George Mason's History News Network published an article, NYT Ignores USDA Discrimination, written by Agricultural Historian, Pete Daniel. Daniel's latest book is Dispossession: Discrimination against African American Farmers in the Age of Civil Rights." His article details longstanding discrimination against African American farmers in the administration of USDA programs and raises a direct challenge to the Times reference to "career lawyers and agency officials who had argued that there was no credible evidence of widespread discrimination."
Monday, May 06, 2013
George Mason's History News Network published an article, NYT Ignores USDA Discrimination, written by Agricultural Historian, Pete Daniel. Daniel's latest book is Dispossession: Discrimination against African American Farmers in the Age of Civil Rights." His article details longstanding discrimination against African American farmers in the administration of USDA programs and raises a direct challenge to the Times reference to "career lawyers and agency officials who had argued that there was no credible evidence of widespread discrimination."
Sunday, May 05, 2013
I offer some examples specifically related to the Pigford settlement with African American farmers. First, I provide a quote from the article, and then I explain why it is misleading.
“In 16 ZIP codes in Alabama, Arkansas, Mississippi and North Carolina, the number of successful claimants exceeded the total number of farms operated by people of any race in 1997, the year the lawsuit was filed.”
- The number of farms in 1997 is essentially a meaningless statistic. While the lawsuit was filed in 1997, it relates to the preceding 15 year period (1986-1997). Farms, particularly smal farms, are not static. During this time period, there was marked consolidation of farmland throughout the country. Nationwide, trom 1978 to 1998, the number of farms declined by 300,000. Farmland changed ownership; small farmers were often forced out with larger operations purchasing their land. Farmers rented farmland one year, but not the next. Farmers went in and out of business. Reliance on a one-year snapshot near the end of a period of consolidation is misleading.
"Thirty percent of all payments, totaling $290 million, went to predominantly urban counties — a phenomenon that supporters of the settlement say reflects black farmers’ migration during the 15 years covered by the lawsuit. Only 11 percent, or $107 million, went to what the Agriculture Department classifies as “completely rural” counties.”
- Research backs up what "the supporters of the settlement say," and the article should have said so. The settlement monies were paid out 15-20 years after the discrimination occurred. In many instances, discrimination had caused farmers to lose their farm and forced them give up on their farming ambitions. Many moved to an urban area to seek other employment. Nationwide rural-urban migration statistics from this time period provide further confirmation. The changing character of “rural” counties, and the changing definition of what it means to be a "rural" area provide additional complexity and represent relevant information that has been left out.
“Two government reports that year found no evidence of ongoing, systemic discrimination. The Government Accountability Office reported that 16 percent of minority farmers were denied loans, compared with 10 percent of white farmers, but traced the difference to objective factors like bad credit. An Agriculture Department study also found “no consistent picture of disparity” over the previous two years.”
- The article does not reference the 1997 USDA CRAT Report that concluded that minority farmers had lost significant amounts of land and farm income as a result of USDA discrimination or the 1997 USDA OIG Report that found a backlog of discrimination complaints that had never been processed, investigated, or resolved. The article does not address the string of subsequent reports (1998-2008) that found continuing problems with the processing of discrimination complaints at the USDA.
- Moreover, the loan denial rate is only one simplistic indication of loan discrimination. Discrimination complaints, when processed appropriately, reveal a host of other more common and insidious methods of discrimination including late loan approval, reduced loan amounts, lack of notice of programs, interest rate deviations, and provision of erroneous information, all of which can be devastating to a farming operation.
“Just five months after the lawsuit was filed, and without the investigative step of discovery, the Justice Department opened settlement negotiations.”
- A lengthy discovery period was hardly necessary when the government’s own investigations indicated that discrimination had occurred in a systemic and prolonged manner. Consider this listing of some of the relevant reports:
1965 U.S. Civil Rights Commission study
1966 U.S. Civil Rights Commission study
1968 U.S. Civil Rights Commission study
1970 U.S. Civil Rights Commission study
1980 OEO Investigation
1981 “A Time to Choose” USDA Report
1982 U.S. Civil Rights Commission study, The Decline of Black Farming in America”
1983 USDA Disbanded Office of Civil Rights
1987 OIG Report
1990 House Gov’t Operations Committee Hearings
1997 CRAT Report
1997 OIG Report
“The billion-dollar settlement, the judge’s opinion said, was designed to provide ‘those class members with little or no documentary evidence with a virtually automatic cash payment of $50,000.’”
- This quote is particularly frustrating to me as a law professor. It is taken from the 1999 court order approving the Pigford settlement. When I teach the Pigford litigation to my class, I highlight this predictive statement - for its inaccuracy. The large number of claims filed was a challenge to the claims review process, yet the process worked methodically to separate claims based on the evidence. While the article jumps back and forth rather carelessly between the discussing the number of applicants and the number of successful claimants, readers should be cautioned that 31% of the claims were denied. To allege that Pigford provided a “virtually automatic settlement” is wrong. The quote itself is accurate, but the story’s use of it is seriously misleading.
Saturday, May 04, 2013
A number of scholars who work in different areas related to agriculture, food, and justice co-authored a response letter to Sharon LaFraniere's article, U.S. Opens Spigot After Farmers Claim Discrimination, which appeared in the New York Times. Their response was published as a Letter to the Editor in the Times today, along with a letter from Ralph Paige, the executive director of the Federation of Southern Cooperatives Land Assistance Fund.
The letters were posted together under the heading Bias and a Settlement With Black Farmers in the online version, with the notation that a version appeared in the printed issue May 4, 2013, on page A20.
Both letters provide context regarding historical patterns of discrimination and its tragic effects. And, they criticize the Times article for its decision to focus on anecdotes of fraud and "cherry-picked examples" to tell an incomplete story.
The list of the scholars who submitted their Letter to the Editor was not included in the Times publication, but it is impressive -
Wednesday, May 01, 2013
Discrimination in the delivery of USDA programs is a painful and complex subject. I was alarmed to see errors, omissions, and misleading references in the Times article. I am very disappointed that the author appeared more interested in producing a salacious story than in treating the issue with the respect and depth that it deserved. I offer corrections and additional information.
First, the article mischaracterizes the terms of the Pigford settlement, implying falsely that all claimants received payment. In fact, 31% of those who were eligible to file claims, almost one-third of claimants, were denied relief. Clearly, some of the examples of false claims provided by the article's anonymous sources were of claims that were denied. For additional information, the Federation of Southern Cooperatives issued a Press Release that explains the claims process, correcting the misinformation provided by the Times.
Second, the article fails to explain that in each of the discrimination cases referenced, claimants were required to submit evidence that shows that they experienced discrimination and that they complained about the discrimination. Specific written documentation was not always required for some forms of relief because there was frequently no written documentation available. The failure of USDA to keep copies of discrimination complaints, borrower records, or any paper trail that would evidence illegal activities during this time period should not be used to preclude recovery by legitimate victims. Recall that these cases go back to the 1980s-90s, when USDA did not keep electronic records of their loan files and for a number of years did not even have an Office of Civil Rights to process complaints.
Third, the article implies that discrimination at USDA was a pre-1997 problem, referencing two unnamed studies on loan application approval rates in 1997. However, there are numerous studies from 1997 through 2008 that document the serious and continuing discrimination problems at the USDA.
- Government Accountability Office (GAO), Problems Continue to Hinder the Timely Processing of Discrimination Complaints (1999);
- USDA, Office of Inspector General (OIG), Evaluation of the Office of Civil Rights' Efforts to Implement Civil Rights Settlements (2000);
- GAO, Improvements in the Operations of the Civil Rights Programs Would Benefit Hispanic and Other Minority Farmers (2002);
- GAO, USDA: Major Management Challenges and Program Risks (2003)OIG Audit Report: Review of the U.S. Department of Agriculture’s Accountability for Actions Taken on Civil Rights Complaints (2007);
- GAO, USDA: Recommendations and Options to Address Management Deficiencies in the Office of the Assistant Secretary for Civil Rights (2008);
- GAO, USDA: Recommendations and Options Available to the New Administration and Congress to Address Long-standing Civil Rights Issues (2009).
When Secretary Vilsack assumed office as head of the USDA in 2009, he inherited a department plagued by decades of documented discrimination. He was confronted with official government reports stating that discrimination claims were still not being handled properly. While Pigford had been settled, many African American farmers who had missed the filing deadline complained that they had not had an opportunity to even make their case. See, e.g., Environmental Working Group series, Obstruction of Justice. Yet within the department, some long-time employees resented the settlement; indeed, no one at USDA was terminated in connection with the abuses evidenced in Pigford.
Secretary Vilsack also inherited the Keepseagle case alleging USDA discrimination against Native American farmers during the same years as Pigford, 1981-1999. This case had been in litigation for 10 years; class certification was granted 8 years before Vilsack took office; discovery had been ongoing for over 5 years. The Native American plaintiffs produced strong evidence of discrimination. The question that the Times article should have asked was - given years of official documentation of discrimination against minorities at USDA, why did it take the Department of Justice over a decade to agree to any type of settlement in Keepseagle?
While the Times article criticizes Pigford for producing too many potential claimants, the article criticizes Keepseagle for producing too few. Implicit is the allegation that there was not the level of discrimination alleged. That assumption is again naïve and misguided. The lower level of participation among Native farmers is much more accurately explained by the reality that the government's 10 year delay made a fair resolution of the case nearly impossible. The sad reality is that many of the potential claimants had died and their heirs had no way to establish their claim. Others simply could not produce the necessary information so many years after the fact. The numbers also reflect the profound mistrust of the U.S. government that is still pervasive in the Native community.
The article also failed to mention the significant non-monetary relief provisions included in the Keepseagle settlement - provisions that are designed to help build better connections and strengthen Native agriculture going forward. If settlement funds remain and can be dedicated to these types of additional efforts, is this a problem?
In 1997, the USDA's own Civil Rights Action Team (CRAT) concluded that “[d]espite the fact that discrimination in program delivery and employment has been documented and discussed, it continues to exist to a large degree unabated.” And, while “every Secretary of Agriculture has said that improving civil rights is a priority at USDA,” the report found “that with few exceptions, senior managers at the Department have not invested the time, effort, energy, and resources needed to produce any fundamental change.”
In 2007, in the Bush Administration, the USDA's Office of Inspector General designated civil rights as a major management challenge for USDA. In 2008, the Government Accountability Office (GAO) provided testimony to Congress that USDA was still was unable to effectively address discrimination complaints or to provide accurate data to report to Congress on its efforts. GAO suggested that these deficiencies called in the question “USDA's commitment to efficiently and effectively address discrimination complaints.”
Early in his tenure, Secretary Vilsack pledged to address these problems head on and "turn the page" on discrimination at USDA. He has worked very hard to do so. As noted in the Times article, not everyone at USDA appreciates his efforts. The settlement process has not been perfect. But, casting the story in the cynical tone of political agendas is profoundly insensitive to the many, many deserving claimants who just wanted their government to treat them the same way that it treated a white male farmer. The Times article missed the opportunity to accurately acknowledge the difficulties in righting past wrongs, the complexities of the different cases, and the inability of some in agriculture to move forward. I applaud Secretary Vilsack for his efforts, though imperfect. Others may not have even tried.
Susan A. Schneider
Professor of Law and Director, LL.M. in Agricultural & Food Law
University of Arkansas School of Law
Monday, April 29, 2013
Last week, the New York Times published an article that was highly critical of USDA efforts to settle longstanding discrimination claims and to compensate African-American, Native American, Hispanic, and Women farmers who showed evidence of discrimination under the farm loan programs. U.S. Opens Spigot After Farmers Claim Discrimination, by Sharon LaFraniere. The article alleged widespread fraud in the Pigford case settlement with African American farmers.
I have submitted an editorial to the New York Times that corrects some of the errors and misleading inferences contained in the article. If the Times declines my editorial, I will be posting it here.
In the meantime, the Federation of Southern Cooperatives produced a point-by-point analysis that refutes some of the specific allegations about Pigford contained in the article. As the Times article is getting widespread coverage, I reprint the Q&A portion of the Federation's response below. The original issuance and the press release is available on the Federation's website.
"Sharon LaFraniere got it Wrong!" Response to the coverage of the Pigford Settlement in the
April 26, New York Times
. . .
Article: "From the start, the claims process....encouraged people to lie"
Response: False. Claimants and the attorneys had to sign the claim form under penalty of perjury. Frivolous claims by underage individuals were screened out by the claims facilitator. While few documents existed, every claim was subject to scrutiny be a team of USDA officials. The claims were decided by experienced neutrals and, in the end, 30% of all claims were denied.
Article: "But critics, including some of the original black plaintiffs, say that is precisely what the government did when it first agreed to compensate not only those who had proof of bias, but those who had none."
Response: Every claimant had to prove bias to prevail on a claim, including identification of a similarly situat[ed] white farmer who received more favorable treatment than the black farmer.
Article: "Justice department lawyers worried about false claims....it was better to err on the side of giving money to people..."
Response: This was no giveaway. Initially 40% of all claims were denied. Some of these people appealed and, in the end, 30% of all claims were denied.
Article: "Claimants described how, at packed meetings, lawyers' aides would fill out forms for them on the spot, supplying answers..."
Response: This never happened at the 250+ meetings conducted by class counsel. They were instructed not to sign claim forms under penalty of perjury unless they believed that the individual had a valid claim. On average, they turned away 25% of the claimants and were criticized by many who believed that the claim process was too rigorous.
Article: "Accusations of unfair treatment could be checked against department files if claimants had previously received loans...but there was no way to refute what they said."
Response: Local USDA did refute claims even where no documentation existed. They often submitted affidavits disputing a claim that the person had applied for loans.
Article: "In Maple Hill .....dozens of other families shared addresses, phone numbers or close family connections."
Response: All claims were carefully screened by the EPIQ Systems, one of the foremost class action administrators in the country. Only one claim per farming operation was allowed. Multiple claims by family members were consolidated into one claim. Claims with same last names, same addresses, same telephone numbers were carefully screened to enforce the limit of one claim per farm operation.
Article: "But four-fifths of successful claimants had never done so [previously received loans]."
Response: What basis does the reporter have for making this claim? There is no data analysis on this issue. By implying that those persons are unworthy of relief or should be disregarded to avoid the possibility of fraud, that statement strikes at the very heart of this claims process-its goal of providing compensation to farmers who were excluded from USDA's programs. Of course, people who were excluded would not have previously received loans.
Article: But some critics, including some of the original black plaintiffs, say that is precisely what the government did [open up a Pandoras box] when it first agreed to compensate not only those who had proof of bias, but those who had none (emphasis added).
Response: That is incorrect. Each claim in Pigford I, to be successful, had to establish sufficient facts by the claimant's own declaration (which is proof in court like any testimony) that he or she suffered discrimination, including the names of white farmers who got the specific farm loan benefit he or she was denied. Then, USDA could, and in many cases did, submit evidence that it believed contradicted the claimants declaration. All this evidence was evaluated by a trained adjudicator. This process simply cannot be described as one in which the farmer can win without any proof of bias.
Article: Just five months after the lawsuit was filed, and without the investigative step of discovery, the Justice Department opened settlement negotiations.
Response: That statement suggests there was no discovery or litigation after five months. That is wrong. Both sides engaged in discovery and typical pre-trial motions practice for a year before substantive settlement negotiations commenced in August 1998. And the negotiations really got serious only after plaintiffs won their motion for class certification in October 1998, some 14 months after the case was filed.
• The story is largely anecdotal - sure there are people at USDA who are vested in the system who refuse to admit the undeniable legacy of discrimination at the department.
• The presentation of data is misleading. The number of farms operating in 1997 is essentially irrelevant. The case covers a 16 year period during which there were over 125,000 African Americans engaged in farming at one time or another.
• Minimal documentation was required because 1) USDA destroyed the denied loan applications and civil rights complaints; 2) the case went back to 1981 so many folks had lost or destroyed their own records. It went back to 1981 because USDA shut down its civil rights office in the arly 80's so minorities were denied the opportunity to present their claims at a time when they would have had records.
• Out of 503 cases referred to the FBI, they chose to investigate 60 - 3/10 of 1 percent of the 22000 claims. That is minuscule.
• The denial of credit and benefits has had a devastating impact on African American farmers. According to the Census of Agriculture, the number of African American farmers has declinedfrom 925,000 in 1920 to approximately 18,000 in 1992. [USDA Civil Rights Action Team Report] CRAT Report at 14. The farms of many African American farmers were foreclosed upon, and they were forced out of farming. Those who managed to stay in farming often were subject to humiliation and degradation at the hands of the county supervisors and were forced to stand by powerless, as white farmers received preferential treatment.
Monday, April 22, 2013
With a huge hat tip to The Food Dialogues, the BIO International Convention, and BIOtechNOW, Agricultural Law is pleased to rebroadcast the April 22, 2013, Food Dialogues, presented at the 2013 BIO convention in Chicago, by the U.S. Farmers & Ranchers Alliance®.
Colleen Lerro's article for BIOtechNOW presents the key details:
The author of "Rural Inheritance" is Hannah Alsgaard, a 2012 graduate of the University of California, Berkeley, School of Law (Boalt Hall), who is currently clerking for Judge Roberto Lange of the District of South Dakota, in Pierre. Ms. Alsgaard grew up in Yankton, South Dakota, so she knows well the milieu of which she writes. The abstract for the article follows, and you can download the full text here:
Farmers are farmers’ sons. Notable in our modern day, heralded by many as a gender-neutral society, it is farmers’ sons, not farmers’ daughters, who become farmers and take over ownership and management of the family farm. It has long been true that agricultural knowledge and land have passed through generations of men. In contrast, daughters, even today, are neither considered to be farmers nor likely to inherit family farmland. This Article begins by chronicling how farmland is inherited (by sons) then discusses why the pattern of excluding women continues. There have been substantial legal changes in the United States impacting land inheritance and ownership, culminating with the Equal Protection Clause’s extension to gender discrimination and the gender-neutral Uniform Probate Code. Social changes have also been tremendous, but even legal and social developments have been unable to correct gender disparity in farm inheritance. After exploring many legal and social factors, I conclude it is grooming – at the familial, governmental, and social levels – that plays the most vital role in training future farmers and mainly accounts for the gender difference in farm inheritance and the farming profession. This Article ultimately proposes girls must be groomed to farm in order to rectify the vast gender disparity in the ownership and management of family farms. A three pronged approach will be needed to remedy the situation, specifically: changing the role of lawyers, educating girls and women, and educating testators. What remains most important is that daughters are given the same opportunity as sons to farm based on merit, rather than being excluded from farm inheritance merely because of their gender.Cross-posted to Legal Ruralism.
Saturday, April 20, 2013
Yesterday, I posted on the Strawberry Sustainability project underway at the University of Arkansas, Regrowing a Regional Food System. My post included a particularly well done video that tells the story. I wanted to emphasize the importance of agricultural research directed toward sustainable production and local farming efforts.
Today, I offer a follow-up post. Additional information about the project reveals that the Walmart Foundation donated $3 million to the University of Arkansas Division of Agriculture for the project. The goal of the donation is "fresher strawberries for consumers and an economic boost for local farmers throughout the country." A related goal could be more local strawberries sold at Walmart. That seems like a win-win to me.
The donation went to the Center for Agricultural and Rural Sustainability, (CARS). The center will create and manage a national competitive grants program, awarding money to other public universities with agricultural research and outreach programs with projects to "expand where strawberries can be grown, enabling shorter trips for the berries between farm and consumer."
CARS involves interdisciplinary efforts across campus, beyond the horticulture experts mentioned in the video, and the strawberry project is similarly collaborative. "The ongoing collaboration between land grant universities, agricultural producers, food companies, and retailers is critical to improving quality, safety and efficiency, and reducing negative impacts across the agricultural supply chain," said professor Marty Matlock, engineering program director for CARS. Marty is also the Executive Director of the Office of Sustainability at the University of Arkansas; his commitment to sustainability runs deep.
CARS will seek project proposals through its strawberry sustainbility initiative and will award grants in May to coincide with National Strawberry Month.
Friday, April 19, 2013
Researchers are now trying to help recreate that regional food supply while also expanding the growing season to meet consumer demand. This excellent short-takes video from the University of Arkansas talks about the current research to restore and expand regional strawberry production. To me, these folks are heros - and their work reminds me of how important agricultural research can be as we try to chart our way forward to build a more sustainable food system.
Sunday, April 14, 2013
Section 735 of the bill - now known as the "Monsanto Protection Act" was one of several unrelated "riders" that were tacked on to the appropriations bill in the Senate. It's inclusion prompted a firestorm of criticism about the ability of powerful industries to influence the government and provoked numerous write-in campaigns.
The text of the now infamous provision is as follows:
In the event that a determination of non-regulated status made pursuant to section 411 of the Plant Protection Act is or has been invalidated or vacated, the Secretary of Agriculture shall, notwithstanding any other provision of law, upon request by a farmer, grower, farm operator, or producer, immediately grant temporary permit(s) or temporary deregulation in part, subject to necessary and appropriate conditions consistent with section 411(a) or 412(c) of the Plant Protection Act, which interim conditions shall authorize the movement, introduction, continued cultivation, commercialization and other specifically enumerated activities and requirements, including measures designed to mitigate or minimize potential adverse environmental effects, if any, relevant to the Secretary’s evaluation of the petition for non-regulated status, while ensuring that growers or other users are able to move, plant, cultivate, introduce into commerce and carry out other authorized activities in a timely manner: Provided, That all such conditions shall be applicable only for the interim period necessary for the Secretary to complete any required analyses or consultations related to the petition for non-regulated status: Provided further, That nothing in this section shall be construed as limiting the Secretary’s authority under section 411, 412 and 414 of the Plant Protection Act.Unpacking the legalese, the provision applies in a situation where the USDA has approved a genetically-engineered crop by granting it "non-regulated" status, but a federal court finds that it is likely that the USDA action was inappropriate or at least premature under the applicable federal statutes. In this situation, a court would ordinarily have the authority to decide whether or not to issue a temporary injunction that would essentially stop the effect of the agency action until the case was resolved. Section 735 provides that regardless of what the court holds, the USDA must immediately grant any farmer's request for "temporary permit(s) or temporary deregulation" to "authorize the movement, introduction, continued cultivation, [and] commercialization" of the product.
In a previous post, I expressed my personal views on the genetic engineering debate, Thoughts on the Regulation of Genetically Engineered Food Products.
My comments here on Section 735 relate directly to process, the checks and balances built into our legal system, and the danger of using inappropriate means to achieve political ends.
Checks and Balances: The Authority of the Courts
The ability of the federal courts to review the actions of administrative agencies such as the USDA is a fundamental component of the checks and balances that make up our legal system.
Consider, for example, the Administrative Procedure Act (APA), 5 U.S.C. § 501 et seq., the hallmark of U.S. administrative law since it was enacted in 1946. The APA specifically sets up a process for U.S. federal courts to directly review agency decisions, determining whether they are "arbitrary and capricious, an abuse of discretion, or otherwise not in accordance with the law."
Any law that interferes with the ability of a court to enjoin an agency action that is unlawful disrupts the careful balance of our legal system. If a federal court determines that the law has been violated with respect to the approval of any new product or substance, that court should have the ability to enjoin the release. Any decision regarding the balance of harm and injury that might be caused by an injunction should be left the authority of the court. To deny the court this authority is to completely undercut the review process.
An Offense to the Legislative Process
Congress's practice of slipping unrelated provisions into massive appropriations bills is not new. But, it is a practice that should be severely limited. The facts that underlie the enactment of Section 735 provide a bold and egregious example of a process gone awry.
Section 735 was anonymously slipped into the bill during committee. Senator Mikulsi, chair of the appropriations committee was initially blamed for the inclusion, but she denied involvement. The Baltimore Sun reported that she "understands the anger over this provision. She didn’t put the language in the bill and doesn’t support it, either." Mikulski says she doesn't support 'Monsanto rider' in funding bill.
Lawmakers on both sides of the aisle disavowed any knowledge of Section 735 despite the fact that Senator Tester, joined by Senators Boxer, Gillibrand and Leahy attempted to delete Section 735 by amendment. They were unable to obtain a vote on their amendment. Senator Tester's impassioned plea to reject Section 735 on the Senate floor has been reprinted in a number of blogs. See, e.g., Natural Capital by Duncan Gromko, Section 735 of the 2013 Appropriations Act: AKA The Monsanto Protection Act.
Eventually, Politico reported that Senator Roy Blunt from Missouri owned up to having authored Section 735 and other ag-related riders. Big Agriculture Flexes its Muscle, by David Rogers. After the fact, lawmakers argued that they had no choice to pass the entire bill, including Section 735, or risk government shutdown.
To understand the public's reaction to this type of Congressional shenanigans, one needs only watch the Jon Stewart Daily Show discussion of this issue. It's the first segment in the episode available here on hulu, The Daily Show with Jon Stewart, April 3 and is embedded below. Does anyone need wonder why public approval ratings for Congress are so low?
The Dangers of Using Inappropriate Means to Achieve Political Ends
Consider the far reaching powers of administrative agencies. Environmentalists and anti-regulation advocates alike have both used the authority of the courts to challenge agency action.
In this case, the provision that undercuts the authority of the court is favored by many in the biotechnology industry and opposed by those who seek additional regulation. The tables could easily be turned. Consider an effort to challenge a regulation or to seek court action to stop an agency from regulating any activity. Should Congress be allowed to pass a law that would hamper judicial authority and force the agency to continue with its challenged activity while the matter is tied up in court?
The ability of a court to decide a particular matter, including the issuance of a temporary injunction, on the merits of the case is not a matter with which Congress should interfere. Particularly when Congress is unable or unwilling to openly debate the matters that it passes into law.
Thursday, April 11, 2013
This is a valuable preparation course and learning experience for students interested in agriculture and the ongoing debate about agriculture as a production system. Students will learn how to analyze legal arguments, statutes, regulations, and judicial opinions related to animals and agricultural production. Students will learn how to respond in a professional and accurate fashion to the legal, public policy, and scientific issues involved in the use of animals in agricultural production. Such issues are often at the forefront of the animal rights movement.
Wednesday, April 10, 2013
I understand that a business may feel betrayed when a worker takes a position with ulterior motives. But, the agricultural industry is making a huge mistake if they believe that this issue is about vegan activists, as some mistakenly claim. The livestock industry needs to step back, engage in some soul-searching self reflection, and listen to their customers.
Do producers and processors really want their message to be - "yes, all these illegal activities are going on, but the problem is that no one should be taking pictures?" Is that really the problem?
The video exposes that have involved workers have provided evidence of illegal activity. State legislatures that "go after" those who took the pictures are, in effect, stating that there is illegal activity going on - we just don't want anyone to alert the press or the officials. Is that really the message the meat industry wants to send?
The issue of animal welfare in livestock production has been on a path destined for conflict for a number of years.
Animal science in the larger sense has been producing phenomenal studies that show that animals have far more sentience, cognition, and even emotion than ever before realized. These studies are not just being reported in the science journals and espoused by animal welfare advocates. Consider last week's Wall Street Journal article, The Brains of Animals, with the headline, "New research shows that we have grossly underestimated both the scope and the scale of animal intelligence."
Meanwhile the livestock industry has catapulted in the opposite direction. We have devised ways to crowd animals into even smaller spaces, concentrate them into larger and larger flocks and herds, and developed new methods of containment. When disease and behavior problems result, we confine them more rigorously, clip and trim them, and feed them antibiotics. From an economic standpoint, it has worked. It has produced the cheapest meat that the world has ever purchased. There are problems other than animal welfare, such as antibiotic resistance and concentration of manure, but let's just consider the animal welfare issues.
What the industry needs and what consumers are asking for is an honest discussion of how we can reconcile these very different trajectories. What does it mean to raise an animal humanely? The livestock industry can bury its head in the sand and pretend that this issue is all about vegetarians, or it can wake up and engage in the issue with honesty, transparency, and self-reflection. And, the animal science world can and should debate why there is such a wide divergence between scientists on the issues of animal welfare.
I know many farmers that have become uncomfortable with the way that they were raising their livestock. They are not vegetarians; they are not animal rights activists. They are farmers who want to be good stewards of the animals under their care, and they are being pushed by economic pressures to operate in ways that they are uncomfortable with. Some have gone out of the livestock business because of this.
Same with ordinary consumers. See, e.g., Pork growers: Don't Ignore Customers - Restaurants will Begin Eliminating the Product from Menus if Changes Aren't Made.
Now, is the time for dialogue and transparency, not for state laws criminalizing those who deliver the message.
Thursday, March 14, 2013
Alexandra Wexler of the Wall Street Journal reported this week, Big Sugar Is Set for a Sweet Bailout: Candy Makers Will Suffer if the U.S. Government Buys Sugar.
I am not usually moved to write about my concerns for the candy industry. My concern about sugar generally goes in the other direction. For example, consider the upcoming IATP webinar, Sickly Sweet: The Science and Policy of Fructose Overconsumption in America (Mon., Mar. 18, 2013 11:00 a.m - 12:00 p.m. CDT) and the recent book by Michael Moss, Salt Sugar Fat: How the Food Giants Hooked Us.
The sugar program has been around for a long time. Although sugar support goes back to the 1934 Sugar Act, the origin of our current policy is found in the Agriculture and Food Act of 1981. The focus is on supporting the domestic sugar industry. For an excellent critique of the program, packaged within a clever illustration of trade policies affecting the "American coffee service" (coffee, cream and sugar), see Jim Chen's article, Around the World in Eighty Centiliters, 15 Minnesota Journal of International Law 11 (2006).
Part of its longevity is that the program is continually touted as operating "at no cost to the federal government." Marketing allotments restrict the amount that sugar processors can sell and import quotas restrict the quantity of foreign sugar allowed to enter the U.S. market. This keeps sugar prices high and ensures farmer and processor profitability. For a good description of how this is supposed to work, see the USDA Economic Research Service Sugar and Sweeteners policy webpage.
As Remy Jurenas of the Congressional Research Service wrote in the report, Sugar Program Proposals for the 2012 Farm Bill, "[s]ince the program records no outlays, its future did not receive attention among the proposals submitted to the House and Senate Agriculture Committees for revising the farm safety net and reducing farm program spending."
However, as the 2000 GAO Report pointed out, and as the food manufacturing industry has long argued, keeping sugar prices high means that the cost is passed on to consumers. The GAO estimated the program's cost to the U.S. economy at $700 million in 1996 and $900 million in 1998. The Wall Street Journal reports that "[t]he National Confectioners Association, which represents about 350 candy companies, including Mars, Hershey and Nestlé, estimates that the U.S. Sugar Program has cost consumers about $14 billion since the Farm Bill's passage in 2008."
Should we care that sugar is too expensive? I have long been an advocate for farm policies that are based on good food policies. So, generally, no, I don't mind that the price of sugar is higher than it would otherwise be.
However, here are some of the related problems. First, high sugar prices are often listed as a factor in the ubiquitous use of high fructose corn syrup as a sugar substitute. We have created an entire industry supported by high sugar prices.
Second, the environmental problems associated with the domestic sugar cane industry raise serious questions about the wisdom of providing support. Wetland drainage and flood control efforts by the sugar cane industry (often supported with other federal subsidies) have been devastating to the Everglades in Florida. As sugarcane production is very chemically intensive, agricultural pesticides and fertilizers have significantly worsened the water quality problems there. For an informative rant on the government favors and the problems associated with sugar cane production, see Big Sugar, see Timothy Carney's opinion piece on the American Conservative blog, Not So Sweet: How Big Sugar Made Slaves out of Guest Workers (June 5, 2006).
Third, the sugar beet industry has been very profitable, some argue, too profitable. While the processors fend off labor complaints, other farmers complain that sugar beet farmers drive farm rent prices too high, pricing others out of the market. The GAO report expressed concern that "[e]conomic inefficiencies" occur because "the sugar program’s artificially high domestic prices encourage farmers to grow sugar beets instead of another crop, such as wheat."
So, here we are, once again, encouraging farmers to use our precious soil and water resources to grow a crop that we now realize is not good for us.
The situation becomes even more complex when you recognize that sugar beet farming is a closed universe. Not everyone gets to grow sugar beets. You have to belong to the sugar beet cooperative in order to have a market for your product. Coop membership is a very valuable asset in and of itself. It is a pretty sweet system (pun intended), at least if you are a sugar beet grower or processor. Even aside from whether or not we should be "growing sugar," shouldn't this be the kind of set up that could work in a free market?
Well, maybe or maybe not - add to the list a new problem - this year, there may be a direct cost associated with the "no cost" sugar program. This brings us back to the current news. Bloomberg Businessweek reports that the U.S. has the "biggest [sugar] glut in more than a decade." Raw sugar prices are down 37%. This raises a problem with respect to the non-recourse loans that the USDA has made to the processors. Under the USDA non-recourse loan programs, loan recipients can elect to either pay back the loan, keeping the crop (if the price is high) or forfeit the crop (if prices are low). Based on current prices, the USDA may end up with a lot of sugar. While the Wall Street Journal references 400,000 tons, Bloomberg speculates that the number could be double that.
The financial cost comes from of a provision in the 2008 Farm Bill that requires the USDA to sell forfeited sugar to our corn-based ethanol producers.
According to the USDA economist quoted by the Wall Street Journal, "[t]o entice ethanol producers to buy sugar to mix in with corn, the USDA expects it will have to take a 10-cent loss on every pound of sugar it sells, bringing the total to $80 million if 400,000 tons are purchased."
Some days, I am really glad that I am not Secretary Vilsack, trying to sort this stuff out.
A lot of people talk about throwing away the complicated tax code and starting over. I think we could use a wholesale, thoughtful look at all of the farm programs. Even the "no cost" programs. What should we support, how should we spend limited dollars, how should we spend limited natural resources, and what kind of food do we want?
Wednesday, March 06, 2013
As it turns out, De Schutter, the UN special rapporteur on the the right to food, brings together issues of gender equality and food security in his op-ed in a way that shows the link of both to, you guessed it, poverty. As most of us know, women are more likely than men to be living in poverty, wherever they are in the world. Turns out, according to De Shutter, as women get more and more responsibility for growing food in the developing world--partly as a result of male migration for work--women's poverty and hunger, along with that of their families, is exacerbated, not eliminated.
Specifically, De Schutter discusses a report released today to the United Nations Human Rights Council in which he calls for a "comprehensive, rights-based approach focused on removing legal discrimination and on improving public services — child care, water supplies, sanitation and energy sources — to reduce the burden on women who farm."
Noting women's increasing roles "on the front lines of the fight to sustain family farms," De Schutter asserts that gender discrimination and stereotyping lead to pervasive discrimination against women, hindering their ability to overcome poverty and hunger. Some manifestations of this discrimination "den[y] small-scale female farmers the same access men have to fertilizer, seeds, credit membership in cooperatives and unions, and technical assistance." Just as problematic, if not more so according to De Schutter, are the burdens associated with traditional gender roles that leave women expected to do "unremunerated household chores like cooking, cleaning, fetching water, collecting firewood and caring for the very young and the elderly." De Schutter notes that these activities are equivalent "to as much as 63 percent of gross domestic product in India and Tanzania," and that these endless tasks keep women from having the time they need to "attend classes, travel to markets to sell produce or do other activities to improve their economic prospects."
De Schutter provides success stories from Bangladesh, the Philippines and China, mostly about programs that look at first blush unrelated to farming and food. These programs have, among other things, provided obstetric and other health services, educated women about domestic violence, enhanced education for children, supplied clean water and latrines, and employed women on rural road maintenance crews. Yet as apparently unrelated to farming as these programs are, all of these have had the knock on effect of enhancing women's farm productivity and helping to alleviate hunger.
De Schutter does not mention the role that CEDAW--which includes specific rights for rural women--can play in all of this, but that is a topic I have written about extensively here, here, and here. This article is about empowerment of India's rural populations in particular.
Kudos to De Schutter--and the United Nations--for seeing food security as part of a much wider web that implicates women's agency and well-being.
Cross posted to Legal Ruralism.
Sunday, March 03, 2013
I thought to follow up Susan’s post below with an introduction to “A Place at the Table” from the Los Angeles Times.
“A Place at the Table” takes on hunger in the U.S.
Filmmakers Kristi Jacobson and Lori Silverbush’s new documentary examines the politics and possible ways out.
By John Horn, Los Angeles Times (February 28, 2013)
When people think of hunger, they might picture a starving Third World child. The makers of the new documentary ‘A Place at the Table’ suggest the face of undernourishment can be found much closer to home: Tens of millions of U.S. citizens go to bed hungry every night. ‘Americans are for the most part unaware of how vast the problem is,’ said Kristi Jacobson. She co-directed the film, which premieres in limited release this weekend, with Lori Silverbush, who added, ‘You can’t see hunger in America.’
In keeping with the modern wave of activist non-fiction filmmaking, ‘A Place at the Table’ is no impartial documentary — albeit without a Michael Moore-like rabble rouser. Instead, it is a combination primer and jeremiad, an investigation into how a country with so many resources nevertheless has 16% of its population living in households that struggle with hunger and how federal subsidies benefit agribusiness at the expense of the public’s well-being.
While laying out possible solutions, ‘A Place at the Table’ strongly suggests inaction is the worst possible path, particularly because of hunger’s grave health consequences. ‘The cost to the nation is astronomical,’ Jacobson said.
The movie’s genesis was a phone call Silverbush and her husband, the New York-based chef and ‘A Place at the Table’ executive producer Tom Colicchio, received from a middle school principal.
The couple were mentoring a 12-year-old, and the administrator was on the line to report that the student was rummaging through the trash looking for food. She was one of the invisibly hungry: To unsuspecting eyes, she looked well fed but was actually among more than 16 million U.S. children suffering from hunger or ‘food insecurity,’ a condition where the prospects of filling, healthful meals are doubtful. ‘She was absolutely the poster child for malnutrition,’ Silverbush said of the student, who had suffered from developmental delays and fell asleep in class. [….]
As the film (and a companion book) point out, the U.S. Department of Agriculture found that nearly 14 million Americans lived in such food deserts, where they have low access to supermarkets or large grocery stores. At the same time, low-income and even working-class families can’t afford to buy fresh produce and quality proteins to feed themselves. If you have only a few dollars to eat, in other words, processed foods will fill you up far cheaper than fruits and vegetables. Federal subsidies, the movie argues, help already profitable large farmers keep ingredient costs down for processed foods, while the smaller farmers who plant produce don’t enjoy similar support. ‘We are spending $20 billion a year on agriculture subsidies for the wrong foods,’ Marion Nestle, a nutrition professor at New York University, says in the film. ‘And $20 billion would go a very long way to promoting a healthy, educated population, starting with kids.’
Those facts combine to illustrate ‘A Place at the Table’s’ dramatic linking of obesity to the high cost and scarcity of nutritional food. Hunger and heft, in other words, are symptoms of the same problem. As the film points out, the price of fruits and vegetables has gone up about as much over the last three decade as the price of processed foods has declined. It’s why a single peach can cost about the same as a Whopper. And that, in turn, is partly driving the nation’s obesity epidemic. [….]
Thursday, February 28, 2013
Fifty million people in the U.S.—one in four children—don’t know where their next meal is coming from. Directors Kristi Jacobson and Lori Silverbush examine the issue of hunger in America through the lens of three people struggling with food insecurity: Barbie, a single Philadelphia mother who grew up in poverty and is trying to provide a better life for her two kids; Rosie, a Colorado fifth-grader who often has to depend on friends and neighbors to feed her and has trouble concentrating in school; and Tremonica, a Mississippi second-grader whose asthma and health issues are exacerbated by the largely empty calories her hardworking mother can afford.
Ultimately, A Place at the Table shows us how hunger poses serious economic, social and cultural implications for our nation, and that it could be solved once and for all, if the American public decides — as they have in the past — that making healthy food available and affordable is in the best interest of us all.
Sunday, February 24, 2013
The FDA published its 2011 Summary Report on Antimicrobials Sold or Distributed for Use in Food-Producing Animals. Under the Animal Drug User Fee Amendments, codified in the Federal Food, Drug & Cosmetic Act at 21 U.S.C. § 360b, sponsors of applications for new animal drugs that contain an active antimicrobial ingredient are required report to the FDA each year, providing data on the amount of sold or distributed for use in food-producing animals. The law also now requires that FDA make the information compiled public. The report is not publicized, and it provides only the bare numbers. However, given that such a large percentage of the antibiotics produced in the U.S. are used for livestock feed, and given concerns about antimicrobial resistance, the report provides important information.
And, speaking of resistance, the National Antimicrobial Resistance Monitoring System (NARMS) also issued its 2011 report this month, reporting on the antimicrobial resistant bacteria it found on meat products. NARMS is a joint project of the FDA, the CDC and 11 state public health laboratories, and it tests retail meat products for the presence of antimicrobial resistant strains of bacteria. Again, this is extremely important data, but its release is provided without the kind of explanation that most consumers can readily understand.
Few major media outlets covered the release of these reports, although credit is extended to Wired for an excellent article by Maryn McKenna, Antibiotics and Antibiotic-Resistant Bacteria in Meat: Not Getting Better. Here are links to some of the commentary that was published to explain the reports.
- Dr. David Wallinga, Senior Advisor in Science, Food and Health at the Institute of Agriculture & Trade Policy wrote, Animal Antibiotic Use Continues Upwards, FDA Keeps Blinders On.
- Bill Marler posted his thoughtful analysis on the Marler Blog, 2011 Retail Meat Report of the National Antimicrobial Monitoring System (NARMS) is Out.
- The Center for Infectious Disease Research & Policy at the University of Minnesota provided a very helpful summary, Bacteria in Meat Show Growing Drug Resistance, FDA Says, by Robert Roos.
- The Pew Campaign on Human Health and Industrial Farming published Record High Antibiotic Sales For Meat and Poultry Production, including its graphical representation of the use of antibiotics in the U.S.
- Helena Bottemiller at Food Safety News dug into the data and provided a helpful interpretation. FDA Data: Slight Uptick in Animal Antibiotic Use, Resistance Remains Issue in Meat.
Not all of the drugs used in livestock production are used for human treatment. The 2011 data shows a welcome decline in the use of Sulfa drugs, often used in humans. In contrast, Ionophores, which are not currently used to treat humans, showed an increase in animal use, largely in poultry production.
However, Dr. Wallinga noted that:
Penicillins and tetracyclines sold for animal use increased for the second year in a row. From 11.5 million pounds in 2009, sales rose to 14.4 million pounds in 2011. The two classes of antibiotics remain the most commonly used antibiotics in livestock and poultry, despite their obvious import for treating infections in people as well. In 2011, animal sales accounted for 38 percent of total penicillin sales and 98 percent of total tetracycline sales, including in humans.One of the concerns about the overuse of antibiotics in livestock production is that we are encouraging the development of antibiotic resistant strains of dangerous bacteria. This is where the study of antimicrobial resistance in retail meat is important. Summarizing the NARMS report, Helena Bottemiller noted that:
Drug resistance among Salmonella isolates increased all around. In 2010, the percentage of isolates that showed drug resistance was about 50 percent, while in 2011 it had increased to nearly 55 percent.
Resistance to cephalosporins, a class of drugs the FDA restricted in early 2012, increased between 2002 and 2011. Third generation cephalosporin resistance increased, in chicken from 10 to 33 percent and in ground turkey from 8 to 22 percent. . . .
The NARMS data also indicate that there was a significant increase in ampicillin resistance over the last decade among retail chicken, from nearly 17 percent to around 40 percent, and in ground turkey isolates from 16 percent to 58 percent. Ampicillin can be used in human medicine to treat infections, including Salmonella.
More than 27 percent of all chicken isolates showed resistance to five or more classes of antibiotics and in ground turkey isolates researchers found 10 different serotypes with resistance to six or more classes of antibiotics.The Animal Health Institute, the lobbying organization for the veterinary pharmaceutical companies has not commented on the recent reports, but has consistently maintained that "[a]nimal antibiotics make our food supply safer and people healthier. Antibiotics are a critical tool to prevent, control and treat disease in animals. In doing so, they also reduce the chance of bacterial transmission from animals to humans." While antibiotics are clearly needed in animal production for the treatment of disease, the data indicates that their continual use in feed as a disease prevention method and to promote rapid growth is problematic.
Representative Louise Slaughter, a long time proponent of legislation to reduce antibiotic use in livestock production addressed the report through a press release titled, We Are Standing on the Brink of a Public Health Catastrophe.
Last October, IATP published a bibliography of studies, No Time to Lose: 147 Studies Supporting Public Health Action to Reduce Antibiotic Overuse in Food Animals.
Tuesday, February 19, 2013
On Tuesday, attorneys for the largest agrochemical corporation in the world, Monsanto, will present arguments before the Supreme Court asserting the company’s rights to the generations of seeds that naturally reproduce from its genetically modified strains. Bowman vs. Monsanto Co. will be decided based on the court’s interpretation of a complex web of seed and plant patent law, but the case also reflects something much more basic: Should anyone, or any corporation, control a product of life?
The journey of a 75-year-old Indiana farmer to the highest court in the country began rather uneventfully. Vernon Hugh Bowman purchased an undifferentiated mix of soybean seeds from a grain elevator, planted the seeds and then saved seed from the resulting harvest to replant another crop. Finding that Bowman’s crops were largely the progeny of its genetically engineered proprietary soybean seed, Monsanto sued the farmer for patent infringement.
The case is a remarkable reflection on recent fundamental changes in farming. In the 200-plus years since the founding of this country, and for millenniums before that, seeds have been part of the public domain — available for farmers to exchange, save, modify through plant breeding and replant. Through this process, farmers developed a diverse array of plants that could thrive in various geographies, soils, climates and ecosystems. But today this history of seeds is seemingly forgotten in light of a patent system that, since the mid-1980s, has allowed corporations to own products of life.
One of Monsanto’s arguments is that when farmers save seed from a crop grown from patented seed and then use that seed for another crop, they are illegally replicating, or ‘making,’ Monsanto’s proprietary seeds instead of legally ‘using’ the seeds by planting them only one time and purchasing more seeds for each subsequent planting.
This logic is troubling to many who point out that it is the nature of seeds and all living things, whether patented or not, to replicate. Monsanto’s claim that it has rights over a self-replicating natural product should raise concern. Seeds, unlike computer chips, for example, are essential to life. If people are denied a computer chip, they don’t go hungry. If people are denied seeds, the potential consequences are much more threatening.
Although Monsanto and other agrochemical companies assert that they need the current patent system to invent better seeds, the counterargument is that splicing an already existing gene or other DNA into a plant and thereby transferring a new trait to that plant is not a novel invention. A soybean, for example, has more than 46,000 genes. Properties of these genes are the product of centuries of plant breeding and should not, many argue, become the product of a corporation. Instead, these genes should remain in the public domain.
The seed industry also claims that if patents are made narrower in scope, innovation, such as devising environmentally sustainable ways to farm, would be stifled. However, evidence casts doubt on the prevalent assumption that positive environmental impacts have resulted from their seed technologies. [....]
When arguments from both sides have been presented, the Supreme Court justices will have to thoroughly consider the many complexities of patent law as it pertains to self-replicating organisms. But taking a few steps back from the microscope and the lawbooks, they may find that there is a discussion to be had about a much deeper question: the appropriate role of ownership and control over the very elements of life.
(Please click on the link above for the full article.)
Image: Kale seed from the Organic Farm School.
Saturday, February 02, 2013
Our nine month course of study attracts attorneys from throughout the United States and from abroad. While some of our LL.M. candidate are recent law school graduates, many others enter the program as experienced attorneys.
And, in each of our last three years, we have been pleased to welcome visiting scholars and professors from other law schools. There are a limited number of teaching assistantships that will be available for law professors and experienced attorneys.
The University of Arkansas School of Law is located in Fayetteville, Arkansas at the foot of the Ozark Mountains. Fayetteville was described in the New York Times as "flush with youth, culture and natural beauty." For more information on the program visit our LL.M. Agfoodlaw blog.
Please help us spread that word that we are reviewing applications for the 2013-14 academic year. Those interested are encouraged to apply as soon as possible. Visit our website, send me an e-mail, or call 479-575-3706.
Susan A. Schneider
Professor of Law and Director
LL.M. Program in Agricultural & Food Law
University of Arkansas School of Law
Note that the Apple Photo above was taken by Scott Bauer, and it is part of the USDA Agricultural Research Service Photogallery, a fantastic source of photos of our food system, from farm to plate.
Friday, January 11, 2013
The slaughter of animals for food has received much-deserved media attention lately, and we can expect to hear more about domestic horse slaughter and the handling and slaughter of downed livestock. Here’s another term for your repertoire: backyard slaughter. Raising and slaughtering one’s own animals has officially reached hipster status, thanks in part to the popularity of backyard chickens (Oprah! Martha!) and Mark Zuckerberg’s year-long vow not to eat meat from animals he hasn’t personally slaughtered (a vow he allegedly kept, but that year's over). Although backyard slaughter has been used to describe a range of animal-slaughter activities, its most appropriate application is to slaughter that is exempt from federal and/or state inspection programs. This includes both smaller custom slaughter facilities and the do-it-yourself (DIY) animal owners.
For those of you unfamiliar with agricultural slaughter regulations, it helps to begin with the federal law’s distinction between meat derived from “livestock” (i.e., cattle, horses, hogs, goats, and sheep) and meat derived from “poultry” (i.e., chicken, geese, and ducks). The Federal Meat Inspection Act (FMIA) and Poultry Products Inspection Act (PPIA), respectively, authorize the USDA to regulate slaughter and processing of livestock and poultry birds for use in food sold in interstate commerce. These federally-inspected facilities (or "FI facilities") are subject to USDA Food Safety & Inspection Service (FSIS) programs and regulations, including on-site inspections. The most relevant distinction between the FMIA and PPIA is that only the FMIA attempts to set a “humane” standard for slaughter. Whereas the FMIA requires that livestock animals be “rendered insensible to pain” prior to slaughter (stunned), there is no such federal regulation for poultry slaughter.
Slaughter and processing facilities operating only in intrastate commerce must comply with state regulations that are “at least equal to” federal regulations. If the state doesn’t have its own meat inspection program (and only half of the states do), even intrastate-only facilities must pass USDA inspection for compliance with food safety and federal Hazard Analysis Critical Control Points (HACCP) guidelines. In livestock slaughterhouses, this same inspector is expected to check for adherence to USDA humane slaughter regulations.
That leaves the smaller “custom exempt” slaughter facilities, which are not required to maintain onsite inspection but are expected to comply with federal food safety regulations. FMIA’s Custom Exemption applies to operations that either 1) slaughter animals exclusively for “household use”; or 2) slaughter animals who have already been purchased “on the hoof.” In this latter arrangement, a customer purchases 1/4, 1/2, or an entire live animal from a processor who slaughters the animal for the customer at a fee. In this “freezer meat” exemption, the live animal is never in the customer’s possession. In both exemptions, federal regulations prohibit the meat from being resold, and require that it be labeled accordingly.
Depending on their location, custom exempt facility operators may be entirely exempt from animal welfare laws, as well. Some states have their own humane slaughter laws to mirror the federal law, but most of these laws exempt slaughter for “household use.” The PPIA’s custom exemption guidelines for poultry slaughter and processing are less stringent. However, only a small handful of states have humane slaughter laws that could be construed to apply to poultry birds. (For a summary of these state laws and a review of various common slaughter methods, see Jeff Welty’s Humane Slaughter Laws).
Nearly all of the animals slaughtered for meat in the U.S. pass through FI facilities: 98% of the cattle, 99% of the hogs; nearly 100% of the poultry, and 88% of the lamb and sheep (2010 statistics). Although there are far more non-FI slaughterhouses than FI slaughterhouses, a small handful of FI plants slaughter more than half the meat sold in the U.S. To use livestock slaughter as an example, although there are approximately 800 FI facilities compared to 1,900 non-FI facilities, less than .02% of the FI facilities (~14) slaughter 55% of the total cattle slaughtered for food. Similar percentages apply for hog, calf, and sheep slaughter.
All of this is to say that the number of animals slaughtered in “custom exempt,” or backyard slaughter facilities, pale in comparison overall. However, as the USDA recognizes, demand for locally-sourced meat is on the rise. So too is the popularity of DIY backyard slaughter, local “slaughter farms,” and mobile slaughter units (MSUs), which bring the slaughter to the animal owner. Still, access to legal slaughter remains the bottleneck of the local meats industry. Encouraged by inadequate state inspection efforts, enterprising outlaws (some allegedly linked to organized crime) have created a cottage industry for illegal animal slaughter.
Southern and coastal Florida has been riddled with underground animal slaughter businesses operating outside of the food safety, environmental, labor, or animal welfare regulations. Undercover videos have documented habitual, cruel animal treatment in black market slaughter farms in Tampa Bay and Hialeah, Florida (yes, that one, of the Church of Lukumi Babalu Aye v. City of Hialeah fame). Although the USDA and local prosecutors have moved to close down some of these illegal operations, the Animal Legal Defense Fund (ALDF) is assisting some fed-up local residents in filing a public nuisance suit against one prominent slaughter farm owner who has eluded prosecution.
ALDF defines these operations as backyard slaughter facilities, but I think it’s a mistake to group these criminal enterprises with boutique slaughter operations and DIY farmers, even the hipsters who lack sufficient attention span for basic animal husbandry. Although the difference in animal suffering may be only one of scale, the remedies should account for the slaughters’ intent. Neighbors Opposed to Backyard Slaughter, for example, urges that too many backyard practitioners lack the basic training to prevent unnecessary and prolonged suffering of animals they slaughter. Yet this concern would seem to support training for DIY urban farmers, just as subsistence farmers have always had to learn proper animal husbandry skills.
Not that I don’t think it’s a problem. To wit, a California man was arrested for animal cruelty recently when he tried, unsuccessfully, to kill one of his hogs with a hammer to the head. A woman who lived with him insisted that animal cruelty had nothing to do with it: “We just didn't know how to kill the pig, that's all it was.” California is one of the only states where that defense may not fly. Of the few states with humane slaughter laws, most of them don’t apply to slaughter for “household” (non-retail) use. And although every state has an animal cruelty law, most of these laws either exempt “standard agricultural practices” or fail to protect farmed animals altogether.
This illustrates a point I repeat often in my animal law classes: legal protections for animals are based solely on how or why humans interact with them, irrespective of an animal’s capabilities or emotional capacities. In other words, you may not beat your dog with a hammer, but you might be permitted to beat your pig—so long as you’re doing it to facilitate dinner.
Other reasons offered for opposing backyard slaughter are more aesthetic: it disturbs the neighbors and lowers property values. Worse, writes James McWilliams, a history professor at Texas State University who has launched a one-man campaign against DIY animal slaughter, it desensitizes people to the suffering of other living beings. Writing for The Atlantic, McWilliams asked: “How can we comfortably support a movement toward the local slaughter of sentient animals when we nurture and love 78 million dogs, 86 million cats, four million birds, one million rabbits, and one million lizards as companion animals?” This challenge conveniently disregards the 3 to 4 million unwanted dogs and cats we euthanize each year. Many of these “sentient animals” are rendered for animal feed, an inconvenient truth documented by Jonathan Safran Foer in Eating Animals.
Considering that industrial slaughter methods in the U.S. are indefensibly inhumane, isn’t nearly any alternative an improvement? Perhaps. To be candid, I’m still forming an opinion about the DIY slaughter movement. However, I agree with McWilliams on this point: too many urban and suburban animal farmers fail to adequately provide for their animals’ sizes and behavioral needs. My neighbors demonstrate this point well. Their hip new chicken coop has lovely nesting boxes and a cute little ramp for their 5 chickens to parade up and down. Yet despite the expansive size of my neighbors’ fenced-in back yard, the coop’s “yard” can’t be more than 5 feet by 3 feet.
I’m no chicken, but that doesn’t sound “free range” to me. We can do better.