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ESSENTIAL DESTINATIONS
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MONTH: JAN-FEB 06
1958 slaughter
act protects all species, say lawsuits
(Kim Bartlett)
SAN FRANCISCO, WASHINGTON D.C.––Separate federal lawsuits filed by the Humane Society of the U.S. and the Humane Farming Association contend that Congress meant the 1958 Humane Methods of Slaughter Act to cover all species who are routinely killed for human consumption.
Filed in San Francisco one month apart, both lawsuits place jurisdiction for the first ruling and first two steps of the inevitable appellate phase before the Ninth U.S. Judicial Circuit, a court which has historically been more friendly toward animals than most other jurisdictions.
USDA enforcement of the Humane Methods of Slaughter Act, as well as being sporadic and uneven, has always exempted poultry, rabbits, and ranched “wildlife” species such as bison, deer, and elk. In consequence, more than 95% of all the animals slaughtered for meat in the U.S. have had no legal protection from cruelty.
The HSUS and HFA lawsuits loosely follow the template used by the American Anti-Vivisection Society in a 1998 case contending that in 1970 the USDA improperly excluded rats, mice, and birds from federal Animal Welfare Act protection by writing them out of the definition of “animal” used in the enforcement regulations. This meant that more than 95% of all animals used in U.S. laboratories have no coverage.
In September 2000 the USDA agreed to protect rats, mice, and birds in an out-of-court settlement. The USDA then delayed implementing the settlement. In May 2002 a rider to a USDA budget bill made the exclusion of rats, mice, and birds from the Animal Welfare Act enforcement regulations an actual part of the law.
The HSUS and HFA lawsuits may have similar results, in that a courtroom victory might swiftly be followed by Congressional action to protect agribusiness instead of animals. However, this would force Congress to take a specific collective position which individual members might find difficult to defend.
Exempting rats, mice, and birds from the Animal Welfare Act had the rationale of practical necessity to avoid disrupting experiments that might extend or improve human lives. Exempting animals from the Humane Methods of Slaughter Act may be more difficult to defend, since––if the HSUS and HFA positions are validated by the courts––Congress did agree 48 years ago that cruelty could be avoided in slaughter, even with the relatively primitive pre-stunning and slaughtering technology of that time.
“Congress enacted the Humane Methods of Slaughter Act of 1958 to explicitly require that ‘cattle, calves, horses, mules, sheep, swine, and other livestock’ be slaughtered in accordance with humane methods,” explains the HSUS web site. “The law deemed only two slaughter methods humane: ritualistic or religious slaughter, such as the Jewish Kosher method, or one in which all livestock are rendered insensible to pain before shackling and slaughtering.
“In the legislation, Congress explicitly recognized that certain slaughter practices—for example, hanging conscious animals by their legs from metal shackles and slaughtering animals while still fully conscious—cause ‘needless suffering.’”
The latter is the standard method by which poultry are slaughtered.
“In 1978,” continues the HSUS explanation, “Congress amended the Federal Meat Inspection Act of 1906…The 1978 amendments added a provision that gave the USDA the authority to refuse inspection of meat, if ‘the Secretary finds that any cattle, sheep, swine, goats, horses, mules or other equines have been slaughtered or handled...by any method not in accordance with” the Humane Methods of Slaughter Act of 1958.
“Confusion arose,” HSUS contends, “because Congress called this amendment the Humane Methods of Slaughter Act of 1978. What Congress didn’t do in 1978, however, was replace the Humane Methods of Slaughter Act of 1958, or remove the original language requiring that ‘other livestock’ be slaughtered in accordance with humane methods…The all-important term ‘other livestock’ is still included in the definition of animals.”
“In most plants, live birds are hung upside down on an overhead conveyor,” Washington Post staff writer Elizabeth Williamson summarized, “and their heads are run through electrified water to stun them before a machine slits their throats, the suit states. The suit contends that birds are injured by the conveyor’s metal shackles, and that they often are not knocked out by the stun bath. Further, the suit contends, live poultry who enter the stun bath or a scalding tank later in the process defecate and inhale feces suspended in the water, potentially contaminating the meat. The Humane Society advocates gassing birds, either killing or stunning them, before they go on the processing line.”
“Consumers may be at increased risk for contracting potentially life-threatening foodborne illnessness,” contended HSUS director of public health and animal agriculture Michael Greger, M.D., to Libby Quaid of Associated Press.
USDA spokesperson Steven Cohen told Quaid that the 1968 Poultry Products Inspection Act ensures “birds are slaughtered in a manner consistent with good commercial practices, and are handled in a way that minimizes discomfort and accidental injury.”
However, “The suit cites 2004 reports of a Pilgrim’s Pride processing plant in
Moorefield, West Virginia,” wrote William-son, “in which an animal advocate videotaped workers stomping on, kicking, and throwing live chickens against a wall. Several workers were fired, but none were prosecuted.
“In a news release about the lawsuit,” Williamson continued, HSUS “also mentions a Perdue Farms chicken plant in Showell, on Maryland’s Eastern Shore, at which animal rights workers documented instances of birds who should have been dead, flapping their wings on processing lines.”
Perdue Farms contended that the wing-flapping, captured on video, was “an involuntary muscle reaction that normally occurs after death.”
The HSUS suit, filed on November 21, 2005, was followed by the HFA case on December 22, 2005. “In this action,” HFA opened, “Plaintiffs seek review of the decision of Defendant Secretary of Agriculture not to apply the provisions of the Humane Methods of Slaughter Act to the commercial slaughtering of a variety of animals that the Act was intended to benefit, including American bison, reindeer, North American elk, American antelope, rabbits, ostrich, and poultry (chicken, turkey, and duck).
“Unprotected animals are commonly slaughtered in a manner which is intensely painful and otherwise inhumane,” HFA argued. “This is a clear and direct violation of the Act, which provides in part, ‘No method of slaughtering or handling in connection with slaughtering shall be deemed to comply with the public policy of the U.S. unless it is humane.’ Reindeer, American bison, North American elk, antelope, rabbit, and ostrich all constitute ‘livestock’ within the plain meaning of the Humane Methods of Slaughter Act and the intent of Congress,” HFA contends, leaving the argument on behalf of poultry to HSUS, while taking up the case for commonly slaughtered species that are not focal to the HSUS lawsuit.
“There are about 900 federally inspected meat and poultry slaughter plants nationwide,” the HFA case notes. “According to the Government Accountability Office, USDA enforcement of anti-contamination rules in these plants has been ‘inconsistent.’ The Center for Disease Control & Pre-vention estimates that food contamination annually causes 76 million illnesses, 325,000 hospitalizations, 5,000 deaths, and costs the nation $37 billion.”
Charges
The Washington D.C. farm animal advocacy group Compassion Over Killing on January 9, 2006 renewed efforts to prosecute poultry producers for cruelty, pursuing 35 counts of animal cruelty as defined by Pennsylvania state law against Esbenshade Farms chief executive, H. Glenn Esbenshade and farm manager Jay Musser.
“Video shot by an animal activist employed at Esbenshade Farms in Mount Joy showed hens impaled on loose wires, hens unable to eat or drink because they were entangled in the wire cages, and hens left to die in aisles without food and water,” summarized Philadelphia Inquirer staff writer Harold Brubaker.
“Johnna Seeton, the Pennsylvania Humane Society officer who filed the citations with a district justice in Elizabethtown, described the conditions for the estimated 600,000 hens on the farm as “very, very bad.”
Esbenshade Farms, with multiple sites and about 2.3 million birds at any one time, is among the leading egg producers in Pennsylvania, which ranks third behind Iowa and Ohio among the U.S. states in egg production, selling about 7% of the U.S. supply.
The Compassion Over Killing undercover investigator documented the conditions at the Mount Joy farm from December 3 to December 8., 2005.
Pennsylvania law exempts “normal agricultural operations” from cruelty prosecution, but “We’re seeing something much more egregious than standard conditions,” Com-passion Over Killing executive director Erica Meier told Marc Levy of Associated Press.
PennAg Industries Association vice president Christian Herr hinted that the Ebenshade defense might contend that the allegedly cruel conditions were caused by the Compassion Over Killing investigator. “The person who obtained the video did so while he was supposed to be performing his job, which would include addressing the needs of the birds within this facility,” Herr told Levy.
Tyson Foods used a similar strategy to rebut PETA claims in May 2005 about a slaughterhouse in Heflin, Alabama, that kills as many as 100,000 chickens per day. An undercover investigator collected video from December 2004 through February 2005, which according to PETA “revealed that workers were ripping conscious chickens’ heads off, that slaughter machinery was systematically mutilating chickens, and that thousands of birds were entering the scalding tank completely conscious and being scalded to death.”
PETA claimed that the investigator was told that it is acceptable for up to 40 birds per shift to be scalded alive. Tyson Foods responded by accusing the investigator of “allowing some conscious birds to go into the scald tank for the sole purpose of videotaping what he should have been preventing.”
MOARK settlement
Activists have recently pursued state-level cruelty cases against several other leading poultry producers, seeking to establish that agricultural exemptions do not extend to common practices which fall short of what the industry itself considers good practice.
In July 2005, for example, HSUS asked Newton County, Missouri prosecutor Scott Watson to file misdemeanor cruelty charges against MOARK Industries, after Neosho farmer Rick Bussey videotaped MOARK employees tossing live chickens into a dumpster at Hathaway Farm, a MOARK facility near Neosho.
“This was cruelty,” Bussey told the Joplin Globe. “I can’t go for that, and I don’t even consider myself an animal person.”
Hathaway Farm neighbor Mark Adams, fighting a MOARK application to expand, told HSUS about the video.
“From my research, what MOARK does is an industry-accepted practice,” Watson told the Neosho Daily News. “From what I understand, they were ‘euthanizing’ birds in 55-gallon drums, cramming 45 or 50 into a drum at a time. It’s no wonder that the carbon dioxide,” used to gas so-called spent hens, “didn’t get down to the bottom.”
Watson filed the case “to show that MOARK’s euthanasia procedures were negligently inhumane, and therefore should not be exempt from cruelty laws, no matter how common they are among egg producers,” HSUS summarized in a media release.
The case ended with an October 2005 out-of-court settlement.
“Watson agreed to drop the charges against MOARK after the company reportedly deposited a $100,000 check to the New-Mac Regional Humane Society, which has been fundraising to construct a new shelter,” HSUS said. “As part of the deal, MOARK agreed to purchase ‘state of the art machines’ to euthanize spent hens.
“HSUS had no involvement with this settlement,” HSUS stipulated. “Nor is HSUS affiliated with the New-Mac Regional Humane Society, which covers Newton and McDonald counties in the southwest corner of Missouri.”
Bussey told Joplin Globe staff writer Melissa DeLoach that he did not approve of MOARK escaping a trial and advoiding any admission of guilt.
Activists prosecuted
Following a failed attempt to prosecute Wegmans Food Markets Inc. for alleged cruelty at a company-owned egg farm, Adam Durand, Melanie Ippolito, and Megan Cosgrove of the Rochester, New York vegetarian group Compassionate Consumers were indicted in October 2005 by a Wayne County grand jury on a total of 23 counts of burglary, petty larceny, and criminal trespass.
Durand, 25, and Ippolito, 21, reportedly face up to seven years in prison.
“Durand, Ippolito, and Cosgrove are accused of breaking into Wegmans’ 750,000-hen egg production facility on three occasions in July 2004 in hopes of capturing video of the hens’ living conditions,” Roch-ester Democrat & Chronicle staff writer Misty Edgecombe reported. “Wegmans was targeted in part because the Wolcott facility is the largest in New York state. Durand videotaped the visits, eventually producing a short film called Wegmans Cruelty, released in 2005. The activists also took nine injured hens from the facility, two of whom later died.”
“In November 2004, Durand and others sent raw video footage from the three raids to Wayne County District Attorney Richard Healy,” recounted fellow Rochester Democrat & Chronicle staff writer Corydon Ireland. “Healy had the state police visit the facility, but no charges were brought.”
Said Healy, “It’s unfortunate these things happen, but this didn’t rise to the level that Wegmans is running a bad operation or is cruel to animals.”
The video, wrote M. Tye Wolfe of the Ithaca Times, depicts “hens packed, sometimes nine at at time, in small cages, unable to spread their wings. Many look sickly. Some are covered with excrement from hens in the cages above. Hens are shown in cages that contain petrified chicken corpses. The activists are shown prying the calcified bodies from the cages with gloved hands. Underneath, there is footage of a hen corpse covered with beetles. Another hen apparently fell into the manure pit, and was shown gasping for breath. Most of her body was submerged in liquid excrement. That hen later died, according to the activists.
“Several hens appear to have malformed beaks,” Wolf continued. “Activists claim this comes from burning off the tips of beaks when hens are chicks. This keeps the hens from killing one another.”
East Bay Animal Advocates, listed as a co-plaintiff in the HSUS lawsuit against the USDA, in a similar attempt to initiate a cruelty prosecution in mid-2005, took 39 sick and injured chickens from a Foster Farms broiler operation in Merced County, Calif-ornia. “EBAA filed an animal cruelty complaint with Merced County Animal Control,” spokesperson Christine Morrissey said. The case was apparently not prosecuted.
On December 13, 2005, Morrissey announced that “EBAA, along with a poultry consumer, has filed a complaint with the California State Attorney General’s office,” alleging that Foster Farms’ advertising misleads consumers into believing that it raises poultry “in a humane manner and in natural, clean environments.”
A similar case pursued by PETA against the California dairy industry was dismissed in May 2003.
Mercy for Animals founder Nathan Runkle, of Columbus, Ohio, in February 2005 told Toledo Blade Columbus bureau chief James Drew that in November 2004 four members of his group “walked into four sheds at Ohio Fresh Eggs in Licking County,” a facility formerly notorious for environmental violations under the names Buckeye Farms and AgriGeneral. There, “they videotaped hens with eye and sinus infections, hens caught by the wire of their cages and under feeding trays, dead hens in cages, and one hen found alive in a trash can,” Drew wrote
The Mercy for Animals video was used in support of Compassion Over Killing’s eventually successful effort to force United Egg Producers to change the name of its “Animal Care Certified” program to “United Egg Producers certified.” The program began in 2001 to counter humane labeling initiatives such as that of Humane Farm Animal Care.
Similar tactics were recently tested in Canada. “After breaking into an egg farm he was denied permission to tour, a student at one of Canada’s premier agricultural research facilities wrote an anonymous account of what he called a nightmarish situation involving dead birds in aisles and filthy, defeathered hens in cramped wire cages,” reported Colin Perkel of Canadian Press in October 2005.
“The 22-year-old biology student at Ontario’s University of Guelph said he broke into a nearby egg barn on three occasions to document conditions, after his request to visit was turned down. An anonymous account of the break-ins at LEL Farms, along with disturbing photographs, was published in The Peak, an independent student newspaper.”
Video taken during the break-ins was released two days later by the Canadian Coalition for Farm Animals, in connection with a campaign to get the Loblaws, No Frills, and Zehrs grocery chains to stock eggs from free-range hens. ––Merritt Clifton