A detailed analysis of the differences and similarities between US, European Union, Swiss, Norwegian and German animal cruelty laws. The theories behind these differences are explored. Finally, possible and definite future reforms shed light on upcoming animal cruelty law.
Animal laws vary from one country to the next. What one country may value as life, another values only as property. This leads to fundamental differences in the existing laws designed to protect animals. An animal's moral status, be it sentient being or machine, inevitably determines how an animal will be viewed in the eyes of the law.
Aristotle's philosophy included a hierarchy. This hierarchy is known by scholars as the great chain of being. It was proposed that the things lower on the chain were made for those higher on the chain. In other words, plants were made for animals, animals were made for people, slaves were made for masters, women were made for men, and men were at the top of the earthly chain, made only for God. According to this philosophy, animals were natural slaves, made for man to be used as a means to an end.
The Bible is another source of our society's current status of animals. In Genesis, God gave man dominion over every living thing that crept on the earth. Every moving thing that lived was meant for man. Some people argue that this is the reason why animals can be treated as property, or in some cases, as machines. It is easy to justify the use of animals for food, research or pleasure when it is believed that they exist for us.
Another argument for the use of animals without moral consequence comes for the largely Aristotelian belief that human beings are the only beings with a rational soul. Rene Descartes expanded on this, enforcing the idea that because animals cannot speak, they cannot reason. Reason is what Descartes claimed separated man from animal. Immanuel Kant took this even further, demanding that the only value an animal has is instrumental. Kant believed that humans do not owe direct duties toward animals but that any duty owed to an animal is just an indirect duty, the duty owed is toward mankind.
These religious beliefs and philosophies have paved the path for our current legal system as it relates to animals. In the United States, animals are property. This follows directly from the ideas presented above. Whether we are just higher on the great chain of being or just granted dominion over the animals by God, asserting moral rights on animals would hinder their current role in our society. This trend has slowly begun to change through the way we view companion animals in the United States. Companion animals are placed in a special class, far removed from farm animals and research animals.
Contemporary philosophers such as Jeremy Bentham have argued that the question is not can animals reason, but can they suffer? Peter Singer, a well known philosopher and author, argues that the utilitarian principle of the greatest good for the greatest number should include animals because they too can feel pleasure and pain. In Europe, some entities have begun to assert moral rights on animals. It is present in the legislation pertaining to animals and the regulation of out-dated animal husbandry practices. No longer does animal legislation just exist to protect the owner of an animal. In Germany, legislation has expressed the responsibility of human beings to protect animals. This idea steps away from the belief that animals are here for us to use as a means to an end.
This paper will address some of the fundamental differences in animal cruelty legislation relating to companion animals and farm animals in Europe and the United States. First, an overview of the sources of animal law in the US and Europe is presented. This is followed by a thorough discussion of companion animals. Finally, all aspects of farm animal legislation will be looked at, from regulation of animals on the farm, to transport and finally slaughter.
II. Sources of Animal Law
A. Sources of United States Animal Law
In the United States there are three main federal statutes relating to animal welfare:the Humane Methods of Slaughter Act (discussed below), the Twenty-Eight Hour Law of 1877 (also discussed below) and the US Animal Welfare Act . These three Federal statutes do not regulate the treatment of animals reared for food while on the farm, nor do they regulate treatment of companion animals. Additionally, there is no federal anti-cruelty statute in the United States.
The US Animal Welfare Act 1 is the most comprehensive of the federal statutes. It does not, however, apply to the treatment of farm animals used for food or the treatment of pet animals by owners or in pet stores and therefore is not relevant to this discussion. 2 It applies to some animals used in or bred for research, exhibitions and zoos, animal fights and auctions. 3 The definition of animal is limited under the US Animal Welfare Act and applies mainly to warm blooded animals such as dogs, cats, non-human primates, guinea pigs and rabbits. 4 The US Animal Welfare Act is not a federal anti-cruelty law; instead, anti-cruelty legislation is determined by states. For more information in the Animal Welfare Act, see the AWA Topic Page .
The states have individual anti-cruelty statutes that may regulate the handling of animals reared for food, depending on whether or not the state has an exemption for farm animals. Additionally, there is no Federal law regulating the treatment of pet animals. Pet abuse falls under the ambit of state anti-cruelty statutes.
The European Union was founded as the European Economic Community by the treaty of Rome in 1956. From this point to the present, the EU has been developing through the introduction of several other treaties. In 1997, the Treaty of Amsterdam created the political union by establishing a common police force, a foreign policy, international security and a centralized EU citizenship. Currently there are fifteen member states in the EU. 5
Many laws in the EU are based on conventions or treaties constructed through the Council of Europe. The Council of Europe is an Intergovernmental body designed to promote human rights and democracy in Europe. It was set up in 1949, has forty-one members, including all of the EU member states. When the members of the EU sign a Council of Europe convention, they will incorporate the principles in the laws of the EU through directives, regulations and decisions. There are currently six conventions relating to the protection of animals, four of which will be discussed below. The conventions not discussed relate to animal research and wildlife in their natural habitats.
This discussion will include the individual laws of Switzerland, Germany, and Norway. Sweden, the Netherlands and the United Kingdom will also be referenced. Germany, Sweden, the UK and the Netherlands are member states of the EU. This means that the laws of these countries must at a minimum meet the laws adopted by the EU, but can go above and beyond those protections. In Switzerland, two pieces of legislation exist on animal welfare. The first is the Federal Act on Animal Protection which lays out the basic rule regarding the specific animal welfare topic of concern. The Federal Council created the Animal Protection Ordinance , which contains the actual regulations governing specific practices. In Norway, animal welfare is protected by the Norwegian Animal Welfare Act .
A. US: State Anti-Cruelty Laws and Companion Animals
In the United States, pets are protected through stateanti-cruelty statutes. Every state has an anti-cruelty statute. State anti-cruelty statutes protect against intentional infliction of pain or suffering on an animal, killing an animal and sometimes animal fighting. They are often an animals only source of legal protection. These laws were formed in the agrarian societies of the 1800's, mainly for the protection of animals with economic value, such as farm animals. 6 Today, many animals are exempt from these statutes, while companion animals are protected. Common exemptions include: veterinary practices, research animals, wildlife, farm animals, slaughtering animals for food, pest control, rodeo, zoos, and circuses. 7 Commonly seen provisions in these laws are: counseling, community service, restitution, seizure, reimbursement for cost of care, forfeiture of the animal, veterinary reporting, and arrest policies. Each state's provisions are different. For examples of state animals cruelty statutes see the Cruelty Laws Topic Area .
The Texas case of Celinski v. State 9 is illustrative of the way in which an anti-cruelty statute is typically applied. The Texas Court of Appeals upheld an animal cruelty conviction in this case. The appellant was accused of animal cruelty when his roommate, the cat owner, returned home to find her two cats very ill. The appellant denied having caused harm to the animals. When the cat owner took the animals to the veterinarian, it was discovered that a fatal dose of acetaminophen, the active ingredient in Tylenol, had been given to the cats. The cats' paws were also burned. The cat owner returned home to find cat hair in the microwave. Both the lower court and the court of appeals found that there was sufficient evidence to show that the appellant had tortured and subsequently caused the death of two cats by poisoning them and burning them in a microwave oven.
A person who has suffered from an act of animal cruelty inflicted upon their pet may also bring a civil case. In this way, a pet owner who has been aggrieved may collect damages. However, as pets are viewed in nearly all states as the property of their owners, recovery is often limited to the market value of the pet. This figure is usually nominal at best and rarely a substitute for the companionship of the pet. See the Pet Damages Topic Area for a further discussion of this subject. The status of pets as property is changing in some states. For an example of this see Colorado's Companion Animal Bill.
Despite the application of state anti-cruelty statutes to companion animals and the successes of convicting those who have violated the statutes, the provisions in these statutes are typically geared toward protecting the owner of an animal from harm or, as some would argue, for protecting society itself. The court in Knox v. Massachusetts SPCA explained: "These statutes [state anti-cruelty statutes] are 'directed against acts which may be thought to dull humanitarian feelings and to corrupt morals of those who observe or knowledge those acts.'" 10 In other words, anti-cruelty laws in the US were not created to protect the animals themselves, but to protect the morality of human members of society. Companion animals are protected because of the special relationship they have with human beings, one based on love and compassion. Farm animals, circus animals, and research animals are commonly exempted because they are used as means to human ends. It follows that it would harm a human being to "observe or knowledge" the infliction of harm on a companion animal, while it may not harm them if pain were inflicted on an animal they solely use as a means to an end.
In contrast to the US, the European Convention for the Protection of Pet Animals 11 expands the guardian role of humans with regard to their companion animals. While the Convention on Pets has not yet been ratified by France, Italy, the Netherlands and Turkey, the basic principles for animal welfare presented in this treaty are that nobody shall cause a pet unnecessary pain, suffering or distress. Additionally, it provides thatno one shall abandon a pet animal. The provision on keeping explains that a person who keeps a pet or who has agreed to look after it is responsible for its health and welfare. That person must provide accommodation, care and attention, water, food, exercise and must take reasonable measures to prevent the animals escape. Animals that cannot adapt themselves to captivity shall not be kept as pets.
The convention has additional provisions related to who may own, sell, train and breed pets. These provisions help to ensure that companion animals are not placed with people who cannot provide for them or in facilities that are not equipped to handle animals. Unlike the US, these provisions on companion animals exist to protect the animals themselves, as well as for the benefit of the owners and society. In providing that nobody shall cause an animal to suffer, the treaty is specifically conveying the value of protecting the animal for the animal's benefit. By placing moral value on protecting an animal for the well-being of that animal, an animal gains a status higher than just property.
The following laws are examples of the ways in which companion animals are granted protection in western nations outside the US and EU. Each of these laws conveys some value on companion animals greater than their value as property. None of the laws have specific sections on companion animals but the general provisions in all three examples do apply to companion animals.
In Swiss animal legislation ( The Federal Act on Animal Protection and The Animal Welfare Ordinance ) 12 , provisions relating to pets are scattered throughout. The legislation is designed to ensure the animal's protection and welfare. Some examples of provisions that apply to companion animals illustrate the existence of the regulation for the good of the animal as well as the protection of the owner. Animals cannot be kept in a way as to interfere with their bodily functions. This ensures that animals have room to eat properly, lie down, urinate and defecate and that there is nothing restraining them from doing these things naturally. Additionally, animals must be fed, housed and cared for in a way that is consistent with their physiology and behavior. Therefore, dogs should be walked or allowed to run, in order to provide them with sufficient exercise. Animals must be cared for so that disease and injury may be averted. If an animal becomes sick or injured, this animal must immediately be housed, looked after and treated. The legislation includes many other provisions relating to temperature, tethering and fresh air, all of which are for the protection and welfare of the animal. They are preventative regulations, used to outline the responsibilities of animal owners in order to help prevent cruelty to animals. In the US, animal cruelty statutes have a tendency to be prescriptive, only addressing behavior that is in violation of the statute and the appropriate punishment for that violation. The Swiss law, on the other hand, gives guidelines to ensure the welfare of animals before violations of animal cruelty occur.
The Norwegian Animal Welfare Act 13 is premised on the statement that animals shall be treated well, and consideration shall be given to the instinctive behavior and natural needs of animals, so that there is no risk of causing them unnecessary suffering. Although this statement does not define necessary suffering, it is implied that unnecessary suffering is a violation of animal welfare legislation. Like the EU convention on pets and the Swiss legislation, the Norwegian Animal Welfare Act raises animals to a status that is more than merely property. By creating regulations which forbid the unnecessary suffering of animals, the status of these animals grows from that of property to that of a being, deserving of consideration in treatment.
Germany has signed and ratified the Companion Animal Convention mentioned above, therefore Germans are subject to the confines of that treaty. The German Animal Welfare Act 14 is premised on the responsibility of human beings for their fellow creatures to protect the lives and well-being of animals. This provision is an enormous step in the right direction. The existence of this "responsibility" premise illustrates that animals are not seen as merely property in Germany, but as fellow creatures deserving protection from unnecessary harm. It conveys an expressed duty on human beings to protect animals. In the other legislation, this duty is implied through the mandate to promote animal welfare. Here, Germany is specifically stating the responsibility, enforcing the idea that humans are stewards rather than dominators.
D. Conclusions on the Laws Relating to Companion Animals
There are two ways in which companion animals gain greater legal status. First, when animals are generally granted a legal status greater than property through legislation. Second, when companion animals are given their protection through laws created primarily for their protection. Germany leads the way with an expressed duty to protect animals premising their animal legislation. Norway and Switzerland imply this duty when they make animal welfare the guiding reason for their animal legislation. The EU is the only body discussed above that has an actual selection of laws on companion animals. The United States only covers the treatment of companion animals through state anti-cruelty statutes and possible civil suits. Additionally, with the exception of few states, anti-cruelty laws exist mainly for the benefit of the owner, not the animal itself. Civil suits are entirely for the benefit of the owner of an animal. This changes when laws are premised with clauses that confer a desire to protect the life of an animal for the animal's sake. Animals are no longer seen as just property, the harm no longer being just to the owner of the animal. The most significant difference between the laws in Europe and the laws in the United States is the desire to protect an animal for the sake of the animal.
IV. Confinement Farming
A. Treatment of Food Animals on the Farm
As the name implies, the Humane Slaughter Act only pertains to the treatment of animals before and during slaughter. In fact, there is no federal law that regulates the treatment of food animal while they are living on the farm.It is necessary to look to the individual states for possible protections.
As mentioned above, every state has an animal anti-cruelty statute. Thirty of these statutes exempt all or some customary farm practices form regulation; twenty-five states exempt all customary farming practices. 15 This ensures that in twenty-five states, animals raised for food while on the farm are generally without protection. Many customary farming practices are cruel and painful to animals and without these exemptions, the practices would be violations of cruelty statutes. 16
For example, the practice of forced molting involves depriving hens of food and reducing day length for ten to fourteen days at the end of the laying cycle. 17 This forces the birds to molt, replacing feathers and causing birds to lay an egg much more quickly than they naturally would. 18 This practice results in high mortality and increases the stress and suffering of the bird. 19 It is a violation of the Michigan state anti-cruelty statute to fail to provide an animal with adequate care. 20 The definition of adequate care is "the provision of sufficient food, water, shelter, sanitary conditions, and veterinary medical attention in order to maintain an animal in a state of good health." It is clear that if the animal husbandry practice of forced molting was not exempt, it would be a violation.
There are several shortcomings in having state anti-cruelty statues act as the only protection for farm animals. First, as mentioned above, farm animals are exempt in many states. In addition, these state anti-cruelty statutes are outdated. They do not address the present day problem of concentrated animal feeding operations (CAFO's). There are problems related to the enforcement of these statutes. Many areas of regulation are not covered, such as lighting, temperature and ventilation. The statutes are exceedingly general with discretion left to the court. A judge, however, is not an expert on animal husbandry in most cases. Farms are private property and large farms are part of a big money industry. Sometimes it may be easier for farms to pay a fine for violating a state anti-cruelty statute than it would be to discontinue a cruel practice.
The shortcomings of the laws are a direct result of the human relationship with farm animals. The conflict presented is the animal's status as food. As mentioned above, there is a difference between the relationship between humans and companion animals and the relationship between humans and farm animals. The use of the farm animals as means to an end gives the animals a status lower than that of the companion animals. There is a moral disconnect in the way we allow farm animals to be treated. Human beings cannot think of the food on their plate as a sentient being, one that had been tortured and used for their pleasure. Instead, there is separation between the neatly wrapped meat in the store and the living, breathing animal on the farm. If we were to recognize and regulate the treatment of farm animals, we would be admitting that these animals are alive, that they feel pain and that we are forcing them to do so for our pleasure.
In Europe, the EU and individual European countries have begun to outlaw practices that are known as common husbandry practices in the United States. Battery cages, veal crates and sow stalls are just a few examples of enclosures that are in the process of being phased out in some parts of Europe, while still common in the US.
The European Convention for the Protection of Animals Kept for Farming Purposes 21 is the parent legislation to the many farming directives recently enacted in the EU. Directives are regulations that do not enter into force until a future date. In this way, all the member states have time to adjust current practices to the ones adopted in the directives and incorporate the new practices into their own laws. The Convention applies to animals bred for the production of food, wool, skin or fur or for other farming purposes. The basic tenants of the treaty provide for adequate food, water and care, freedom of movement, ventilation and light. This differs from the state anti-cruelty statutes of the US because the state anti-cruelty regulations do not provide for these kinds of freedoms. From the basic principles of the treaty, species specific regulations were enacted by the EU.
Veal crates and other inhumane practices are commonly used in the US and other countries without regulation. Cattle are often kept indoors three hundred and sixty five days a year. Practices such as these are not pleasant for animals and often cause pain, fear and anxiety.
In the EU, the minimum standards for calf rearing prohibit the housing of calves in individual pens or boxes after the age of eight weeks. 22 Before eight weeks, individual boxes may not have solid walls; instead they must be perforated to allow calves to see other calves. Additionally, the crate must be large enough for the calf to turn around. The provisions came into force for new or rebuilt farms in 1998 and will apply to all farms beginning on December 31, 2006. The European Commission created a requirement to ensure an appropriate diet with minimum levels of iron and fiber. 23
The Swiss Animal Protection Ordinance 24 states that all animals shall receive sufficient food and water. In particular, calves shall receive sufficient iron in their food. Calves more than three weeks old shall be allowed to consume straw, hay or similar fodder. Calves shall not be muzzled. It is prohibited to tether calves that are more than four months old with limited exceptions for breeding and feeding. Calves that are aged two weeks to four months shall be housed with other calves, and calves that are housed individually must have eye contact with animals of the same species. This is similar to the standard in the EU, except that in Switzerland the calves are required to have some kind of contact with the same species for a longer period of their early development. Both nations are allowing for sufficient iron in the animals diet, moving away from forced anemia on veal calves. Additionally, veal crates were banned in the UK in 1990. 25
Swiss dairy cows, mating bulls and calves up to four months old must have a sufficient lying area. Cattle are required to have at least 90 days a year of free movement outside. This is phenomenal because it does not allow for cows to be totally confined all year round. In loose housing, cattle must be able to avoid each other and there must be a special area for sick cattle. This provision will ensure that sick animals are not left to die among the rest of the cattle.
Domestic poultry are often kept in conditions tightly cramped and barren. In the US, egg layers are often not provided with materials to create nests and instead are packed in battery cages, stacked wire cages in conditions so tight the birds often resort to cannibalism. In order to avoid this, the practice of beak clipping and burning is widely used. Hens are often forced to molt prematurely, which shortens their lives and places stress on their heath. Broiler chickens reared for meat often grow so fast that their bones are too brittle to support their weight. Additionally, poultry is not even covered by the Humane Slaughter Act in the US.
In Europe, the directive pertaining to the conditions of laying hens kept in battery cages is The New Laying Hens Directive. 26 It forbids the introduction of newly built battery cages from 2003. Already existing battery cages must increase the size allotted for each bird. The minimum standards protecting laying hens allow for 70-155 square inches per hen, depending on how many hens are on a cage. The minimum allowance is 70 for four or more hens and 155 for one hen. An average sheet of paper is 94 square inches.The United States allows a minimum of 54 square inches of space per hen. This directive will phase out battery cages by 2012.
In Switzerland, breeding birds and layers of all species shall be provided with protected, darkened, soft-floored or litter lined nesting boxes. All other domestic poultry can be kept on suitable perches or a slatted floor. Ducks must be given bathing facilities. Beaks shall not be clipped as to prevent birds for feeding normally. Chicks selected for killing shall not be piled on top of one another while still alive.
Norway has banned beak clipping and beak burning. 27 The UK has legislation that is against the most severetypes of forced molting, namely, a total deprivation of food, water and light.
Sow stalls, known as gestation crates in the U.S., are used for keeping pregnant pigs confined. They are often kept on slatted floors, without any material for rooting or nesting. Sows often suffer from a variety of health problems caused from the constant confinement and exposure to the feces kept beneath them. While Florida has recently adopted legislation that would prohibit the cruel confinement of pregnant pigs, the US still falls behind Europe in providing for the humane treatment of sows during gestation. For details, see Florida's new legislation .
In the EU, sow tethers and sow stalls will be banned in 2006 and 2013 respectively. 28 In Switzerland, it is required that pigs be given ample rooting time with straw, roughage or other suitable material. Theseprovisions ensure that pigs are not kept locked up endlessly in gestation crates or by other methods. When sows are kept in crates, the floors can be no more than fifty percent slatted, leaving half the floor solid for comfort. Breeding boars and fattening pigs shall not be kept in crates unless they are underweight. Sows are allowed to be kept in farrowing pens or gestation crates in Switzerland, however, she must be given sufficient space to turn around in and long cut hay a few days before farrowing. This will allow the sow to perform nest-building activities, which is an instinctive behavior of the species. Finally, piglets shall not be kept in cages with two or more tiers and the tops of the cages must be left open.
In the Netherlands, tethers have been banned since 2002 and sow stalls will be banned from 2008. 29 Finally, Finland, Sweden and the UK have already passed national legislation on a unilateral basis to ban sow stalls and tethers ahead of the future EU wide bans. 30 For a more detailed discussion of UK cruelty laws see the UK Cruelty Detailed Discussion .
The use of hormonal growth promoters has been banned in the EU since 1988. 31 Countries outside the EU that use these growth promoting hormones cannot export to the EU. 32 The use of genetically engineered milk-boosting hormones, (BST), in dairy cattle has been banned in the EU since January 2000. 33 In Switzerland, all housing systems for mass-production of animals for food are required to be authorized through the animal housing board.
The Norwegian Animal Welfare Act 34 lists the following acts as forbidden: kicking animals, hitting them with sticks or ropes or knotted thongs, or hitting them with anything else than may cause pain, whipping a horse, force feeding animals, fire branding animals with the exception if marking hooves, claws, shells or horns. This provision is important to keep abuse out of animal farming operations. In the United States, provisions like these only exist in the state anti-cruelty statutes, many of which exempt animal husbandry practices. Norway does not exempt animal husbandry from this provision. Norway also forbids castrating poultry, ear docking and tail docking unless no more than one-third of the ear is removed, putting a ring in the nose of a pig thereby preventing the pig from rooting in soil, dehorning an animal, clipping or burning the beak of poultry or cutting the comb in poultry, unless regulations are otherwise enacted by the Ministry
The German Animal Welfare Act's 35 Animal Husbandry Section provides that animals must be given food, care and housing appropriate for its species. Species-specific freedom of movement may not be restricted to an extent where the animal is caused pain or avoidable suffering. It is prohibited to require an animal to produce performances that are clearly beyond its strength or capacity, in vies of its condition, except in emergencies. It is additionally prohibited to force feed an animal. Therefore, force feeding in ducks and geese, as is common for liver enlargement, is not permitted in Germany.
3. Why Animal Husbandry Practices Are Being Banned In Europe
It can be seen that many common US husbandry practices are being phased out or have already been banned in Europe. The cruel practices that are considered common in the US are becoming violations of animal welfare regulations across the Atlantic. This is due to the status of animals. As property, animals may be treated like machines, regulated mainly for the benefit of the owner. As sentient beings, animals are endowed with a moral status and human beings have an advanced role in the protection of these beings. In the United States, there is a huge agricultural lobby. Food animals are governed by big money industry; most regulations are designed to protect this industry. In a union of countries such as the EU, a door is opened to newer ideas about the role of animals and their relationship with humans. In Europe, there is a variety of lobby's controlling the regulation of animals. Although some countries are still faithful to the Christian idea that we have dominion over the animals, several other countries have moved away from this, believing that animals need to be protected for their own sake. This explains why the EU regulations are shifting. Several EU member states no longer hold the view that animals only have value as property. Animals cannot be given a moral status and still be treated as though they have none.
B. Regulating Animal Transport
Farm animals forced to travel long periods of time without food, water and appropriate ventilation arrive at their destination, tired, stressed and malnourished. Often times, animals die on these journeys or arrive injured at slaughterhouses. Animals can be transported huge distances, from California to New York, or from England to Greece. In the United States, limited legislation exists regulating this transport. In Europe, changes are being made to enhance legislation. In its current form, EU legislation far surpasses that of the United States. In the proposed enhanced form, the legislation will be even tighter and more restrictive, reducing animal suffering to an even greater extent.
The United States Federal legislation clearly relating to the transportation of animals raised for food is the Twenty Eight Hour Law of 1877 . 36 This law was repealed and reenacted in an amended form in 1994. 37 This law applies only to interstate transportation of animals and states that animals transported by "rail carrier, express carrier or common carrier (except by air or water)" may not be confined in a vehicle or vessel for more than 28 consecutive hours without unloading the animals for feeding, water and rest. 38 This statute does not apply to a vehicle or vessel in which the animals have food, water, space and an opportunity to rest. 39 Finally, the statute provides that animals being transported be given rest for at least five consecutive hours and that the unloading into pens for this rest must be done in a humane way. 40
There are several shortcomings to the Twenty-Eight Hour law . This law provides exceptions allowing sheep to be confined for an additional 8 hours if the 28-hour period of confinement ends at night or when the owner or person having custody of the animals being transported requests en extension to 36 hours. 41 The statute does not apply to transportation by air or sea, or to transport within a state and it does not take into account the age, heath or species of animal to be transported. It is uncertain as to whether this law applies to trucks in addition to railroad "cattle cars." The law must be enforced by the Attorney General, and the maximum penalty is $500. 42 This means that the attorney general must decide that a violation of this law is worthy of the time and effort it takes to enforce the law. Additionally, large farms can easily afford to pay an occasional $500 fine. An inspection system regulation the transport of food animals does not exist. Unlike many countries in Europe, route plans, inspection papers and transporter certification are not required. So many animals are being transported every day without inspection or enforcement of the existing limits. The USDA would need to staff many people to carry out this task and this is not currently a high priority.Concerned citizens cannot bring a case for a transportation violation. They lack standing to sue. These animals are private property and it would be nearly impossible for a concerned citizen to develop the kind of relationship necessary to show that there has been an injury in fact.
It will be seen in greater detail below that the European Union has adopted much more specific laws on the international transportation of animals 43 and is even in the midst of strengthening those. 44 Additionally, Switzerland's Animal Protection Ordinance transportation provision is more detailed and able to protect the welfare of animals. 45
States regulate the transport of animals as well. Most states require that the transportation of animals be conducted in a humane manner. 46 Some states specifically exempt farm animals from the transport statute. 47 The states that do not exempt farm animals typically have short statutes with small, monetary fines imposed if violated. 48 The acceptable times of transport without rest vary from state to state, many allowing twenty-eight or even thirty-six hours of continuous travel for train and truck. 49 Vermont has the shortest continuous transport time at eighteen hours for trucks, 50 however, the time limit for rail remains at twenty-eight hours. 51
Unlike the US, Europe has recognized the need for specific regulation and enforcement concerning the transportation of animals. The European Union adopted into force the European Convention for the Protection of Animals During International Transport in 1971. 52 In 1995, the contracting parties decided to update the rules of the convention. 53 The new rules will be open for signature in November of 2003. 54 Until this time, the current governing rules are found in the Council Directives 91/628/EEC and 95/29/EC. 55
The current regulations allot different travel times and space requirements to the separate species of animals according to a chart indicating the length of journey and whether there is water on board with the animals. 56 Generally, animals are only allowed eight hours of continuous transport in "basic vehicles," then must be fed, given water and rested. In "higher standard vehicles," allowable journey times are increased to nine hours for calves and piglets, fourteen hours for other cattle, sheep and goats and twenty-four hours for pigs, if there is continuous access to water. 57 The directive requires that animals kept in compartments have above head ventilation and that the compartments be big enough to allow animal to stand in a natural position. 58 There are also several other provisions concerning mandatory route plans, on-the-spot checks of compliance with the regulations, and transport documents. 59
If adopted, the new proposal would modify the respective traveling time limits for cattle, sheep, goats, pigs and horses to an "across the board" maximum for all species of nine hours to be followed by at least twelve hours rest if the journey is to continue. 60 Additionally, changes will be made to improve enforcement, create larger space allowances and require training for handlers. 61
3. Swiss Laws on Transport
The Swiss laws on the transport of animals are found in Section 4 of the Federal Act on Animal Protection and Chapter 6 of the Animal Protection Ordinance . 62 The first provision lays out the transport procedure, including the necessary paperwork and competent handler required. The Ordinance requires animals to be in good health in order to travel and does not allow animals to travel unless they are expected to make the journey without harm. Although the ordinance does not set an hour limit on the time an animal can travel before rest and feeding, it does specify that animals must be watered and fed as necessary, before and during transport. Lactating dairy cattle must be milked twice a day. Animals should be separated as to species. Requirements include the secure locking if all windows and doors, proper length of tethering devices that allow animals sufficient space to lie down or feed, fresh air and protection against inclement weather.
Neither the U.S. Federal nor state laws on the transportation of animals contain provisions outlining the treatment of animals while in route. There are no guidelines as to how animals should be kept, no regulation of the temperature, heat or ventilation animals should be allowed, and no species specific guidelines. Again, EU laws are more comprehensive in that they contains species specific guidelines for amount or room, type of compartment and length of journey. Switzerland has specific guidelines allowing that compartments are large enough to allow animals to stand normally. In the US, "horses are transported in double-decker cattle trucks with ceiling so low that they injure their heads and backs." 63 Such treatment exemplifies the US attitude on the food status of animals and exhibits a greater concern toward the agricultural lobby rather than the humane treatment of livestock. The US agricultural lobby controls the regulation of food animals and their status in the law. As long as they are seen as property, food machines, inhumane treatment is not a concern because the animals have no moral status. In Europe, the changing moral status of animals does not allow for this kind of treatment. Animals are recognized as sentient beings, deserving of some protections and legal consideration, even on the way to slaughter.
C. Laws Regulating the Humane Slaughter of Animals
The US Federal law regulating slaughter is the Humane Slaughter Act . 64 This law regulates the slaughtering of livestock to prevent needless suffering and promotes improvement in slaughtering techniques. 65 It contains an exemption for ritual slaughter and does not apply to the slaughter of poultry. 66 There is a complete set of regulations pertaining to the humane slaughter of livestock which specify the treatment of animals at the slaughterhouse before and during slaughter. 67 These regulations provide that pens, driveways and rams shall all be maintained in good repair as to not injure animals and protect against slipping. Livestock shall not be driven at a faster rate than walking speed and electric prods and other devices shall be used as little as possible. Pipes and other sharp or pointed objects shall not be used to drive cattle. Dragging disabled animals is prohibited. The regulations include detailed instructions for each method of rendering an animal unconscious: carbon dioxide gas, captive bolt stunners and projectiles, gunshot, and electrical current. Animals shall have access to water in all holding pens and, if held longer than 24 hours, access to feed. There shall be sufficient room in the holding pen for animals held overnight to lie down. For more discussion of the Humane Slaughter Act and the regulations pertaining to slaughter, see the Humane Slaughter Topic Page.
This statute, which only applies to federally inspected slaughterhouses, is difficult to enforce because of the amount of livestock slaughtered every day in the United States. For example, 90,000 cows are slaughtered per day in the U.S, 68 390 an hour in some of the larger slaughterhouses. 69 With so many animals being slaughtered each day, it is nearly impossible to guarantee that each is slaughtered within the regulations.
Downed animal legislation has been a hot topic in the United States. Recently, legislation was initiated in both the House and the Senate regarding non-ambulatory animals during slaughter. These provisions, commonly known as the "Downed Animal" Acts, address the care of animals that cannot move on their own accord into slaughter transporting vehicles prior to and during slaughter. The act would have made it unlawful to transfer or market non-ambulatory or "downed" livestock unless humanely euthanized. The House Bill was narrowly defeated. House Version of Downed Animal Bill . This issue is further discussed in the Humane Slaughter Topic Area .
Due to the limited protection generated by the Humane Slaughter Act , 27 states have passed their own humane slaughter laws. 70 Often times, states are able to more strictly regulate than the federal government, which is a good incentive for creation of state based animal legislation.This state legislation is necessary if the slaughter of all animals raised for food is going to be regulated. 71
The EU has unanimously adopted a treaty to regulate the slaughter of farm animals. The European Convention for the Protection of Animals for Slaughter of May 10, 1979 72 lists three reasons for adopting the treaty: 1) It is desirable to ensure the protection of animals which are to be slaughtered; 2) Slaughtering methods which as far as possible spare animals suffering and pain should be uniformly applied; 3) Fear, distress, suffering and pain inflicted on an animal during slaughter may affect the quality of the meat. 73 In other words, any country who signed the treaty agreesto protect animals duringslaughter in order to inflict the least amount of suffering on the animal and to protect the quality of the meat.
The treaty covers all aspects of slaughtering from unloading to slaughter. Animals must be unloaded as soon as possible, be protected from extremes of weather and be given adequate ventilation. 74 Additionally, the personnel responsible for the moving and storage of animals must be qualified to do so. Animals must be moved with care. Proper flooring, footholds and suitable equipment for unloading is required. Animals are not be excited or frightened. Particularly, the treaty makes it clear that lifting animals by the feet, head or tail in a manner causing pain or suffering is not allowed. When animals are moved, instruments can be used to guide them but only for short periods. In particular, electric shocks can be used for bovine animals and pigs, but the shocks cannot last for more than two seconds, must be adequately spaced out and applied to the correct muscles, and the animals must have room to move when they are shocked. Tail bending or breaking, blows (hitting) and kicks are not to be inflicted. Animals in crates must be unloaded with care to avoid injury.
Animals taken to the place of slaughter must be slaughtered immediately. Animals that cannot be slaughtered immediately must be taken to be lairaged. Lairaging is the process of keeping animals in stalls, pens, or covered areas at slaughterhouses in order to feed, water or rest them before slaughter. Again, the animals must be protected from unfavorable climatic conditions. The floors must not be slippery or wet. Slaughterhouses are required to have covered areas containing feeding and drinking troughs. If animals are to spend the night must be tied up, when appropriate, in a way that allows the animal to lie down. Hostile animals should be separated. The health status of animals must be inspected twice a day and sick, weak, or injured animals are to be slaughtered immediately.
The slaughtering of animals must be done by the appropriate stunning method, with the exception of religious or ritual slaughter, emergency slaughter, the slaughter of poultry and rabbits if authorized methods causing spontaneous death are used, and the killing of animals for health control. Animals are not to be restrained in a way that causes avoidable suffering. The use of puntilla, hammer or pole ax is prohibited.
Section 7 of the Swiss Federal Act on Animal Protection and Chapter 7a of the Swiss Animal Protection Ordinance 75 provide the guiding law on animal slaughter for Switzerland. Section 7 explains that mammals must be stunned before bleeding and in the case of large establishments, the Federal Council may stipulate that poultry must also be stunned. Methods of stunning used must take instant effect or if effect is delayed it must be painless.
Similar to the above European treaty on animal slaughter, this legislation also covers the delivery of animals to be slaughtered to the actual slaughtering. Upon delivery, animals health and care must be inspected. If animals cannot be unloaded from the transport vehicle upon arrival, this vehicle must be provided with adequate ventilation and protection from harsh weather.
If animals must be housed, they should be protected from extreme weather, held in an area of adequate size and watered. There are specific regulations for housing depending on the length of time before slaughter and species of animal. Animals which are hostile to each other must be housed separately. Lactating dairy cows must be milked if not slaughtered on the day of arrival. If animals stay overnight, they must have conditions checked twice a day.
Animals must be handled gently and handling devices should only be used if animals have a need for evasion. The use of electric prods must be kept to an absolute minimum. Flooring must be non-slip and construction which may cause injury to animals must be avoided.
The stunning methods are different for every animal. Horses can be stunned by bolt or bullet shot to the brain. Cattle may be stunned by a bolt or bullet shot to the brain or a pneumatic gun. Pigs, sheep, rabbits and goats may be stunned by a bolt or bullet shot to the brain or by electricity; pigs may additionally be stunned by carbon dioxide gas or a high pressure water jet. An acceptable method for stunning rabbits is also a strong blow to the head. Finally, poultry may be stunned by a bolt, strong blow to the head or electricity.
With the exception of poultry and rabbits, animals must be stunned in the upright position. Bleeding must be done by cutting or piercing the main blood vessel and must be done as soon as possible after stunning.
Although not as detailed as the Swiss legislation, Section III of the German Animal Welfare Act 76 provides some specific provisions on the killing of animals. It is stated that any rules laid down by the Federal Ministry must comply with the European Convention on the Protection of Animals for Slaughter. Additionally, detailed regulations governing each aspect of slaughtering are allowed through this section. The provisions included in the German AWA explain that all warm blooded animals must be stunned before they are killed unless it is an emergency or a form of ritual slaughter.
Section 9 of the Norwegian Animal Welfare Act 77 explains that the killing of animals must not cause unnecessary suffering (this includes animals killed when hunting or catching). Animals killed for food (with the exception of fish) must be stunned before being bled. The killing must be performed by persons over the age of sixteen. As far as possible, the killing of animals must be performed out of sight of other animals. Animals must not be skinned, scalded or plucked before they are dead.
The US Slaughter Regulations and the EU Convention both go to some length outlining the slaughter of food animals. The US regulations stress the minimization of "excitement or discomfort" while the EU regulations stress minimal fear, stress, suffering and pain. All of the above regulations seem to have animal welfare in mind, however, appropriate enforcement of the regulations is the necessary step to ensure that animals are not suffering before and during slaughter. In the US, many violations of slaughter regulations have been documented. It is impossible for the USDA to regulate the slaughtering of every animal, all the time. On the other hand, violations such as submerging live pigs in scalding water are unacceptable. As long as animals are treated as machines in the US, violations such as these will continue to occur.
The EU is taking giant steps to improve the animal welfare conditions on the farm and in route to slaughter. Currently, there are several directives that will soon become active banning cruel and inhuman practices. The most noteworthy are the bans on sow stalls, veal crates and battery cages. If signed into law, the new directive on transport will put more restrictions on the length of travel and increase the space allotted to animals that must travel long distances to reach their destinations. The Swiss animal welfare legislation is comprehensive and well suited to meet the current animal welfare demands in Switzerland. The United States, on the other hand, has fallen behind the EU and other European governments on improving animal welfare on the farm.
One major problem plaguing the animal welfare system in the US is a lack of enforcement. Regulations governing humane slaughter for example exist to protect the welfare of the animal and the quality of the product. When they are violated and no action is taken, companies will continue to violate them.
Another problem is the attitude people have toward animals. Companion animals are treated one way while farm animals and research animals are treated another way. Dogs used in research are not protected from inhumane treatment while companion dogs are. In the US, we have become dependent on animals for food, for research and for companionship. Through this dependency, our society reinforces the idea that animals are property, entitled to no moral consideration. Without moral consideration, there will be little to no improvement in animal welfare laws. In Europe, a trend is developing in legislation granting animals legal protection for the animals benefit. Protection from unnecessary suffering and harm are commonly listed as the purpose of animal welfare legislation. No longer do animal welfare laws exist to solely protect the owner of an animal.
Other countries should follow the example of the EU and create separate regulations for companion animals, farm animals and research animals. Each class of animal has distinct needs to fit their distinct role in society. If animals are treated as sentient beings, deserving of moral and legal consideration, the use of animals without adequate justification and need would decrease. With a broadening of the legal status of animals, regulations protecting them would increase. Hopefully, the future will continue to bring reform across the Atlantic as well as in the US.
4 Id at 2132(g). Section 2 of the Animal Welfare Act defines "animal" as ". . . any live or dead dog, cat, monkey (nonhuman primate mammal), guinea pig, hamster, rabbit, or such other warm-blooded animal, as the Secretary may determine is being used, or is intended for use, for research, testing, experimentation, or exhibition purposes, or as a pet; but such term excludes (1) birds, rats of the genus Rattus, and mice of the genus Mus, bred for use in research,[effective 2003] (2) horses not used for research purposes, and (3)horses not used for research purposes and other farm animals, such as, but not limited to livestock or poultry, used or intended for use as food or fiber, or livestock or poultry used or intended for use for improving animal nutrition, breeding, management, or production efficiency, or for improving the quality of food or fiber. With respect to a dog, the term means all dogs including those used for hunting, security, or breeding purposes."
12 The Swiss Federal Act on Animal Protection and The Animal Welfare Ordinance (English Translation), available at http://www.bvet.admin.ch/tierschutz/e/gesetzgebung/tschg_tschv_version_2001.pdf .
13 Norwegian Animal Welfare Act (English Translation), available at http://oslovet.veths.no/act.html . (Code: 750.000 Issued: June 16, 1995.)
14 German Animal Welfare Act (English Translation), available at http://www.nal.usda.gov/awic/legislat/awagertrn.htm . (Federal Law Gazette I, p. 1904.)
15 Wolfson , supra note 6 at 130.
21 European Convention for the Protection of Animals Kept for Farming Purposes, March 10, 1976, E.T.S. 89; Additional Protocol to the European Convention for the Protection of Animals Kept for Farming Purposes, E.T.S. 145, February 6, 1992.
24 The Swiss Animal Welfare Ordinance (English Translation), available at http://www.bvet.admin.ch/tierschutz/e/gesetzgebung/tschg_tschv_version_2001.pdf .
26 Council Directive 1999/74/EC, 1997, E.T.S. (L 203) 53 (This directive replaced Council Directive 88/166/EEC, 1988 O.J (L 74) 83); Clare Druce & Philip Lymbery, Outlawed in Europe 17 (Archimedean Press (2002).
27 Norwegian Animal Welfare Act (English Translation), available at http://oslovet.veths.no/act.html . (Code: 750.000 Issued: June 16, 1995.)
34 Norwegian Animal Welfare Act (English Translation), available at http://oslovet.veths.no/act.html . (Code: 750.000 Issued: June 16, 1995.)
35 German Animal Welfare Act (English Translation), available at http://www.nal.usda.gov/awic/legislat/awagertrn.htm . (Federal Law Gazette I, p. 1904.)
36 49 U.S.C. § 80502 (1996).
37 Wolfson , supra note 6 at 125-26.
38 49 U.S.C. § 80502 (1996).
43 European Convention for the Protection of Animals During International Transport, July 13, 1968, E.T.S. No. 65.; Protocol to the European Convention for the Protection of Animals During International Transport, Nov. 7, 1989, E.T.S. No. 103.
44 Europa, Ongoing Initiatives on animal Welfare During Transport, available at http://europa.eu.int/comm/food/fs/aw/aw_transport_init_en.html .
46 Wolfson , supra note 6 at 129.
47 Id. Wolfson explains that Nebraska and Nevada specifically exempt farm animals from their transport statute and Oregon exempts farm animals unless there has been gross negligence; NEB.REV.STAT § 28-1013(6) (Supp. 1994); NEV.REV.STAT.ANN. § 574.200(6) (Michie 1994).
63 Wolfson , supra note 6 at 134.
64 Humane Methods of Livestock Slaughter Act, 7 U.S.C. §§ 1901-1907 (1999) .
65 Id at § 1901 .
66 Id. at § 1902 & 1906 .
68 Lori Korell, Animal Concerns: What's Wrong With Factory Farming, available at http://www.shoestringtravels.com/animals/Stats.htm .
70 Wolfson , supra note 6 at 136 (1996).
71 Id. at 14 & 19. The Humane Slaughter Act does not regulate the slaughter of poultry and therefore if a state would like to have the slaughter of poultry regulated, it must be done through state humane slaughter regulations.
75 The Swiss Federal Act on Animal Protection and The Animal Welfare Ordinance (English Translation), available at http://www.bvet.admin.ch/tierschutz/e/gesetzgebung/tschg_tschv_version_2001.pdf .
76 German Animal Welfare Act (English Translation), available at http://www.nal.usda.gov/awic/legislat/awagertrn.htm . (Federal Law Gazette I, p. 1904.)
77 Norwegian Animal Welfare Act (English Translation), available at http://oslovet.veths.no/act.html . (Code: 750.000 Issued: June 16, 1995.)