sow to crush the piglets because she cannot see them.

When the piglets are old enough, they are transferred to their own crates, which have concrete or slatted floors, sometimes sloped to make waste disposal easier for the farmer. These hard floors sometimes cause leg and foot injuries. The narrow, metal crates are barely larger than piglet bodies. [FN85] The barn is akin to an assembly line, food being dispensed to the animals through automated overhead dispensers with a tube for water.

3. Factory Farmers Routinely Drug Factory Farm Animals With Drug-Laced Feed That Can Cause Mutations and Antibiotic Resistance

For the last forty years, farmers fed animals feed laced with antibiotic drugs. [FN86] Veterinarians, researching possible benefits of using human antibiotics on sick animals, learned that such administration treats disease, prevents infection and as a bonus for farmers, promote growth. Antibiotics that a veterinarian must otherwise prescribed can now be purchased over the counter laced in animal feed. [FN87] Prescription requirements are waived for animal feed because dosage amounts contained in feed are smaller than those used to treat disease and are thus considered nutritional rather than therapeutic. [FN88] As tolerance levels rise in the recipient animals, doses are increased to maintain growth rate. [FN89] Today, "fifteen to seventeen million pounds of antibiotics [are] used subtherapeutically [on animals] each year in this country alone." [FN90] In addition, an estimated 10,000 farmers lace feed with illegal levels of drugs to maintain growth. [FN91]

Ingested antibiotics kill most of the bacteria present in an animal's system. [FN92] Bacteria, however, often contain slight mutations that allow them to survive. [FN93] These mutant bacteria, now resistant to the antibiotic, remain and reproduce quickly, passing on their resistance to millions of new bacterium. [FN94] For example, one Escherichia coli bacterium ("E. coli") [FN95] can produce more than one million offspring in only seven hours. [FN96] Even more frightening, these antibiotic resistant mutations can pass on their resistance to other species of bacteria. As a result, "[b]acteria immune to antibiotics flourish in animals whose feeds contain antibiotics." [FN97]

C. European Governments Have Enacted Legislation and Regulated Factory Farm Animals for Decades

In response to public outcry, in 1964, the English government appointed a committee to investigate the living conditions of livestock kept for intensive farming purposes and to advise whether to set new standards with animal interests in mind. [FN98] The Brambell Committee investigated and subsequently suggested, that farm animals should be allowed the most basic needs, which they labeled the "Five Freedoms." [FN99] The Five Freedoms read "[a]n animal should at least have sufficient freedom of movement to be able without difficulty to turn around, groom itself, get up, lie down, [and] stretch its limbs." [FN100] Europe essentially follows this model today. [FN101]

III. ARGUMENT

Congress should enact a federal statute protecting farm animals from abuse. Factory farm animals are subjected to deplorable and inhumane daily living conditions. These conditions impact humans because (A) humans are concerned with preventing the unnecessary suffering of animals and (B) housing animals under poor conditions produces unhealthy and dangerous meat that humans later consume. Further, (C) other countries have successfully legislated effective protection for factory farm animals; (D) providing protection for farm animals would not harm the national economy and (E) state anti-cruelty legislation has proven inadequate protection for animals. Therefore, Congress should pass legislation that protects farm animals by requiring farmers to meet minimum humane living condition requirements.

A. Congress Should Regulate Factory Farming Because Humans Are Concerned With Preventing the Unnecessary Suffering Of Animals

It is natural to wish to prevent the unnecessary suffering of any living creature. The history of animal welfare law shows that once the public becomes aware of animal cruelty, efforts have been made to stop such practices. [FN102] It has long been recognized that animals are more than inanimate objects and they are capable of feeling pain. [FN103] There are many animal lovers who would go to great lengths to defend animals from harm. Humans are concerned with the suffering of animals. This concern is demonstrated in (1) the legislative purposes behind existing animal protection statutes; (2) the public concern over animal welfare and (3) the booming organic food industry, a development that proves consumers and producers are willing to change to farming practices that result in improved living conditions for animals raised for food production.

1. The Legislative Purpose Behind Other Federal Animal Protection Statutes Evidences Congressional Intent to Prevent Unnecessary Suffering and a Concern For Animal Welfare

In enacting animal welfare statutes, Congress expressed an intent to prevent the abuse of animals and to maximize animal welfare to the extent possible. Farm animals suffer the abuses that Congress sought to prevent when it enacted federal statutes that protect non-farm animals from abuse. The intent behind such statutes should extend to farm animals. The 28-Hour Law, AWA and Humane Methods of Slaughter Act all a) resulted from public reaction to animal cruelty practices, b) defined animal cruelty as confinement or other abhorrent living conditions and c) expressed the purpose of ensuring the humane treatment of animals.

a. Animal Welfare Statutes Were Created In Response to the Public Outcry Against Animal Cruelty Practices

Congress enacted the 28-Hour Law, AWA and Humane Methods of Slaughter Act in response to public outrage against unnecessary, cruel treatment of animals in transport, in experimentation and at the slaughterhouse. [FN104] The 28-Hour Law was a result of public outcry against the mistreatment of cattle during transportation. [FN105] Some mistreatment included animals transported under extreme temperatures, crowded and confined with no food or water. [FN106] After transport, many animals were left injured, emaciated or dead. [FN107] The 28-Hour Law was enacted to guard against mistreatment in the handling and care of transported livestock. [FN108]

The AWA was enacted when the public began to fear that pets would be sold to researchers. [FN109] One purpose of the AWA was to prevent the sale of stolen pets for research purposes. [FN110] Later amendments, however, reflect an added concern for the humane treatment of research animals in general. [FN111] The 1970 amendment expressed a "continuing concern" for kindness to animals. [FN112] Public concern for animals was an important factor assessed when Congress amended the AWA in 1985. [FN113]

The Humane Methods of Slaughter Act responded to public outcry against the inhumane slaughter of farm animals when meatpacking plants were exposed for their cruel treatment of animals. [FN114] Methods of slaughter were found to directly affect consumer health; consumers became so revolted that they became physically and emotionally ill, and subsequently refused to eat meat. [FN115] Congress recognized the need for a remedial, uniform statute ensuring humane methods of slaughter. [FN116]

Congress should enact a statute protecting the welfare of factory farm animals in response to growing awareness and concern over factory farm conditions. Increased membership in animal welfare groups that focus on farm animal conditions and work to deter economic support of such practices show that the informed public disapproves of factory farm methods. [FN117] Protests have increased as awareness has increased. The Internet is overflowing with cites that warn consumers of factory farm animal abuses and offer alternative food products. Part of the public has rebelled against factory farming by purchasing higher priced food produced utilizing humane farming practices. This purchasing pattern proves consumers feel strongly that humanity is an important concern for which they are willing to pay more.

It is easy to ignore practices that are hidden from our everyday view. The general public does not experience the daily living conditions of factory farm animals and can pretend that they do not exist. Congress, however, has passed animal welfare statutes to protect zoo and other animals from abuses that the general public is not affected by. Congress should respond to the public outcry against farm animal abuses just as they responded to public outcry against the abuses practiced on other types of animals.

b. Legislators Are Concerned With Close Confinement Practices In the Non-Farm Animal Context

Congress considers animal confinement cruel. [FN118] Intensely restricting and confining an animal for long periods of time without rest is cruel and unusual treatment. [FN119] The longer the confinement period, the more severe the cruelty becomes. [FN120] In Oregon R. & Nav. Co., the District Court of Oregon explained the purposes of the 28-Hour Law. [FN121] The court held that:

[i]t is unusual treatment to confine animals in close quarters at any time, as in the course of transportation, which subjects them to the rocking and swerving of the vehicles in which they are carried .... [I]t needs no elaboration to convince one that the treatment will be attended with cruelty, and the cruelty will increase in severity the longer the treatment is administered. [FN122]

There is no justification for animals having to endure confinement and deprivation for long periods of time. [FN123]

The House Report to the 1976 amendments to the AWA recounted in great and dramatic detail one witness's testimony before the Subcommittee on Livestock and Grains. [FN124] A cougar was shipped in a small wire crate with only two slits for ventilation and was left in the crate all day in 90-degree heat at an airport. [FN125] The Report described in part:

[t]he animal could not turn around in the coffin-like crate but tore the wire mesh and suffered severe abrasions in its desperate struggle for air. The animal later died. The Director of the National Zoo subsequently stated that he would never ship an animal in such a crate, which he described as inadequate for any purpose other than to transfer an animal between cages. [FN126]

The Report further observed that animals are needlessly left for long periods of time without food, water or exercise. [FN127]

Congress was obviously deeply moved by the cougar's one-day struggle and this was a factor influencing Congress to enact measures that would protect against confining animals in transport for over 28 hours. Countless factory farm animals endure the pain and cruelty every day of their lives that this cougar endured for a mere day. It is no wonder that fatality rates are so high on factory farms, because enduring only one day in such conditions killed a cougar. The cougar's plight pales in comparison to the fact that factory farm animals are confined in coffin-like crates from birth until death.

It is no less cruel and unusual to subject animals to confinement for their entire lives simply because their crates are not rocking with the motion of a moving vehicle. The purpose in enacting the 28-Hour Law was to give an animal rest from confinement to stretch, lie down and breathe outside of such quarters. The length of time an animal is kept in close confinement was at the forefront of their concern, not the movement of the vehicle they are being transported in. It is more appalling to confine an animal for a lifetime than to confine an animal during a short trip. Factory farm animals are destined to stand as though their legs were made of wood, and unable to even turn their bodies. Packed in like sardines, they compete for the little air available in a building with so many bodies. Transported livestock are protected from the same confined conditions. A twenty-nine hour train ride and daily living quarters are indistinguishable. Indeed, their similarities only strengthen the case for improved conditions for farm animals. There is no justification for allowing refuge for animals in transport while simultaneously ignoring the needs of the millions of animals that endure these conditions daily.

c. The Federal Animal Welfare Statutes Express the Purpose of Treating Non-Farm Animals Humanely

Congress enacted the federal animal welfare statutes expressly to provide for the humane treatment of animals. [FN128] Amendments to the AWA reflect the fact that humane treatment of animals was, and remains, a Congressional concern. [FN129] Requiring the humane treatment of animals protects human values by preventing factory farms from engaging in dehumanizing activity. [FN130] The word humane conveys "compassion, sympathy, and consideration for animals' health, safety, and well-being ...." [FN131] Humane concerns indicate that the laws were intended to benefit and protect animals, while restricting the rights of their owners or handlers. [FN132]

The Senate Report for Research or Experimentation labeled cramped, uncomfortable or unsanitary quarters as inhumane. [FN133] The words cramped and inadequate were used repeatedly in the report. [FN134] It is inhumane to deny an animal true rest by not allowing it sufficient space to lie down. [FN135] The 1970 amendment to the AWA established, "by law the humane ethic that animals should be accorded the basic creature comforts of adequate housing, ample food and water, reasonable handling, decent sanitation, [and] sufficient ventilation ...." [FN136]

This definition of inhumane living conditions no longer stops at intensive confinement and lack of proper ventilation. The AWA now recognizes the importance of providing for the psychological well-being of primates and for the exercise of dogs. [FN137] The AWA now requires not only minimization of animal pain, but also minimization of animal distress, or even the possibility of animal pain or distress. [FN138] In Animal League Defense Fund v. Glickman, the Circuit Court for the District of Columbia held that by seeking to promote the psychological well-being of animals, "the Animal Welfare Act ... is explicitly concerned with the quality of animal life." [FN139] The court held that when determining humane treatment, the focus should be on the conditions under which an animal lives. [FN140] Animals in persistent states of suffering are seriously injured. Similarly, people are aesthetically injured from knowing that such inhumane treatment is occurring. [FN141]

Like the animals governed by the AWA, factory farm animals are subjected to inhumane treatment that Congress should address. Congress has expressed concern over the inhumane treatment of animals and inhumane treatment has been defined in terms of confinement. Factory farm animals' basic creature comforts are not being met. Their housing is inadequate because there is not enough space. The lack of space harms both ventilation and sanitation.

Currently, the AWA provides for the exercise of dogs. [FN142] In 1976, the Committee on Agriculture expressed the hope that laboratories would expand efforts to maintain the well-being of dogs through exercise. [FN143] Congress has recognized that animals (or at least dogs) need exercise and that it is unhealthy for them to be confined in a cage for their entire lives without any freedom of movement. Similarly, it is unhealthy for chickens, pigs, calves and cows to remain confined without freedom of movement for the duration of their lives. It is natural and healthy for them to graze in pastures, roll around in the mud or simply stretch their limbs. Existing conditions on the factory farm are not normal, healthy or humane.

The AWA shows that Congress is becoming more concerned with the psychological well-being of animals. [FN144] A scan of the legislative history shows an increasing concern with animal welfare that may stem from public outrage. [FN145] Environmental living conditions of animals affect quality of life, psychological well-being and animal distress, which are all topics of Congressional concern. [FN146] Research animals and factory farm animals are confined, kept solely for and die for human interests, and affect our economy. Because of the similarities between research animals and factory farm animals, the interest in the quality of animal life of research animals should prompt a concern for factory farm animals.

Factory farms take no interest in their livestock's psychological well-being. No living creature could possibly remain psychologically sound living under factory farm conditions. Mortality rates, aggressive behaviors, and emotional disturbances of animals kept in factory conditions show lack of psychological well-being. Therefore, Congress should apply the same reasoning used to enact the AWA to enact a statute to extend the same protection to farm animals.

2. The Public Is Concerned With Humans Destroying and Harming the Natural Environment and With Harming Animals Specifically

The public is concerned about the environment and generally disapproves of intensive farming techniques. [FN147] The public is well aware of the effects of human caused environmental destruction. These include acid rain, landfills, extinction of plants and animals, pollution of land, water and air, deforestation and nuclear waste. [FN148] Surveys indicate that if a choice must be made, the concern over animals and nature outweighs an interest in economic growth by three to one. [FN149] The public is demanding more protection for the environment in general. [FN150] Membership in animal rights and animal welfare groups has dramatically increased in the last several decades; in the late 1990's, activists estimated members to number around ten million. [FN151]

A reason for public concern is that humans recognize a need to protect those who cannot protect themselves to prevent unnecessary suffering. [FN152] This need should be especially strong where humans cause the destruction, harm or suffering. It is now generally accepted that animals are more than mere automatons. They are cognitive, can feel pain, and are worthy of moral concern. [FN153] "[F]arm animals raised for food production are sentient and should be free from abuse and neglect ...." [FN154] Farm animals' suffering is not isolated to a few instances; the animals suffer in great numbers. This widespread harm strengthens the need to address their conditions. [FN155]

Perhaps as a result of growing public concern, the judicial system is taking animal cruelty more seriously. [FN156] In 1999, three factory farm employees of a pig-breeding farm in North Carolina were subjecting the housed pigs to horrific and shocking cruelties. [FN157] Investigators witnessed workers violently beating animals daily, bludgeoning pregnant sows with wrenches and iron poles, sawing off conscious animals legs and skinning pigs alive. [FN158] North Carolina made history by handing down the first felony indictments for charges of animal cruelty. [FN159] One of the indicted workers paid fines, served 125 days in jail, with an additional 120 days suspended, and received three years of supervised probation. [FN160] This sentence is the strongest penalty given to an individual for farm animal cruelty in United States history. [FN161] This result sends a strong message that animal cruelty is a serious matter and conditions on factory farms must change. [FN162]

3. The Booming Organic Food Industry Proves That Consumers and Producers Are Willing to Shift Towards More Humane Methods of Farming

Public concern over the environmental effects of factory farming is responsible for more consumers opting for organic food. [FN163] Consumers are willing to pay more for products that are morally, environmentally and physically safe. [FN164] After all, "we are what we eat." [FN165] Consumers decided that environmentally safe products were worth paying extra money to seek a guarantee of safeness. [FN166] In 1990, consumers received this guarantee when Congress passed the Organic Foods Production Act to assure consumers of a consistent, safe standard for organic food. [FN167]

A market exists for food that promises that animals were treated humanely before their slaughter. Consumers do not always seek low prices when those prices include health risks and damage the environment. [FN168] The health benefits of consuming meat that comes from local farmers using only natural farming methods attracts consumers who care about their health. [FN169] Eggs laid by free-range hens raised on a pasture have thirty-four percent less cholesterol. [FN170] Farmers devoted to producing traditional, quality food at higher prices "sell wholesomeness and the traditional image of American agriculture and ... will reap a larger share of the consumer food dollar by doing so." [FN171] European consumers have shown a willingness to pay extra money for products when the animals they consume are raised cruelty-free. [FN172] People are even choosing organic food options for their pets. [FN173] A survey conducted in the United Kingdom showed that eighty-five percent of pet owners who buy their pets organic food placed importance on the quality of the lives of the animals that eventually become food, when making pet food selections. [FN174]

Recent market analysis estimates that the organic United States market will be worth twelve billion dollars and other reports have estimated that organic products will steal five percent of mainstream markets within five years. [FN175] The organic food market is predicted to continue to grow and expand its range. [FN176] In the United States, Spectrum Foods reported an eighty-seven percent increase in profits in 1999, mainly from organic investments. [FN177] As demand increases, supermarkets around the world are offering more organic options. [FN178] Safeway currently offers eighteen organic meat choices. [FN179] Sales have soared for Organic Valley, an organic meat and dairy producer committed to humane farming practices. [FN180] Sales grew from $20 million in 1997 to over $72 million in 2000. [FN181] The company predicts sales of over $108 million in 2001. [FN182]

Statistics on the organic food industry's success proves that consumers care about the quality of life that animals raised for food production have before slaughter. People are willing to pay slightly higher prices for the comfort of knowing that animals were not mistreated while alive. Some consumers are unwilling to sacrifice their values by purchasing meat that was raised under cruel conditions. Treating farm animals humanely provides justification for their subsequent slaughter and consumption that is important to many people.

B. Congress Should Regulate Factory Farming Because Factory Farming Creates Dangerous Health Risks for Humans

Animals are not the only creatures harmed by factory farming. Factory farm conditions create health risks for humans as well. Factory farming is dangerous because 1) daily administration of sub-therapeutic doses of antibiotics create strains of antibiotic resistant bacteria that can infect humans and result in untreatable bacteria, 2) many health organizations around the world have warned against the dangers of administrating sub-therapeutic doses of antibiotics, 3) the administration of sub-therapeutic doses of antibiotics is unnecessary and 4) massive amounts of waste contaminate the land on and around factory farms, creating dangerous toxins that remain in the soil for long periods of time.

1. The Administration of Sub-Therapeutic Doses of Antibiotics Endangers Human Health

The administration of sub-therapeutic doses of antibiotics is dangerous to human health because a) continuous exposure to antibiotics contributes to antibiotic resistance bacteria and b) antibiotic resistant bacteria, when transmitted to humans, will be untreatable.

a. Continuous Exposure to Antibiotics Contributes to the Growing Problem of Antibiotic Resistant Bacteria

Experts warn that the use of antibiotics in animal feed contributes to antibiotic resistance that will eventually result in ineffective antibiotics in humans. [FN183] The consistent administration of antibiotics evolves bacteria into strains that are antibiotic resistant. [FN184] Stuart Levy, a microbiologist and professor at Tufts University School of Medicine, warns that agricultural use of antibiotics "contributes to the increasing ineffectiveness of antibiotics in treating infections in humans." [FN185] In addition, Professor Levy warns that once a human is infected, bacterium reproduce quickly. [FN186] "One Escherichia coli bacterium, for instance, can produce more than a million progeny in seven hours - a quickly growing problem if an antibiotic resistant organism infects a person." [FN187] "Human overuse ... [of antibiotics] contributes to th[e] problem, but the volume of antibiotics administered to animals vastly exceeds the amount taken by humans." [FN188]

Scientific evidence shows a direct link between long term antibiotic use in animals and human antibiotic resistance. [FN189] In 1984, the Centers for Disease Control ("CDC") concluded that there was a direct correlation between antibiotic feed and eighteen serious salmonella cases that occurred the previous year. [FN190] The CDC discovered further evidence of the connection in 1987. [FN191] In 1990, a Denmark study concluded that use of the antibiotic avoparcin in animals was linked to the emergence of vancomycin- resistant enterococi in humans. [FN192]

Recent studies have discovered bacteria in chickens that are resistant to fluroquinolones, the most recently approved class of antibiotics that scientists had hoped would effectively treat a variety of infections for a long time into the future. [FN193] Bacteria that have developed resistances cause common diseases such as pneumonia, tuberculosis and common childhood infections. [FN194] Livestock feed is laced with many of the drugs used to treat humans, such as amoxicillin, ampicillin, erythromycin, neomycin, penicillin and tetracycline. [FN195]

b. Antibiotic Resistant Bacteria, When Transmitted to Humans, Will Be Untreatable

Consistent administration of antibiotics to animals is dangerous for humans who consume them because resistance to antibiotics is a serious human health risk. [FN196] Bacteria may spread from species to species. [FN197] John Schmitz, the head of the University of Nebraska-Lincoln Department of Veterinary Science, states that "[a]pproximately 90 percent of all food-borne illnesses can be passed from animals to humans ...." [FN198] Antibiotics often treat infectious disease, the third leading cause of death in the United States. [FN199] "Resistant organisms passed to humans in meat render normal antibiotics ineffective against a wide range of infections. Patients may suffer prolonged illness or death while being treated with ineffective medicines." [FN200]

Disease can be transmitted to anyone who either has every day contact with animals or their waste, or eats contaminated food. [FN201] If a field is fertilized with contaminated waste, for example, harvested crops could become contaminated and transmitted to the humans who consume such crops. [FN202]

In the United Kingdom, there have been outbreaks of salmonella, botulism, bovine spongiform encephalophathy ("BSE," commonly known as Mad Cow Disease) [FN203] and paratuberculosis in animals. [FN204] In 1996, research indicated a link between Creuzfeldt-Jakob Disease ("CJD"), the human variant of BSE, [FN205] and BSE. [FN206] Experts believe that consuming contaminated meat has exposed victims to CJD. [FN207] More cases of CJD emerge every year and experts estimate a growth rate of twenty to thirty percent. [FN208] As of September 2000, there were eighty-two confirmed cases of CJD. [FN209]

"Last year, The New England Journal of Medicine reported the ... emergence of a superstrain of ... salmonella that was resistant to most forms of drug treatments." [FN210] Salmonella bacteria infect around 1.4 million Americans yearly; approximately 8,000-18,000 people are hospitalized and approximately 500 will die of salmonella poisoning every year. [FN211] Young children and the elderly are most at risk because their immune systems are weak. [FN212] For example, in Nebraska, salmonella bacteria resistant to Rocephin, a widely used pediatric drug, infected a boy who lived on a farm. [FN213] Researchers at the University of Nebraska Medical School and the CDC concluded that the resistant bacteria in the boy were the same bacteria prevalent in the cattle on his ranch. [FN214] This led the researchers to believe that the bacteria became resistant to the antibiotic in the cattle and then the bacteria were passed to the boy with that resistance. [FN215] Research has shown that Ceftiofur, an antibiotic used on cattle, pigs and poultry, is closely related to Rocephin. [FN216] Thus, when antibiotic resistant bacteria in animals are transmitted to a human the bacteria are also resistant to closely related antibiotics used on humans.

2. Congressional Response Is Warranted Because Many Health Organizations Around the World Have Warned Against Administration of Sub-Therapeutic Doses of Antibiotics

Due to concern with the safety issues of resistant bacteria and transferability, the United States General Accounting Office ("GAO") first questioned the implications of using antibiotics in agriculture in 1977. [FN217] The GAO recommended that the FDA investigate the safety of agricultural use of antibiotics and withdraw approval, if necessary. [FN218] The FDA subsequently proposed withdrawing its approval of the agricultural use of penicillin and tetracycline in 1978, but Congress denied the proposal. [FN219] Critics assert that Congress acted in response to lobbying by the livestock and pharmaceutical industries. [FN220] At that time, the National Academy of Sciences recommended additional research to fill data gaps as well. [FN221]

Other organizations have recommended altering the use of antibiotics on factory farms. The World Health Organization ("WHO"), the United Nation's arm responsible for monitoring global health, favors a ban on the agricultural use of drugs used to treat humans. [FN222] The CDC supports restricting antibiotic use. [FN223] The Department of Health and Human Services contends that safety measures need to be taken now. [FN224] The National Academy of Sciences now wants to monitor drug resistance and is researching alternatives to drug administration on farms. [FN225] The FDA has begun revising its guidelines for the agricultural approval of antibiotics. [FN226] Some farmers have even cut back voluntarily, perhaps in response to publicity of the health dangers. [FN227] For example, Tyson Foods uses no antibiotics or growth hormones on its animals. [FN228]

The international community has taken aggressive steps towards minimizing the risk posed to human health by the agricultural use of antibiotics. [FN229] In 1970, the United Kingdom banned the use of sub- therapeutic drugs after a committee of microbiologists and doctors concluded that over long periods of time, resistant bacteria would emerge that would threaten human health. [FN230] Other European countries soon followed. [FN231] Sweden banned any and all growth antibiotics in 1986, Denmark banned one antibiotic in 1998, and Canada has taken measures to reduce the amounts of antibiotics used in agriculture. [FN232] Iceland pledged to remove conventional foods from the market and replace them with organic products at no increased cost to the consumer. [FN233]

Since 1985, there has been a European Union [FN234] blanket ban on hormones used in farm animal feed. The ban made it illegal to administer antibiotics to farm animals, absent a prescription from a qualified veterinarian. [FN235] It has survived legal challenges from producers and interest groups, but was repealed for procedural reasons and readopted in 1988. [FN236] In addition to the ban, the European Union in 1989 barred the import of meat and livestock by non-compliant producers. [FN237]

The United States should follow the European Union's example or at least decrease the use of antibiotics in agriculture. Enough conclusive evidence and agency concern exists to justify such action. [FN238] The United States should go further than WHO's narrow goal of banning the agricultural use of only those drugs used to treat humans because it may be insufficient, proven by cases such as the one involving the Nebraska child, infected with bacteria found in the cattle on his farm. His cattle were not given sub-therapeutic doses of Rocephin, the antibiotic doctors attempted to treat him with, but instead with an antibiotic merely related to Rocephin. [FN239] His case proves the broad scope of the link between the agricultural use of antibiotics and human resistance. There is a direct correlation between administering antibiotics to our livestock and creating mutated antibiotic resistant bacteria. More people should not have to die before something is done about this known connection.

3. Congressional Regulation Is Warranted Because There Are Effective Alternatives to the Constant Administration of Antibiotics On the Farm

Farming without antibiotic use or decreased use is the key to halting these tragedies. [FN240] Professor Stuart Levy suggests that if farms would "[e]liminate most agricultural usage[,] ... [the] bacteria's evolution would likely slow down to a pace that would allow researchers to stay ahead with new, effective antibiotics." [FN241] Alternatives include improved hygiene and sanitation. [FN242] Farming with antibiotics is not necessary, as proven by existing American beef industry practices that do not include administering antibiotics to their cattle. [FN243] Beef cattle are the least confined of farm animals, allowed to freely graze until one or two years old. [FN244] This open farming method allows farmers to forgo the use of antibiotics, which are used partly to ward off diseases rampant in close quarters. [FN245]

Coleman Natural Beef, the nation's leading supplier of organic beef and lamb in the United States, allows their calves to remain with their mothers for eight to ten months so that natural antibodies can be transferred through their mother's milk. [FN246] Once the calves are weaned, they are allowed to graze freely in a pasture, an outdoor environment making disease less likely. [FN247] The cattle do not need, and Coleman does not use, antibiotics or growth stimulating hormones. [FN248] Organic Valley produces dairy and meat products across the United States. [FN249] Organic Valley never uses antibiotics in production. [FN250] Organic Valley guarantees the humane treatment of animals, by providing them access to the outdoors that prevents health problems. [FN251]

Beef and other meat producers should follow the lead of Coleman and Organic Valley in adopting methods that have proven farming without antibiotic usage is successful. Freeing factory farm animals from their confinement and placing them in a natural and open environment will naturally alleviate the problems with disease that result from intensive farming techniques. Allowing farm animals to live less confined lives will promote their psychological well being in the process, a shown concern of Congress. [FN252]

4. Factory Farming Exposes Humans to Unhealthy Toxins Created From Massive Amounts of Waste

Antibiotic administration is not the only factory farming practice endangering humans. [FN253] The massive amounts of waste produced at the factory farm can adversely affect human health as well. [FN254] Because thousands of animals produce great amounts of waste, there are resulting problems with the "atmospheric deposition of nitrogen and accumulation of heavy metals and phosphorus in soils." [FN255] Furthermore, this waste results in contaminating the water around the farm. In some cases, the water only becomes drinkable after significant periods of time have passed, sometimes as long as twenty years. [FN256] Contamination from the toxic water is a realistic possibility and could happen during the flooding of basins or when waste is improperly applied to fields. [FN257]

During the many years that the waste is decomposing, odors are emitted from feces, urine, skin, hair, feed and bedding contained in the water. [FN258] Humans exposed to these odors experience nausea, vomiting, headache, respiratory problems -- such as shallow breathing, coughing, irritation of eyes, nose, and throat, -- and depression. [FN259] Farm workers and farm neighbors are constantly exposed to chemical or biological hazards, poisonings, and respiratory disease. [FN260]

An open farming method would alleviate these problems, which would force farmers to reduce the massive numbers of animals housed at each facility. Fewer animals would mean less noise, less waste and less pollution. In turn, this would benefit the animals by allowing them more room per facility.

C. Congress Should Regulate Factory Farming Because Other Countries Have Already Enacted Legislation to Protect Farm Animals

Most countries outside of the United States have enacted some form of legislation to protect farm animals or to regulate farm animal practices. Most of these laws were enacted within the last couple of decades and either set limits on the administration of antibiotics or set requirements for housing. These laws were created to ensure the humane treatment of farm animals, specifically within the context of current farming practices. The competing interests of each individual species' needs versus the farmer's economic needs have been balanced. The result is a fair compromise that allows animals basic creature comforts, while not overburdening the farmer with outrageous restrictions. The two most comprehensive protective statutes belong to 1) the European Union and 2) the United Kingdom.

1. The European Union Has Enacted Legislation Providing for the Humane Treatment of Farm Animals

The European Union has created statutes to ensure uniformity within its member's states and to avoid unfair competition from areas less locally regulated. The protective statutes focus on the principle of free movement and each animal species' physiological and ethological needs. The European Union provides for a) a general law protecting farm animals and b) laws that are species or situation specific.

a. The European Council Directive for the Protection of Animals Kept For Farming Purposes Provides for the Humane Treatment of Farm Animals In General

The European statutes that protect farm animals focus on promoting animal welfare and preventing their suffering. [FN261] European legislators have recognized that lack of space and overstocking leads to avoidable behavioral problems. [FN262] Intensive farming systems lead to excessive and unnecessary suffering that creates the need for uniform minimum standards of protection. [FN263]

The European Council Directive for the Protection of Animals Kept for Farming Purposes ("Directive") sets forth standards to promote animal welfare in farming systems. [FN264] The Directive contains requirements on housing, freedom of movement, nutrition, sanitation and ventilation. [FN265] Requirements include inspection, adequate lighting and adequate cage sanitation. [FN266] Farmers must care for sick or injured animals immediately. [FN267] Farmers must feed animals nutritious diets appropriate to their age and species and no other substance may be administered as food, except for therapeutic or prophylactic purposes. [FN268] The buildings in which the animals are kept must have sufficient ventilation. [FN269] Air circulation, dust levels, temperature, humidity, and gas concentrations must not be harmful. [FN270] Farmers must not keep animals in permanent darkness or permanent artificial lighting without periods of rest. [FN271]

The freedom of movement of an animal, having regard to its species and in accordance with established experience and scientific knowledge, must not be restricted in such a way as to cause it unnecessary suffering or injury. Where an animal is continuously or regularly tethered or confined, it must be given the space appropriate to its physiological and ethological needs in accordance with established experience and scientific knowledge. [FN272]

In addition, "[n]o animal shall be kept for farming purpose unless ... it can be kept without detrimental effect on its health or welfare." [FN273]

b. Other European Union Laws Providing for the Humane Treatment of Farm Animals Address the Needs of Individual Species of Farm Animals

Europe also addresses the needs of individual species through legislation focused on their particular living conditions and needs. [FN274] Laying hens are specifically protected in the European Union by the Council Directive Laying Down Minimum Standards for the Protection of Laying Hens Kept in Battery Cages. [FN275] Member states must ensure that at least 450 square centimeters (69.72 square inches) of unrestricted cage area is available for each individual laying hen, that each cage is at minimum forty centimeters (15.75 inches) high over sixty five percent of the cage area and not less than thirty-five centimeters (13.78 inches) at any point. [FN276] This requirement applies regardless of the number of hens in each cage. [FN277] Hens must have access to continuous fresh drinking water and fed nothing other than feed and therapeutic or prophylactic substances. [FN278]

Veal calves confined for fattening are specifically protected in the European Union by the Council Directive Laying Down Minimum Standards for the Protection of Calves. [FN279] The law requires calves confined in groups to have unrestricted, unobstructed floor space of at least 1.5 square meters (16 square feet) for each calf that weighs 150 kilograms (401.88 pounds), allowing them to turn around and lie down without hindrance. [FN280] Where calves are confined in individual stalls, the walls should be perforated so that they can view and touch other calves. [FN281] The width of the stalls must measure at least ninety centimeters (35.43 inches) plus or minus ten percent or .80 times the height at the withers. [FN282] Each calf must have the ability to lie down, rest, stand up and groom itself without difficulty. [FN283] The lying area must be comfortable, clean and not slippery or dangerous. [FN284] Calves must have some form of lighting (whether natural or artificial) that functions for at least eight hours -- the length of time that natural light is available to them. [FN285] Their diets should be based on their individual "age, weight, and behavioral and physiological needs, to promote a positive state of health and well-being." [FN286]

Farm animals traveling for longer than eight hours are specifically protected by the Council Regulation on Animal Protection Standards Applicable to Road Vehicles used for the Carriage of Livestock on Journeys Exceeding Eight Hours ("8-Hour Law"). [FN287] Animals transported for periods longer than eight hours must be provided certain travel conditions. [FN288] The 8- Hour Law places great emphasis on the principle of free movement. [FN289]

The only United States law that even compares to any of these European laws is the 28-Hour Law, which is similar to the European 8-Hour Law. [FN290] Both address livestock conditions during transport and provide detailed requirements for their care. The 28-Hour Law requires that the animals have rest after a certain amount of time has passed, just to place them back into the same conditions. [FN291] Whereas the European law focuses on ensuring the travel conditions themselves are more comfortable when travel exceeds eight hours. European legislators have concluded that eight hours of travel is uncomfortable enough to warrant regulation. The United States, by contrast, allows animals to remain uncomfortable for twenty additional hours of travel before requiring rest. [FN292]

European regulations reflect the recognition that different species have different needs that should be considered if welfare interests are to be truly advanced. The laws were created to protect the comfort of the animal, rather than just the economic interests of the farmer or even the interests of people who are aesthetically injured by the suffering of another living creature. [FN293] The laws appear to evolve from a concern for the animal's interests.

In the United States, we have seen a trend towards recognizing the need to maintain the psychological well-being and freedom of movement of certain animals. Providing for the psychological well-being of primates is now part of the AWA requirements. The exercise of dogs is now a recognized need as well. This Congressional acknowledgement that various species have special needs should prompt the enactment of a statute that considers farm animals' special needs and protects them from abusive living conditions.

2. The United Kingdom Has Enacted Legislation Providing for the Humane Treatment of Farm Animals

The United Kingdom has followed the European Community's model and created their own protective statutes for farm animals. [FN294] The United Kingdom is concerned with the welfare of farm animals and in the past the United Kingdom considered the European Union directives inadequate protection for the welfare of animals. [FN295] The Welfare of Farmed Animals Regulations ("Regulations") parallels the European Union Directives, while exceeding their scope. [FN296] In general, the Regulations are a mirror image of the European model, but special sections for each species accommodate the specific needs of that species. [FN297]

The special sections set forth painstakingly detailed requirements with great focus on freedom of movement. [FN298] The area of room each animal is given depends on how many animals are housed in one cage or stall and the individual animal's size. [FN299] For instance, laying hens kept in battery cages are allowed 1,000 square centimeters (155 square inches) of room when housed alone and 450 square centimeters (69.72 square inches) when housed with four or more other hens. [FN300] Individual stalls in which calves are kept in must have a width equal to the height of the calf at the withers and a length equal to the body length of the calf multiplied by 1.1. [FN301] Where calves are kept in groups, each calf must have at least 1.5 square meters (16 square feet) of room when weighing less than 150 kilograms (401.88) and at least three square meters (32.26 square feet) of room when weighing over 200 kilograms (535.85 pounds). [FN302] Calves weighing in between 150 (401.88 pounds) and 200 kilograms (535.85 pounds) are allowed at least two square meters (21.72 square feet) of room. [FN303] Pig stalls must have an area no less than the square length of the pig and no internal side may measure less than seventy five percent of the length of the pig. [FN304]

The Regulations take into consideration not only the needs of different species but the needs of each individual animal. Each animal is an individual entity with unique needs. However, farmer's interests are not forgotten. For instance, the Regulations provide that an animal's weight be considered in determining the minimum required space of its stall. The Regulations further provide that the number of animals per stall be considered, usually decreasing the required minimum space per animal when animals are housed in groups. Thus, individual animal's needs are a factor, while keeping in mind the room the farmer realistically has available. These Regulations strike a balance between compassion for animal welfare and the farmer's financial resources. Farmers who are financially able to house animals individually may have the room to afford each animal more space, while farmers who group animals together may not.

The United States should follow the example of foreign nations in enacting a protective statute for farm animals. England first investigated the need for reforms over a quarter of a century ago. Other countries have recognized that animals have ethological and physiological needs and place great importance on their welfare and ability to move freely. Intensive farming techniques in the United States are so distressing and uncomfortable that the basic creature comforts envisioned by the Brambell Committee's "Five Freedoms" [FN305] would serve as minimum requirements.

D. Congress Should Regulate Factory Farming Because Providing Protection for Farm Animals Would Not Harm the National Economy

Opponents of factory farm regulation may express concern about any economic disadvantages created by implementing regulations. Though any limitation on free enterprise may involve some cost, the end result will substantially improve poor industry practices, and those who will incur the most cost will be those who can most afford it. Therefore, the national economy will not suffer unduly from such regulations. Providing farm animals with the most basic creature comforts will not harm the economy because 1) regulations will not disadvantage the family farmer and 2) the benefits of a farming system that considers animal welfare outweigh the burdens a statute would impose.

1. Regulations On Factory Farming Would Not Harm the National Economy Because Regulations Will Not Disadvantage the Family Farmer

The majority of Americans do not reap great benefits from the intensive factory farming system. Small, family farms have been taken over by large corporations. [FN306] These large corporations may generate capital from factory farming, but it is only a small percentage of the population who reaps the rewards from this capital. [FN307] A law, therefore, that forces the industry to provide its profit-making animals with humane living conditions will not substantially burden the overall economy. [FN308] In fact, in the late 1990's, forty percent of smaller Midwest swine producers were competitive with large-scale producers, showing that large-scale facilities are not a necessity. [FN309] Further, as intensive farming has become industrialized, Congress should treat it like every other industry that pays costs to meet environmental regulations. [FN310]

Intensive farming benefits neither farmers nor their employees. [FN311] The savings generated by greater efficiency and lower food prices are offset overall by economic and health risks to the farmers and their employees. [FN312] Instead of running their own businesses, factory farmers are given the status of independent contractors who, in reality, are wage employees of large corporations without employee benefits or workers compensation. [FN313] A statute regulating intensive techniques will benefit the small farmer by allowing him to avoid the need to invest in high tech confinement systems to compete in the industry. [FN314] The majority of family farmers would most likely already meet the requirements. [FN315]

Though farmers may incur some cost, they could save money elsewhere as a result of requiring more humane housing conditions. [FN316] For instance, animals treated better will become calmer and aggressive behaviors that farmers have spent money curtailing would lessen or disappear, saving money for the farmer. [FN317] If hens were given a larger living space in which they could stretch their wings and turn around, they might not be so stressed that they became unnaturally cannibalistic and barbaric debeaking [FN318] would become unnecessary.

In addition, employees of factory farms would not be negatively affected by regulations. [FN319] Big businesses prefer intensive systems because the automation prompts the need for fewer employees. [FN320] Regulations that demand more supervision would create the need for more jobs, not fewer jobs. [FN321] Automated systems could be partially replaced by more human supervision. Regulation would further create jobs by the investigation and licensing requirements.

2. Regulations On Factory Farming Would Not Harm the National Economy Because the Benefits of a Compassionate System Outweigh the Burdens

When animals are happy, their productivity increases. [FN322] The declaration of policy in the Humane Methods of Slaughter Act states that humane methods of slaughter bring about the improvement of products and economies. [FN323] In 1991, Congress and Purdue University created the Center for Food Animal Well-Being. [FN324] This experimental farm was designed to determine environmental conditions that increase productivity. [FN325] Researchers found that calves allowed to play outside with other calves were more content and relaxed and that dairy cows exposed to classical music increased milk production by five and a half percent,