Animal Protection Takes Center Stage Before Supreme Court and Senate Hopefuls

Needless and Cruel Animal Testing and Extreme Hog Confinement
Can No Longer Withstand Scrutiny

It is a bit of a moment for the cause of animal protection — with factory farming on the docket of the Supreme Court of the United States and animal experimentation at the center of a highly consequential U.S. Senate race in Pennsylvania.

Indeed, last week, the justices had a robust two-hour debate on the merits of California’s farm animal protection ballot measure (Prop 12), assessing in NPPC v. Ross whether a state can restrict the in-state sale of pork, eggs, and veal from animals kept in extreme confinement on factory farms without at the same time violating the Commerce Clause principles under the U.S. Constitution. At the same time, revelations burst into the spotlight in the already contentious U.S. Senate race in Pennsylvania between Lt. Governor John Fetterman and talk show host Dr. Mehmet Oz. Allegations resurfaced over experiments of questionable purpose that caused extreme suffering of beagles and other animals at Dr. Oz’s Columbia University laboratory between 1989 and 2010.

It’s long overdue for animal issues to get their proper due at the highest levels of government. Animals are at the center of society, and they are sentient beings, experiencing pain, trauma, and fear, as well as joy and happiness, in ways similar to humans. The differences between humans and animals, as Charles Darwin observed more than 150 years ago, are matters of “degree and not of kind.” When people disregard these foundational characteristics that warrant moral concern, cruelty often follows. But with the universal embrace of anti-cruelty laws in our nation as our moral guideposts to social behavior, it’s widely accepted that we have responsibilities to animals, and that means in both random interactions with them as well as systemic uses of animals in agriculture, research and testing, wildlife management, fashion, and other major sectors of the economy.

The debate is not whether cruelty is wrong, but what are its logical applications in an increasingly heterodox nation with long traditions of animal use and exploitation.

Dr. Oz’s animal experiments roil U.S. Senate race

Animal Wellness Action has reviewed press accounts, published findings, and federal enforcement settlement terms to confirm that Oz and his research team experimented on and killed more than 1,000 animals at his laboratory. More than 325 of the victims were beagles.

A veterinarian and postdoctoral veterinary fellow at the school went public in the early 2000s about research at the laboratory led by Oz, observing that his research team inflicted needless suffering on animals and that the experimental results did not produce any positive public health outcomes. The whistleblower witnessed the inhumane treatment of dogs in experiments investigating aspects of heart function, including leaving dogs in pain and paralyzed for weeks, with no discernible research benefit, before they were euthanized or died. As principal investigator, Dr. Oz had responsibility for all animal care occurring in the lab.

The U.S. Department of Agriculture, whose animal-care personnel have responsibility for enforcing the Animal Welfare Act, cited and fined Columbia University for inhumane treatment of the animals used by the lab researchers. A settlement agreement was reached in May 2004.

Here are just a few takeaways from the report: 

  • Protocols were approved which failed to provide a complete description of evaluating pain and discomfort, and drug administration
  • Protocols were approved which indicated the improper administration of an injectable euthanasia agent
  • Protocols did not reflect adequate details on search for alternative to painful procedures
  • Pups whelped from a dog being used in a research study were euthanized with outdated euthanasia solution; drug use logs indicate the pups were not properly sedated at the time as claimed by person administering euthanasia.

Lt. Governor Fetterman has called out Oz for these experiments, and a Democrat-funded SuperPAC has put millions behind the campaign and has already produced two hard-hitting ads criticizing Oz.

This week, Animal Wellness Action is rolling out its own advertising campaign. It is doing so because Oz has not provided any assurances that he’s got a new moral outlook about the use of animals in testing.

These revelations come as some of the most important animal-testing policy debates are before the Congress. Specifically, Animal Wellness Action and the Center for a Humane Economy have pushed the FDA Modernization Act to eliminate a decades-old mandate for animal testing, and that measure, led by Sens. Rand Paul, R-Ky., and Cory Booker, D-N.J., passed the Senate unanimously at the end of September. A similar House bill, led by Rep. Vern Buchanan, R-Fla, and Elaine Luria, D-Virg., also has broad bipartisan support. We’ve worked with lawmakers on both sides of the aisle to try to forge a national consensus that we should move as quickly as we can toward a new paradigm to minimize the use of animals in testing and maximize the use of alternative methods. Oz must associate himself with this progress.

Outdated, inhumane, unreliable animal testing methods, in so many cases, are delaying progress in drug development and so many aspects of our health work in society. Pennsylvanians care about all of these concerns, and so should Oz.  How Oz handles this matter may alter the outcome of a Senate race of immense political significance.

Supreme Court Wrestles with Prop 12 and State’s Rights

California voters were foresighted, but hardly pathbreaking, in rejecting extreme confinement of farm animals by passing Prop 12 in 2018. Two years earlier Massachusetts voters, in a landslide vote of 78 percent to 22 percent, passed Amendment 3 to ban the most extreme confinement of farm animals and also to restrict the in-state sale of pork, eggs, and veal that come from the most ruthless forms of factory farming.  Arizona, Colorado, Florida, Michigan, Oregon, Washington, and other states have passed laws forbidding some forms of extreme confinement, and the biggest food retailers, including McDonald’s, Costco, and Kroger, also have condemned the use of movement-restricting gestation crates for breeding sows and battery cages for laying hens.

The legal question before the Court centers on the Dormant Commerce Clause and whether a state can restrict in-state sales of a product used in national commerce. The National Pork Producers Council (NPPC) brought the case, arguing that California doesn’t produce much pork and that out-of-state produces will have to conform their pig houses to meet that demand, creating an “extraterritorial effect.”

The industry predicts dire effects on pork producers in Iowa and other major pig-producing states if Prop 12 takes effect. But the industry was wrong to characterize its production strategies in monolithic terms. The pork industry has diversified its sow-housing systems because of new state and corporate policies and consumer demand, and that diversification of production was evident with the SCOTUS pleading submitted by Perdue, Niman Ranch, and other pig-farming outfits in favor of upholding Prop 12. Thousands of producers see California’s law as a market opportunity and the data show that pig producers, with relatively minor adjustments, have the capacity to meet California’s humane treatment standards with the sow-housing systems that have been revamped and are already in use.

Let’s remember that the NPPC and its agribusiness allies have lost all 10 challenges to California’s farm-animal ballot measures, including their most recent cases against Prop 12 in federal district courts in California and in Iowa, and then before the U.S. Court of Appeals for the Ninth Circuit. Their claims break down under careful review.

But the Justices clearly were clearly not content to rubberstamp the lower Court rulings favoring animal protection advocates and the state of California. Justice Elena Kagan seemed to grapple out loud with the concern that more trade wars between the states might result if the Court upholds Prop 12. “We live in a divided country, and the balkanization that the framers (of the Constitution) were concerned about is surely present today,” she noted during oral argument.

Pork Industry Wildly Exaggerates Effect of Prop 12

I’d submit that forbidding states to address moral and public health and safety questions through their state lawmaking processes is not going to tamp down fractures and fissures in our republic. Our multitiered system of local, state, and federal government and the authority of governments to weigh in on the subjects of the day is anything but neat and tidy. Policymaking often leaves losing parties frustrated and alienated.

But in the case of NPPC v. Ross, there won’t be major recriminations from pig farmers. They are businesspeople, and when they know the rules related to extreme confinement of their animals, they will adjust, as thousands of them already have.

As a parallel example, we need look no further than egg producers, who in NPPC v. Ross lined up in favor of Prop 12.  It was the egg producers, more than the pig farmers, who put millions of dollars into the fight to defeat Proposition 2 in 2008 — the antecedent to Prop 12.  After they lost the ballot measure fight, California egg producers and others around the nation began to regroup and change their laying-hen housing systems. Because of Amendment 3 in Massachusetts and then Prop 12 in California, as well as the cage-free commitments from McDonald’s and other food retailers, egg farmers accelerated their efforts to transition to a cage-free future. That decision, while unimaginable to producers 15 years ago, has been widely embraced and is now their new norm.

That pattern is playing out with the pork industry, but just more slowly. If the Courts settle the question in favor of California, and the major food retailers impose their new purchasing requirements, they will adapt. Farmers in the U.S. and in Europe have been nothing but resourceful when change is required.

Switching from gestation crates requires less of pig industry than it seems at first glance. While there are 130 million pigs slaughtered each year, the gestation-crate restrictions apply only to America’s six million breeding sows. Two million sows — or nearly one-third of them — are already out of gestation crates for most of their pregnancy. Contrast that with the task that faced the egg industry, which had 95 percent of its 300 million hens in battery cages. Egg producers are tasked with reengineering 95 percent of housing systems, while less than five percent of operators must adapt in the pig industry.

Pork industry leaders have long disregarded the well-being of the animals under their charge, just as egg producers did for so long. But it’s precisely because of disruptive state-based ballot measures and corporate campaigns that reforms are in motion.

If the Court rules in favor of the pig industry trade associations, vitiating states’ rights in the process and putting the federal government entirely in charge of the rules of agricultural commerce, there will be more division and more bitterness than ever before. The pig industry will not be a single step closer to convincing consumers that it’s right and proper to confine an animal so severely that she cannot even turn around. Change will come, but the question is, how much turmoil and dislocation and disruption will result before reforms are finally instituted?  The industry should rip the Band-Aid off, stop trying to force-feed their customers a product that is widely viewed as inhumane and unsafe, and engineer safer housing. 

Whether it’s with animal testing on dogs or extreme confinement of pigs in agriculture, the nation is ripe for change and for better outcomes for animals. Politicians, judges, corporate, agribusiness leaders and all other influencers should take note. Delaying the imposition of superior farming practices just creates more societal acrimony and temporarily extends the duration of unwarranted suffering for animals who deserve much better from people who profit from the sacrifices of animals.