Meatonomics Read online

  Similarly, research regularly finds that donations to lawmakers make it more likely their votes will support the donor's interests.7 In one example, members of the House of Representatives who received money from the dairy industry were almost twice as likely to vote for dairy price supports as those who received no money. Even more telling, the greater the amount of dairy money a member got, the more likely her support for the legislation.8 While some might argue that contributors just seek out like-minded legislators, another study of how Congressional lawmakers respond to cash gifts suggests it's really the money that talks. The report found that, in fact, “changes in contribution levels determine changes in . . . voting behavior.”9

  But it's not just a desire to reciprocate that's at play—there's also a basic drive for self-preservation. As we've seen, it costs real money to get elected. Those who violate the principle of quid pro quo are likely to see their donors turn elsewhere, and that could make it hard to stay in office. Marion Nestle, whose book Food Politics explores the food industry's influence over lawmakers and regulators, writes of this economic pressure:

  Given the costs of election campaigns, the lack of public funding for them, and the resistance of Congress to reform campaign finance laws, it is no mystery why legislators might not want to make decisions that displease . . . contributors.10

  From the donors' perspective, the investment bounty from well-placed gifts can be substantial. One study found that in connection with federal subsidy legislation, a $1 industry donation typically yields a $2,000 return in the form of subsidy payments.11 It's a rate of return so high, most businesspeople would say it's impossible. So is it any wonder the animal food industry spends more than $100 million yearly paying lobbyists and making strategic donations?12 A look at the industry's dozens of legislative victories in recent decades shows that this spending is yielding more than just robust subsidies. It's also paying back animal food producers in the form of valuable laws that protect and insulate industry players and lower their costs of doing business.

  There Oughta Be a Law—Common Law and Animal Protection

  Consider the two possible sources of legal protection for farm animals: published cases forming centuries of common law and statutes passed by Congress or state legislatures.13

  First, a little history primer. Under the common law free men had legal protection from physical abuse, but women, slaves, indentured servants, and animals were mere property and could be beaten or abused as necessary to “correct” them. In one example of the common law's treatment of such items of property, a North Carolina court in 1868 declined to punish a man who beat his wife with “a switch about the size of one of his fingers.” Applying the so-called Rule of Thumb, the trial judge held that because the switch was smaller than the man's thumb, the beating was lawful. The appellate court declined to apply the Rule of Thumb but upheld the decision on different grounds, refusing to punish the victim's husband “for moderate correction of her, even if there had been no provocation for it.”14 Needless to say, this isn't the kind of ruling that gives judges a good name.

  Farm animals have served as monetary currency for millennia, and in some countries still do. In fact, the word cattle and the related term chattel (personal property) both have their roots in capitale, Latin for “wealth.” Because the common law saw animals as mere property, it prohibited abuse by third parties that might hurt their economic value but did not punish abuse on the grounds that it was cruel. “The common law recognized no rights in . . . animals,” observed a Mississippi court in the 19th century, “and punished no cruelty to them.”15 Accordingly, our inquiry into farm animals' legal protection must turn from law created by judicial interpretation to those statutes passed by legislators.

  Humanity Dick—Statutes and Animal Protection

  Dick Martin, a colorful lawyer elected in 1776 at age twenty-two to the Irish Parliament and later to the British Parliament, was known as much for his odd antics as for his animal advocacy. He is said to have survived two shipwrecks and over a hundred duels. In one typically dramatic episode, he won a judgment of £10,000 against his wife's lover and then threw the cash from a coach window as he drove through London. If Dos Equis was promoting the Most Interesting Man in the World back then, Martin might have been a candidate.

  Martin was also one of the first to respond to the common law's failure to address animal cruelty. He helped found the first Society for Prevention of Cruelty to Animals (now with “Royal” before its name and an annual budget of $200 million). Sometimes called “Hairtrigger Dick” for his dueling activities, and sometimes “Humanity Dick” for his love of animals, he drew inspiration from both pursuits with the remark, “Sir, an ox cannot hold a pistol.”

  Martin was ridiculed in the press for his animal advocacy and caricatured in drawings that showed him with a donkey's ears. Nevertheless, he authored the most important animal cruelty statute of his time: the Cruel and Improper Treatment of Cattle Act of 1822 (also known as Martin's Act). The act made it a crime to “cruelly beat, abuse or ill-treat” any horse, mule, ox, sheep, or cattle, and it was the first in a wave of anticruelty legislation in Britain and the United States that continued through the 19th century.

  In fact, the stated purpose of early anticruelty legislation was to criminalize the abuse of farm animals.16 Over the course of the 19th century, the scope of legislative anticruelty protection grew wider and expanded beyond farm animals. In 1865, Vermont adopted anticruelty legislation applicable not only to livestock but also to “other animals,” and in 1867 New York passed an anticruelty statute that applied to “any living creature.”

  Legislatively, things started looking good for farm animals after the Civil War. But plot on a graph the level of legislative protection enjoyed by farm animals over the last several millennia, and you'd see a distorted bell curve, sort of like a brontosaurus, very skinny at the left end, peaking in the late 19th century, and declining to roughly zero today. In other words, legislation prohibiting cruelty to farm animals reached a high-water mark in the late 1800s and early 1900s, began declining, and is now almost nonexistent. While legislation safeguarding so many other disenfranchised and exploited groups—children, women, workers, minorities, the disabled, and the elderly—has improved over the last century, how did farm animals come to lose the little legislative protection they once had?

  Customary Farming Exemptions

  Every US state has a statute prohibiting cruelty to animals. But in response to industry lobbying, most states have adopted an exception to their anticruelty statutes for farm animals. Legal commentators Wolfson and Sullivan, who in 2004 noted the rise of these exceptions, termed them “Customary Farming Exemptions,” or CFEs. Connecticut, for example, an early anticruelty pioneer, passed legislation prohibiting cruelty to “any animal” in 1854. But 142 years later, the Nutmeg State exempted all farm animals from the law's protection by adopting a CFE that made “maliciously and intentionally maiming, mutilating, torturing, wounding, or killing an animal” lawful, provided the act is done “while following generally accepted agricultural practices.”17 Three-quarters of US states have some form of CFE, and most of those exemptions were adopted in the past few decades.18

  Customary farming exemptions essentially remove from lawmakers the authority to decide what constitutes cruelty to farm animals, instead turning that decision over to the farmers themselves. For example, if one farmer decides it would be expedient to chop off all or part of an unanesthetized animal's body part, like an ear, tail, beak, or genitals, and others in the industry follow suit, that procedure becomes customary and protected as a CFE. Thereafter, those who engage in what would otherwise be criminal animal cruelty are exempt from prosecution. As politician and diplomat Andrew Young wryly noted, “Nothing is illegal if one hundred businessmen decide to do it.”

  A few of the many common farming practices now deemed lawful under most states' anticruelty statutes include:

  Crushing or severing the testicles of unanes
thetized animals.

  Slaughtering chickens while they are awake and alert.

  Killing unwanted male chicks or spent laying hens by suffocation, starvation, or disposal in a garbage can or wood chipper.

  These practices are not driven by a sadistic urge to be cruel but by a desire to minimize costs. Meat producers prefer to keep their animals alive until they're ready for slaughter, but from a purely economic perspective, it doesn't pay to worry about an animal's pain or suffering in the meantime. It would cost about $0.25 to anesthetize an animal before castrating him.19 But unless legislatively mandated, the cost of such humane measures to any producer choosing to adopt them would mean lower profits and a loss of competitiveness. As the National Pork Board explained in its 2003 Swine Care Handbook, “Consumers must not expect individual farmers to undertake practices that will make them uncompetitive in the marketplace. Livestock producers will do what is necessary to compete, or else they will not be livestock producers for very long.”20

  A number of countries have outlawed many of these so-called common farming practices. The European Union has banned battery cages, veal crates, gestation crates, and the slaughter of conscious poultry. California has also banned (with effect in 2015) some of these practices, and a few other states have, in part, followed suit. Yet the general rule in the United States is that these practices are not only customary and legal, but also necessary to compete. Because 99 percent of the animals raised for food in this country are grown in factory farms where these practices are commonplace, virtually all of the animal products consumed in the United States come from animals treated in these ways.

  By the way, if the way your meat is produced bothers you, you might want to think twice before sharing your opinion too widely (or make sure your opinion is solidly grounded in fact). A growing number of states—thirteen at last count—have laws forbidding “food disparagement.” That's right—if you thought libel and slander cases just featured movie stars suing tabloids for gossiping about their love lives, think again. It's unlawful to defame food in a quarter of US states. On her show in 1996, Oprah Winfrey said of the threat of Mad Cow disease: “It has just stopped me cold from eating another burger! I'm stopped!”21 When Texas cattle ranchers sued her for food disparagement, seeking $12 million in damages, she prevailed only after spending years in litigation and an estimated $1 million in legal fees.

  Enforcement Challenges

  Even where state anticruelty laws aren't subject to customary farming exemptions, these laws are difficult to enforce for a number of reasons. First, as with most crimes, violators of anticruelty laws can generally be prosecuted only if they act with actual criminal intent to commit a cruel act—simply being neglectful (that is, negligent) is not sufficient.

  Second, in most cases, only government prosecutors, not private citizens, can enforce criminal laws. In one notorious case, a San Diego district attorney declined to prosecute chicken farmers who killed thirty thousand “squirming” hens in a wood chipper because they could no longer lay eggs.22 The DA found no evidence the farmers intended to act cruelly.

  Third, violations of anticruelty laws typically occur behind closed doors on private property. Because law enforcement officers are rarely both willing and able to obtain a search warrant (which requires convincing a judge of probable cause that the target has committed a crime), the only way to obtain evidence of wrongdoing is through an undercover investigation. It's hard enough to place an investigator inside a factory farm in a state where it's legal to do so. But a number of states have made it even harder. Under pressure from meat and dairy producers dogged by a constant stream of undercover footage showing inhumane and unhealthy conditions at their facilities, at least seven states have made it illegal to enter an animal facility under false pretenses or to film or take photographs on a factory farm without permission.23 Since few investigators are eager to spend a year in jail, these so-called ag-gag laws make undercover work on farms in gagged states costly and impractical.

  Proponents of ag-gag laws are remarkably candid about the laws' main purpose: to protect industry. “Agriculture is one of our most important industries,” says Senator Joe Seng (D-IA), who introduced that state's ag-gag law. “It's sort of a protection mechanism.”24 Protection, that is, from the harmful economic effects that often result when conditions on factory farms are made public. As one rancher wrote, undercover videos “wreak havoc on the agriculture industry, which usually results in litigation, loss of jobs and a direct shot at the markets.”25

  Industrial animal farmers are as tenacious as the proverbial dog with a bone, and they've made ag-gag laws one of their main areas of focus. The lawmaking landscape changed so much while I worked on this book that I rewrote this section four times. The legislatures of Florida and New York rejected ag-gag laws in 2011 and 2012. Iowa's legislature rejected an ag-gag bill in 2011 but passed a slightly different version in 2012. When this book went to press, ag-gag laws were pending in at least six states (Arkansas, California, Indiana, Nebraska, Pennsylvania, and Tennessee) and were expected to be introduced or reintroduced in another six (Minnesota, New Hampshire, New Mexico, North Carolina, Vermont, and Wyoming). The animal food industry's enormous economic and political muscle is all the more impressive when you consider that, according to surveys, laws prohibiting unauthorized filming in factory farms are highly unpopular. In Iowa, for example, just 21 percent of voters approved the ag-gag bill that was defeated there when first introduced.26

  Wrist Slapping

  Another enforcement problem with state cruelty laws lies in the feeble and generally ineffective penalties imposed on violators. Consider the case of Daniel Clark, a pig farmer who, in the winter of 2009, abandoned 832 pigs to die in an unheated barn in Pennsylvania. The dead animals were discovered nine months later in a “mummified” condition.27 Clark was charged with 832 counts of animal cruelty, but he pled guilty to only ten counts and was fined $2,500. The remaining 822 counts were dismissed, and he received no jail time.

  Compare Clark's penalty to that of C. C. Baird, an Arkansas dog broker whose routine abuse of dogs bound for research facilities was documented in the HBO documentary Dealing Dogs. Baird, who had 750 dogs in his facility, was charged with laundering money and violating the federal Animal Welfare Act. In addition to being sentenced to six months' home detention and three years' probation, Baird was fined $262,700 and permanently stripped of his dealer's license. He forfeited another $200,000 plus seven hundred acres of land worth an estimated $1.1 million. He also paid $42,000 to animal rescue groups who helped care for and re-home the animals abused in his facility. In all, Baird paid monetary penalties totaling more than $1.6 million.

  The difference in punishments accorded to Clark and Baird for their mistreatment of roughly the same number of animals shows the enormous difference in our legal system's view of dogs and pigs. Dogs are companion animals we see every day, whose individual owners advocate for them, and they're protected under a variety of state and federal laws (although, many would argue, still not adequately). Pigs are farm animals we rarely see or think about, whose quality of life runs contrary to the profit motive of the $52 billion pork industry. Yet pigs are smarter than dogs and, like dogs, seek mental and physical stimulus and want to engage in various natural behaviors.28 Is it appropriate that the law allows farmers to abuse pigs with virtual impunity?

  Cheeseburger Laws

  Hundreds of scientific studies published in respected, peer-reviewed journals link meat and dairy to obesity and disease (see chapter 6). Having successfully used comparable studies to extract cash from those who make cigarettes, asbestos, and other harmful products, plaintiffs' lawyers have begun testing the waters to see whether obesity studies can be used to impose liability on the food industry. So far the Magic 8-Ball says, “Ask again later.” Although a court dismissed the first lawsuit against McDonald's for obesity, what's frivolous to one judge might be meritorious to another—or what lacks merit today could yield a million-dollar j
udgment in a few years (especially if evidence of industry wrongdoing comes to light). In response to this threat, the National Restaurant Association has led food industry groups in a campaign to beef up their immunity to damages from such lawsuits by urging lawmakers, often successfully, to pass what they call cheeseburger laws.

  Before considering these indigestion-causing laws, it's enlightening to look at how such legislation gets started. The American Legislative Exchange Council (ALEC) is a conservative forum where corporations and state lawmakers meet and draft corporate-friendly legislation. With the unambiguous motto “Limited Government, Free Markets, Federalism,” ALEC is the nation's leading incubator of bills that seek to protect corporations by limiting damages in lawsuits involving issues like product liability, premises liability, and asbestos liability.

  Corporations join ALEC for access to state legislators. Legislators join for perks like free trips, dinners, and theater tickets, all paid for by corporate sponsors' generous dues.29 Lawmakers introduce about a thousand of ALEC's model bills each year in their home states, and about two hundred pass. ALEC flew largely under the radar for decades but was recently in the spotlight when it was revealed that the organization is behind minority-unfriendly voter ID laws that passed in thirty-four states. After a civil rights group disclosed this legislative agenda, a number of ALEC's corporate sponsors, including McDonald's, Wendy's, Coca-Cola, PepsiCo, Yum! Brands, Procter & Gamble, and Intuit, stopped funding the organization.30