1958 slaughter act protects all species, say lawsuits

From ANIMAL PEOPLE, January/February 2006:

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 1906ŠThe 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 methodsŠThe 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,” Compassion 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 priso
n.
“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, California. “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.