The Meat in the Sandwich: Welfare Labelling and the Governance of Meat‐chicken Production in Australia
| Published date | 01 September 2018 |
| Author | Christine Parker,Gyorgy Scrinis,Rachel Carey |
| DOI | http://doi.org/10.1111/jols.12119 |
| Date | 01 September 2018 |
JOURNAL OF LAW AND SOCIETY
VOLUME 45, NUMBER 3, SEPTEMBER 2018
ISSN: 0263-323X, pp. 341±69
The Meat in the Sandwich: Welfare Labelling and the
Governance of Meat-chicken Production in Australia
Christine Parker,* Rachel Carey,** and Gyorgy Scrinis***
This article critically examines the degree to which higher-animal
welfare label claims change animal welfare regulation and governance
within intense meat-chicken (`broiler') production in Australia. It
argues that ethical labelling claims on food and other products can be
seen as a `governance space' in which various government, industry
and civil society actors compete and collaborate for regulatory impact.
It concludes that ethical labelling can act as a pathway for re-
embedding social concerns in the market, but only when it prompts
changes that become enshrined in standard practice and possibly the
law itself. Moreover, the changes wrought by ethical labelling are
small and incremental. Nevertheless, labelling may create ongoing
productive tension and `overflow' that challenges the market to listen
to and accommodate actors (including animals) on the margins to
create ongoing incremental changes.
341
*Melbourne Law School, University of Melbourne, VIC 3010, Australia
christine.parker@unimelb.edu.au
** Faculty of Veterinary and Agricultural Sciences, University of
Melbourne, VIC 3010, Australia
rachel.carey@unimelb.edu.au
*** School of Agriculture and Food, Faculty of Veterinary and Agricultural
Sciences, University of Melbourne, VIC 3010, Australia
gyorgys@unimelb.edu.au
The authors are grateful to the stakeholders interviewed for this research and Josephine
De Costa, Geordie Fung, Joe Lasco, Adaena Sinclair-Blakemore, Zoe Jackson, and Laura
Boehm for assistance in fieldwork and article preparation. This research was funded by
Australian Research Council Discovery Project DP150102168, `Regulating Food Labels:
The Case of Free Range Food Products in Australia'.
ß2018 The Author. Journal of Law and Society ß2018 Cardiff University Law School
INTRODUCTION
Many consumers mistakenly believe that meat chickens are raised in cages
and administered hormones.
1
While this is not the case, the conditions in
which chickens (or `broilers') are raised and slaughtered are far from ideal.
They are housed in minutely controlled conditions at high densities in very
large barns to create the maximum amount of meat in the shortest possible
time.
2
In response to public concern about the way chickens and other
animals are treated, ma rketing terms, such as ` free-range', `RSPCA
Approved', `certified humane', and `animal welfare assured' have emerged
in Australia and other countries.
3
This article critically evaluates whether
these label claims make any difference to industry practice and animal
welfare governance.
The first part of the article suggests that food labelling can be seen as a
`governance space' in which labelling initiatives could help facilitate con-
testation and change in markets. This type of `political' consumerism would,
however, require both accurate labelling and interaction between label
claims and a governance network of industry, retail, government, and civil
society actors behind the label. Part two sets out the context of rapidly
expanding intense industrial chicken meat production and consumption in
Australia, and the methodology of `backwards mapping' the network of
governance behind label claims.
The third part critically examines the accuracy of the two dominant
higher-welfare label terms in Australia (FREPA free-range and RSPCA
Approved), and whether and to what degree they change the governance and
practice of meat chicken welfare. We conclude that the widespread adoption
of RSPCA Approved certification and labelling has probably led to small
incremental improvements in the welfare of the majority of meat chickens in
Australia. This is because RSPCA Approved has slightly higher welfare
standards and better monitoring and enforcement practices than government
regulation and industry self-regulation. FREPA free-range, by contrast, does
not guarantee that chickens are actually free range, does not guarantee higher
welfare standards are actually met, and applies to only a minority of chickens
(about 15 per cent). Neither label challenges the fundamentals of a system
that is largely aimed at producing more and more chicken meat more and
more efficiently to meet retailer and consumer demand for inexpensive and
abundant meat, at the expense of the chickens themselves, who are the `meat
in the sandwich'.
342
1 See V. Kite, `The Hormone Myth', at
hormone-myth/>.
2 See nn. 42 to 69 below and accompanying text.
3 Observations from our own product surveys in Australia, the United Kingdom, and
the United States (discussed below).
ß2018 The Author. Journal of Law and Society ß2018 Cardiff University Law School
The conclusion finds that any welfare improvements for meat chickens
through labelling alone are a `fragile construction',
4
dependent on a par-
ticular confluence of retailer, consumer, and social movement advocacy at a
particular time. Nevertheless, ongoing consumer and social movement
contestation of free-range and higher-welfare label claims is creating on-
going productive tension and `overflow' that may challenge market actors to
listen to and accommodate actors on the margin.
5
Thus, labelling can have
some catalysing role in changing governance and practice in the food
system.
I. EVALUATING THE LABEL AS GOVERNANCE SPACE
1. The promise of labelling
The trend towards animal welfare labelling of meat products is just one
example of a broader consumer and citizen activist concern to address the
many costs and externalities of markets.
6
Michel Callon comments that
markets constantly seek to frame certain actors, relationships, and considera-
tions as relevant to particular transactions and exclude others, yet there are
always relations that `defy framing' and it is impossible to eliminate all
`overflow'.
7
Thus a `good' market, one that works well:
is a market which welcomes and recognizes as one of its most central
constituent elements all the actors who demand to be taken into account,
including those who are considered as marginal . . . with their points of view,
their matters of concern, their proposed tools, framings and models.
8
Callon sees this as providing a normative opportunity to dynamically voice
the tensions and concerns of actors and externalities impacted by markets,
which will in turn reconfigure markets and our very ideas of politics and
economy.
9
Regulatory studies also propose that both public and private actors can find
opportunities to participate in networks of governance that regulate business
and government practice ± thus opening up business regulation to new voices
343
4 M. Miele and J. Lever, `Civilizing the Market for Welfare Friendly Products in
Europe? The Techno-Ethics of the Welfare Quality
Õ
Assessment' (2013) 48
Geoforum 63, at 70.
5 See nn. 6 to 9 below and accompanying text.
6 F. Block, `Karl Polanyi and the Writing of The Great Transformation' (2003) 32
Theory and Society 275; J. Guthman, `The Polanyian Way? Voluntary Food Labels
as Neoliberal Governance' (2007) 39 Antipode 456.
7 M. Callon, `Introduction: The Embeddedness of Economic Markets in Economics'
in The Laws of the Markets, ed. M. Callon (1998) 17±18.
8 M. Callon, `Civilizing Markets: Carbon Trading between in Vitro and in Vivo
Experiments' (2009) 34 Accounting, Organisations and Society 535, at 541.
9 id., p. 544.
ß2018 The Author. Journal of Law and Society ß2018 Cardiff University Law School
and tools.
10
David Levi-Faur's theory of regulatory capitalism observes that
there is a constant and dynamic process of regulation, deregulation, reregula-
tion through interaction, and contestation of regulation by market, state, and
civil society actors.
11
Moreover, this is not just a matter of state-centric
regulation. Rather, the contestation and regulation of the market occurs through
a network of public and private actors who each regulate and are regulated by
one another at different times.
12
Thus, private governance standards including
industry or NGO labelling and certification schemes, supermarket supply
standards, and activist publicity campaigns can all be seen as elements of
regulatory governance designed to re-embed the market in the social.
The retail label is one of the most visible and accessible spaces in which
citizen-consumers can engage with the networks of public and private actors
that govern chains of food production and distribution. It is the mechanism
by which the governance systems further back in the chain behind the label
are displayed, and a mechanism by which citizen-consumers may seek to
interpolate their views and values back into the governance of that system.
13
Label claims may provide a mechanism for social and political contestation
of the market in two ways: first, label claims can invite consumers to express
alternative social values and ideals of a good life to those offered elsewhere
in the market.
14
This may take various forms ± from halal or kosher
certification, to fair trade, environmental, and animal welfare values. It also
allows food producers and retailers to increase profit margins via market
niche differentiation and quality labelling.
15
However, as discussed below,
344
10 J. Braithwaite and P. Drahos, Global Business Regulation (2000).
11 D. Levi-Faur, `Regulatory Capitalism' in Regulatory Theory: Foundations and
Applications, ed. P. Drahos (2017).
12 K. Abbott and D. Snidal, `The Governance Triangle: Regulatory Standards
Institutions and the Shadow of the State' in The Politics of Global Regulation,
eds. W. Mattli and N. Woods (2009) 44±88; B. Eberlein et al., `Transnational
Business Governance Interactions: Conceptualization and Framework for Analysis'
(2014) 8 Regulation & Governance 1.
13 See R. Carey et al., `Capturing the Meaning of ``Free Range'': The Contest between
Producers, Supermarkets and Consumers for the Higher Welfare Egg Label in
Australia' (2017) 54 J. of Rural Studies 266; C. Parker, `The Food Label as
Governance Space: Free Range Eggs and the Fallacy of Consumer Choice' (2014)
35 Recht der Werkelijkheid 101.
14 See M. Miele and A. Evans, `When Foods Become Animals: Ruminations on Ethics
and Responsibility in Care-Full Practices of Consumption' (2010) 13 Ethics, Place
and Environment 171. See, also, S. Barr et al., `Citizens, Consumers and Sustain-
ability: (Re)Framing Environmental Practice in an Age of Climate Change' (2011)
21 Global Environmental Change 1224; L. Middlemiss, `Reframing Individual
Responsibility for Sustainable Consumption: Lessons from Environmental Justice
and Ecological Citizenship' (2010) 19 Environmental Values 147.
15 See T. Bartley et al., Looking Behind the Label: Global Industries and the
Conscientious Consumer (2015); B. Ilbery et al., `Product, Process and Place: An
Examination of Food Marketing and Labelling Schemes in Europe and North
America' (2005) 12 European Urban and Regional Studies 116.
ß2018 The Author. Journal of Law and Society ß2018 Cardiff University Law School
these label claims are also vulnerable to exploitation, misinterpretation, and
misleading or partial representations of reality.
Second, labelling can becom e a mechanism for exerting polit ical
influence over the market to change production practices by enabling civil
society organizations to advocate for consumers to `buycott' some goods and
boycott others (choose which goods to buy or not buy on the basis of
qualities of the goods). This goes beyond consuming with meaning (as in the
first conception above) to `shopping for change' ± advocating for alternative
mechanisms to govern industry practice such as different business-to-
business requirements (supermarket supply standards), and labelling and
certification standards (production and process standards).
16
2. Critical analysis of labelling as a governance space
In order to assess the degree to which labelling claims make a difference to
the governance of the food system, this article examines higher-welfare
labelling on meat-chicken products in Australia, and asks two critical
questions: do label claims accurately inform consumer choice? Does the
interaction of regulatory actors behind the label, the higher-welfare claims
on the label, and consumer choices prompt change in production practices
and their regulation and governance in relation to animal welfare?
(a) Do label claims accurately inform consumer choice?
The first question asks whether higher-welfare claims mislead consumers
and civil society thus negating the opportunity for influence. Survey evid-
ence (from 2007) suggests that `the majority of Australians see industrialised
and intensive farming practices as both unnatural and antithetical to animal
welfare.'
17
About two thirds of Australians claim to have bought `free range'
or `humane' meat or dairy products at some stage because of their concern
for animals.
18
Consumer research, however, suggests that citizen under-
standing and knowledge of meat production practices and welfare science in
particular is generally very weak.
19
Contemporary consumers are distant
from producers due to long supply chains, the market dominance of the
supermarket, and information asymmetry between consumers and pro-
345
16 Compare R.J. Roff, `Shopping for Change? Neoliberalizing Activism and the Limits
to Eating Non-GMO' (2007) 24 Agriculture and Human Values 511; D. Shaw and I.
Black, `Market Based Political Action: A Path to Sustainable Development?' (2010)
18 Sustainable Development 385.
17 P. Chen, Animal Welfare in Australia: Politics and Policy (2016) 73.
18 id., p. 59.
19 See I. Erian and C. Phillips, `Public Understanding of and Attitudes Towards Meat
Chicken Production and Relations to Consumption' (2017) 7 Animals 1; C. Hall and
V. Sandilands, `Public Attitudes to the Welfare of Broiler Chickens' (2007) 16
Animal Welfare 499.
ß2018 The Author. Journal of Law and Society ß2018 Cardiff University Law School
ducers.
20
Australian consumers have relatively little knowledge of the
conditions of chicken production,
21
and may lump together or confuse issues
of taste, naturalness (including use of additives and hormones), `organic',
small-scale, local, and family farming with higher-welfare and free-range
label terms.
22
In the case of meat, consumers also tend to shy away from
obtaining specific knowledge of where their food comes from, how the
animal is treated, and even thoughts about the food coming from an animal
at all.
23
Retailers present animal food to consumers in a way that facilitates
this distancing, for example, by avoiding showing representations of the
whole animal on the packaging, or showing only old fashioned bucolic
scenes with rustic barns or cartoon or silhouette style animals.
24
Consumers may be well-intentioned but lack clear and practical ideas of
what they want to see changed in intensive meat-chicken production, and
how much they are willing to give up (higher price, less meat) to do so.
Producers and retailers are therefore in a good position to manipulate and
take advantage of consumer desire for ethical products via `credence claims'
that most consumers are not in a position to understand or check for them-
selves. The contemporary supermarket-dominated food retail system also
encourages the idea that quality is consistent with affordable prices and high
availability. This is particularly evident in Australian and United Kingdom
supermarkets' adoption of ethical brand identities that include concern for
animal welfare while maintaining low prices ± thus selling the idea that both
are possible at the same time.
25
This heightens the possibility that higher animal welfare claims on food
product labels may mislead consumers. Misleading conduct can be quite
stark: products may be labelled one way, but actually fraudulently contain
substitutes produced a different way (for example, cage eggs labelled `free-
range').
26
In this article, however, we focus on a subtler type of misleading
346
20 J. Clapp, Food (2012) 1; C. Richards et al., `Supermarkets and Agro-Industrial
Foods' (2011) 14 Food, Culture and Society 29.
21 Erian and Phillips, op. cit., n. 19.
22 See H.J. Bray and R.A. Ankeny, `Happier Chickens Lay Tastier Eggs: Motivations
for Buying Free-Range Eggs in Australia' (2017) 30 Anthrozoo
Ès213; G.C. Harper
and A. Makatouni, `Consumer Perception of Organic Food Production and Farm
Animal Welfare' (2002) 104 Brit. Food J. 287.
23 Erian and Phillips, op. cit., n. 19; M. SchroÈder and M. McEachern, `Consumer Value
Conflicts Surrounding Ethical Food Purchase Decisions: A Focus on Animal
Welfare' (2004) 28 International J. of Consumer Studies 168.
24 Chen, op. cit., n. 17, pp. 112±14. See, also, S. O'Sullivan, Animals, Equality and
Democracy (2011) 64±70.
25 See J. Dixon, The Changing Chicken: Chooks, Cooks and Culinary Culture (2002)
113.
26 See J. Curll, `The Significance of Food Fraud in Australia' (2015) 43 Aus. Business
Law Rev. 270, at 280±1; Australian Competition and Consumer Commission v. CI &
Co Pty Ltd [2010] FCA 1511; Australian Competition and Consumer Commission v.
Bruhn [2012] FCA 959.
ß2018 The Author. Journal of Law and Society ß2018 Cardiff University Law School
labelling. Label claims can construct difference by trumpeting small or
cosmetic changes (for example, popholes out of barns to ranges that most
birds do not actually access
27
) or highlighting and renaming production
systems that are no different to the norm (for example, labelling intensive
barn production `free to roam').
28
These small changes can `encompass',
29
co-opt or create a `simulacrum' of alternative methods of animal production,
thus blurring the boundaries between different production practices (for
example, making intensive barn-based production appear more like smaller-
scale pasture-based production).
30
(b) Do label claims prompt change?
This leads to the second question: do label claims prompt change? Higher-
welfare claims may not only mislead individual consumers about how
differently individual products have been produced, but also give the
(misleading) impression that shopping choices can `civilise'
31
or regulate a
whole market.
32
Critical commentators have noted that issues like animal
welfare represent collective public interests in which government regulation
should set minimum standards. Labelling standards, however, merely create
a market niche for those with sufficient knowledge and resources.
33
This
critique underplays the dynamic, networked nature of contemporary regula-
tory capitalism. We suggest that it is possible, in principle at least, for ethical
labelling initiatives to help change production practices by changing the
network of governance actors ± but change how much and in what
circumstances?
Regulatory network analysis draws attention to the way the regulatory
governance of any particular area at any particular time is the result of
ongoing interactions (contests, conflicts, alliances, modelling, and mimicry)
by multiple actors (government, industry, and civil society) at multiple levels
(local, national, and global), each seeking to exercise power legitimately and
effectively.
34
Regulatory network analysis suggests that markets are con-
347
27 Australian Competition and Consumer Commission v. Pirovic Enterprises Pty Ltd
(No. 2) [2014] FCA 1028.
28 Australian Competition and Consumer Commission v. Turi Foods Pty Ltd (No. 2)
Pty Ltd (No. 4) [2013] FCA 665.
29 M. Fourcade and K. Healy, `Moral Views of Market Society' (2007) 33 Annual Rev.
of Sociology 285.
30 Richards et al., op. cit., n. 20, p. 32.
31 Callon, op. cit., n. 8.
32 See Miele and Evans, op. cit., n. 14. See, also, P. Fleming, The End of Corporate
Social Responsibility: Crisis and Critique (2012) 13.
33 Guthman, op. cit., n. 6.
34 See references at n. 12, above. See, also, B. Cashore et al., `The Impact of Private,
Industry and Transnational Civil Society Regulation and Their Interaction with
Official Regulation' in Explaining Compliance: Business Responses to Regulation,
eds. C. Parker and V.L. Nielsen (2011).
ß2018 The Author. Journal of Law and Society ß2018 Cardiff University Law School
stituted by a set of changing relations in which public and private standards
are continually being created, adjusted, and solidified.
Investigation of the value chain that connects food production and con-
sumption inevitably uncovers the importance of networks of public and
private regulation and governance in sustaining and challenging food
chains.
35
Morgan, Marsden, and Murdoch's seminal work on `worlds of
food', for example, shows that regulation ± formal legal-contractual arrange-
ments, logo accreditation schemes, legislative frameworks, and informal
conventions ± are all integral to stabilizing those chains and defining which
values, interests, and assumptions about how food production should be
organized prevail in different links in the chains.
36
Miele and Lever's study
of the `techno-ethics' of high-welfare meat-chicken production in the EU
argues that the emergence of ethically qualified products in the market
requires constant work by actors in the supply chain to construct and sustain
the market. This work includes convincing consumers to buy and trust
certain label claims, updating the producers' own skills and technology (for
example, barns designed appropriately to facilitate free ranging, managing
chicken health under different conditions), and ensuring investment in new
technologies and products (for example, retailers and brand-owners may
need to assist growers with the capital to buy new barns).
37
In order to
evaluate the impact of label claims, then, we must inquire into not only the
production practices behind certain label claims, but also whether they are
adequately supported by robust technological and management changes in
the supply chain, and ultimately the network of regulation that governs the
supply chain.
Food labels can be a particularly important governance space to the extent
that they provide not merely an opportunity for consumers to vote indivi-
dually with their shopping dollar but to help change public and policy
discourses, government regulation, and industry governance to transform
practice. Labelling does not automatically have this impact on networks of
governance behind the label. Certain players in the value chain will have
well-established economic and discursive power over the way things are
done. Supermarket supply contracts, for example, that require high avail-
ability and low cost will be very influential and hard to change. Moreover,
civil society activists, including animal welfare advocates, are not the only
`marginal' voices in the regulatory space competing for attention ± family
farmers, enviro nmental advocat es, and food safety a nd bio security
advocates all seek influence too. Yet the dynamic, networked nature of
governance provides opportunities for change, even if, as Miele and Lever
348
35 See, for example, J. Guthman, Agrarian Dreams: The Paradox of Organic Farming
in California (2004) 110±71.
36 K. Morgan et al., Worlds of Food: Place, Power and Provenance in the Food Chain
(2006).
37 Miele and Lever, op. cit., n. 4.
ß2018 The Author. Journal of Law and Society ß2018 Cardiff University Law School
suggest, the result is `more diffuse than specific'
38
± not wholesale changes
in supply chains but contesta tion, problematizing, a nd expansion of
stakeholders and discourses in governance systems. Bartley and co-authors
conclude from their study of the use of labelling in four different areas of
global trade (pulp and paper, electronics, apparel, and coffee) that `con-
scientious consumerism' (their term) `might be meaningful and progressive
if treated as part of a repertoire of political engagement',
39
particularly
where product labelling is used as an `entry point' for hard-headed
engagement with policy issues.
40
We suggest that it is in the very nature of
regulatory capitalism that a range of industry and civil society actors will
continually wish to contest market practices. In this context, label claims can
provide opportunities to expand the relevant voices and interests in the
governance of various industry practices.
41
It is for researchers to map how
they occur and for activists and entrepreneurs to find opportunities to make
their voices heard.
II. METHODOLOGY: BACKWARDS MAPPING HIGHER-WELFARE
LABELLING IN MEAT CHICKEN PRODUCTION IN AUSTRALIA
1. Growth in chicken-meat consumption and production
In Western countries, chicken-meat consumption has grown exponentially in
recent decades, with many consumers choosing chicken over beef and
lamb.
42
Australia is at the vanguard of this trend with a tenfold increase per
capita since 1962
43
and the third highest consumption per capita in the
world.
44
Two supermarkets (Coles and Woolworths) dominate (60 per cent)
the retail grocery market.
45
Both now treat chicken meat as a staple com-
349
38 id.
39 Bartley et al., op. cit., n. 15, p. 224.
40 id., p. 225.
41 See, also, id., pp. 69±70; M. Micheletti, Political Virtue and Shopping: Individuals,
Consumerism and Collective Action (2003).
42 See M.J. Zuidhof et al., `Growth, Efficiency, and Yield of Commercial Broilers
from 1957, 1978 and 2005' (2014) 93 Poultry Sci. 2970, at 2970.
43 4.4 kg per person per year in 1962; 47 kg in 2015±16: L. Wong et al., `Changing
Pattern of Meat Consumption in Australia' (2013), at .
Sch ool -of -Bu sin ess -an d-G ov ern anc e/_ doc ume nt/ Aus tra lia n-C on fer enc e-o f-
Economists/Changing -pattern-of-meat-c onsumption-in-Aust ralia.pdf>; Australia n
Bureau of Agricu ltural and Resou rce Economics an d Sciences (ABAR ES),
Agric ultu ral Co mmodi ties : Marc h Quart er 201 7 (2017 ) 116, a t p://
www.agriculture.gov.au/abares/Documents/agricultural-commodi ties-report-march-
2017.pdf>.
44 Behind Israel and the United States: OECD Data, `Meat consumption' (2017), at
45 Australian Competition and Consumer Commission (ACCC), Report of the ACCC
Inquiry into the Competitiveness of Retail Prices for Standard Groceries (2008).
ß2018 The Author. Journal of Law and Society ß2018 Cardiff University Law School
modity on a par with bread, milk, and eggs: prices are lower than all other
meats,
46
availability high, and competition strong.
47
Chicken also dominates
fast food offerings, where it is available cheap and often fried! In Australia,
two large vertically integrated producers and processors dominate supply,
controlling 75 per cent of the market.
48
The integrated chicken producers
either own or directly control each stage of production, from the breeding
and hatching of chicks, the milling and distribution of feed, provision of
veterinary services, and the slaughter, processing, packing, and often
marketing of the final product. The actual growing of the chickens is usually
however contracted out to growers. There are about 800 individual or family
growers around Australia who grow the chickens to slaughter weight.
Growers provide their own land and buy their own equipment (which must
meet the producers' specifications), but the producers provide the feed and
veterinary services and set the conditions under which the birds are housed,
fed, and managed. They also control the price at which the growers are paid.
These conditions of supermarket oligopoly and vertical integration of
chicken production are typical of all western countries where consistent
supply of inexpensive chicken meat has been achieved by innovation in the
management and housing of the chickens indoors (including artificial
lighting, water, and a suitable litter or ground substrate), improved nutrition
(via a formulated grain-based diet), and, crucially, the selective breeding of
the birds themselves to maximize the achievement of `commercially-
important targets, especially efficient feed conversion and rapid growth
rate'.
49
Between 1975 and 2005 meat-chicken growth rates increased by over
400 per cent, but the amount of feed required approximately halved,
50
`with
approximately 3kg of feed producing a 2kg meat chicken in 35 days [that is 5
weeks]'.
51
This means they are now a completely separate breed to layer
hens. The birds are generally housed in very large, closed-system industrial-
style sheds with thousands of other chickens.
52
This system was charac-
terized by animal activist Ruth Harrison as `factory farming' in which the
animal itself is in many ways treated as a component in a meat-making
machine.
53
Certainly, as the next subsection shows, this large-scale intense
350
46 ABARES, op. cit., n. 43.
47 Dixon, op. cit., n. 25, p. 113.
48 Baiada and Inghams. Several other large companies also operate: Hazeldenes,
Bartter, Turi Foods (La Ionica), Milne, Inglewood, and Milawa.
49 A. Robins and C.J.C. Phillips, `International Approaches to the Welfare of Meat
Chickens' (2011) 67 World's Poultry Sci. J. 351, at 352 (references omitted). See,
also, Zuidhof et al., op. cit., n. 42, p. 2971; H.A. Elson et al., `Poultry Welfare
Management: WPSA Working Group Nine' (2012) 68 World's Poultry Sci. J. 768,
at 773.
50 Zuidhof et al., id., pp. 2980±1 (cost of feed is about two thirds of cost of producing
chicken meat).
51 Robins and Phillips, op. cit., n. 49, p. 352 (references omitted).
52 id.
53 R. Harrison, Animal Machines: The New Factory Farming Industry (1964).
ß2018 The Author. Journal of Law and Society ß2018 Cardiff University Law School
production system inherently produces a range of poor outcomes for chicken
health, welfare, and opportunity to engage in natural behaviours.
2. Chicken health, welfare, and opportunity to engage in natural behaviours
David Fraser
54
has influentially suggested that different stakeholders tend to
focus on one or other of three different conceptions of animal welfare: (i)
basic health and functioning of animals, especially freedom from disease and
injury (`health'); (ii) `affective states' of animals, like pain, distress, and
pleasure; and (iii) the ability of animals to carry out natural behaviour and
have natural elements in their environment (`natural behaviours').
Defenders of animal welfare in large-scale intensive agricultural animal
production often focus on the first category and suggest that greater and
more efficient production is consistent with animal welfare since unhealthy
animals will not produce efficiently.
55
Critics of intense agriculture, how-
ever, argue that this `productivist' perspective favours an unduly narrow
conception of animal welfare that focuses on physical health as measured by
observable disease or injury, without sufficient recognition of the sentience
and therefore affective suffering of animals, and the impact on both health
and affective states of the denial of the opportunity to engage in natural
behaviour.
56
At any rate there is ample evidence that intense industrial farming of meat
chickens often leads to both significant basic health problems and affective
suffering.
57
Selective breeding of meat chickens leads to rapid growth rates
and a radically altered posture
58
which can predispose birds to both heart and
leg problems.
59
Leg problems can cause a lack of willingness and capacity to
walk, scratch, and perch.
60
Heart problems can cause pulmonary hyper-
351
54 D. Fraser, `Understanding Animal Welfare' (2008) 50(S1) Acta Veterinaria
Scandinavica 1.
55 See, for example, J.L. Barnett and P.H. Hemsworth, `Welfare Monitoring Schemes:
Using Research to Safeguard Welfare of Animals on the Farm' (2009) 12 J. of
Applied Animal Welfare Sci. 114.
56 See C.J.C. Phillips and J.C. Petherick, `The Ethics of a Co-Regulatory Model for
Farm Animal Welfare Research' (2015) 28 J. of Agricultural and Environmental
Ethics 127.
57 See Robins and Phillips, op. cit., n. 49. See, also, Anonymous, `Scientists' Assess-
ment of Housing and Management on Animal Welfare' (2001) 4 J. of Applied
Animal Welfare Sci. 3.
58 Zuidhof et al., op. cit., n. 42, p. 2975.
59 Anonymous, op. cit., n. 57, p. 42.
60 Robins and Phillips, op. cit., n. 49, pp. 355±6. See, also, G.S. Sanotra et al.,
`Influence of Stocking Density on Tonic Immobility, Lamenes s and Tibial
Dyschondroplasia in Broilers' (2001) 4 J. of Applied Animal Welfare Sci. 71, at
72; European Food Safety Authority (EFSA) Panel on Animal Health and Welfare,
`Scientific opinion on the influence of genetic parameters on the welfare and the
resistance to stress of commercial broilers' (2010) 8 EFSA J. 1.
ß2018 The Author. Journal of Law and Society ß2018 Cardiff University Law School
tension and sudden death. High stocking densities, large flock sizes, and
indoor confinement predispose birds to contact dermatitis (foot burn, hock
burn, and breast blisters) which can be very painful.
61
Although improve-
ments in health have been made through more sophisticated selections in
breeding,
62
there is debate in the literature as to what degree breeding, good
management (especially in relation to the litter), and technology can
ameliorate or prevent problems or whether the high stocking densities
required for large-scale commercial production will always have a negative
impact on health and affective states.
63
The very nature of the com-
modification process of intensive farming is to push the chicken's body as
far as it can go to produce as much meat as possible in the shortest time. The
unstated assumption is that the animal only has to survive at sufficient health
to reach slaughter weight. There is thus a constant tension between produc-
tivity and cost effectiveness, and the potential for a more healthy, happy life
for the chickens.
64
Moreover, it is not just the health and affective impacts of confinement in
large-scale shed systems that is at issue. It is also the opportunity to engage
in natural behaviours. Chickens are highly sentient creatures with complex
social hierarchies. They are capable of learning and also gain great enjoy-
ment from behaviours such as pecking and ground scratching, as well as
perching, dust bathing, and nesting.
65
Confinement at high stocking densities
inside barns and in large flock sizes frustrates natural behaviours and social
organization, leading to frustration and stress driven behaviour.
66
Lower
stocking density and group size within both barn systems and barn plus range
systems may provide more opportunity for natural behaviours and less stress.
Enrichment opportunities (such as perches and straw bales inside the house
or a well-managed and vegetated outside range with trees or other structures)
will also provide opportunities for natural behaviours such as perching,
352
61 Zuidhof et al., op. cit., n. 42; H.A. Elson, `Poultry Welfare in Intensive and
Extensive Production Systems' (2015) 71 World's Poultry Sci. J. 449, at 451. But
note that Elson's review goes on to suggest that contact dermatitis is found in greater
prevalence and severity among free-range chickens than confined chickens: p. 452.
See, also, P.J. Hepworth et al., `Hock Burn: An Indicator of Broiler Flock Health'
(2011) 168 Veterinary Record 303.
62 See Elson et al., op. cit., n. 49, p. 773; Zuidhof et al., op. cit., n. 42, p. 2970.
63 See S. Buijs et al., `Stocking Density Effects on Broiler Welfare: Identifying
Sensitive Ranges for Different Indicators' (2009) 88 Poultry Sci. 1536. Compare
M.S. Dawkins et al., `Chicken Welfare Is Influenced More by Housing Conditions
Than by Stocking Density' (2004) 427 Nature 342. See, also, Robins and Phillips,
op. cit., n. 49, p. 360.
64 A. Butterworth, `Cheap as Chicken' in The Meat Crisis: Developing More
Sustainable Production and Consumption, eds. J. D'Silva and J. Webster (2010).
65 See PoultryHub, `Enriching the Range to Reduce Feather Pecking', at
www.poultryhub.org/enriching-the-range-to-reduce-feather-pecking/>. See, also, A.
Potts, Chicken (2012) 31±52.
66 PoultryHub, id.
ß2018 The Author. Journal of Law and Society ß2018 Cardiff University Law School
scratching, foraging, and dust bathing. These activities can also decrease
anxiety, boredom, and frustration, and increase leg health.
67
Some however argue that range access may lower welfare due to stress on
open and bare ranges, since chickens prefer cover when outside and are
fearful of predators, humans, and sudden changes.
68
Chicken-meat industry
advocates also suggest that free ranging can introduce health risks from
contact with wild birds and soil borne pathogens.
69
Two broad issues have become the topics of contention in public policy
debate around meat chicken welfare: how chickens' health can best be
managed and suffering reduced within intensive large-scale systems; and
whether and how chickens should be given opportunities to engage in natural
behaviours via outside ranges attached to barns or outdoors based production
systems.
As discussed in part III, the two main higher-welfare label claims in
Australia (RSPCA Approved and FREPA free range) address respectively
the first and second issue above.
3. Backwards mapping the food label as governance space: methodology
and data
Parker has previously suggested the need for a methodology to `backwards
map' the claims staked on food labels in order to broaden the governance
gaze beyond the often narrow limits of consumer choice to the production
and distribution practices behind the label.
70
This methodology starts with
what the consumer sees in the market ± food labelling and marketing claims
± and then traces back the networks of public and private governance efforts
throughout the supply chain that create and support the claims on the label,
and, finally, the underlying production practices themselves.
The first step is a `visual sociology'
71
of the label in its retail context with
particular attention to claims made explicitly (written or spoken) and implicitly
(pictures, signs, symbols, context) about the ethical values instantiated in the
product and visual appeals to regulatory support (for example, credence claim
accreditation logos). We examined the higher welfare claims that have
emerged in the Australian market place through a product survey of whole
roast chickens and fresh chicken meat (breasts, thigh fillets, and whole
uncooked chicken) available for retail sale in a selection of 27 supermarkets
353
67 See Robins and Phillips, op. cit., n. 49, p. 361.
68 Anonymous, op. cit., n. 57, p. 38.
69 See, for example, `Barnaby Joyce correct on bird flu risk in free-range chicken
farms' ABC Fact Check, 8 November 2013, at
factcheck/2013-11-01/barnaby-joyce-bird-flu-free-range-chicken-farms/5043614>.
70 Parker, op. cit., n. 13. Compare R.F. Elmore, `Backward Mapping: Implementation
Research and Policy Decisions' (1979) 94 Political Sci. Q. 601.
71 Richards et al., op. cit., n. 20, pp. 38±9.
ß2018 The Author. Journal of Law and Society ß2018 Cardiff University Law School
(Coles, Woolworths, IGA, and Aldi stores) and alternative retail outlets
(smaller independent stores and farmers' markets) in a variety of location
around Melbourne between April and December 2015. Photos were taken of
each product and its shelf display and a variety of data collected, including the
price per 100g, claims made, accreditations, and the origin of processed
products (where data were available). Supermarkets are the largest conduit for
consumption of chicken in Australia with about 70 per cent of all chicken meat
sold fres h for home co oking and t he vast maj ority of tha t sold in
supermarkets.
72
The second step is to investigate each appeal to values and regulation on
the label using critical supply-chain analysis
73
and regulatory network
analysis.
74
We therefore compared the various animal welfare claims iden-
tified on these products with information about the accreditation schemes
and production practices behind them through desktop review of accredita-
tion organizations' and producers' websites, and interviews with representa-
tives of the organizations responsible for accreditation systems, the two
major retailers, producers and farmers, and animal welfare and consumer
NGOs. A total of 17 interviews with stakeholders were conducted with each
interview lasting around one hour and, with informed consent, audio-taped
(notes were taken where permission to audio-tape was not given). The aim
here was t o uncover t he vario us formal a nd infor mal gove rnance
arrangements that support and stabilize relationships along the food chain
and the representations made to the consumer, and how this chain (and its
regulatory governance) has been contested and alternatives developed.
The third step in backwards mapping is to uncover how consumer choice
has been constructed, and to inquire into the values and interests represented
by the label as a governance space. This is done by comparing the stories on
the labels with the food chains behind the labels, relevant networks of
governance arrangements and the degree of conflict, change and stability in
these chains and arrangements. Who bears the burdens and who the benefits
of the various food chains and regulatory arrangements uncovered? What
values and interest are represented by the regulatory options chosen? What
regulatory options and associated values and interests have been sidelined or
occluded? How have regulatory choices already made along the food chain
created and constricted the possibilities that consumers have of choosing
products in a way that changes the moral economy of the value chain? In this
case study, the researchers prepared their own analysis and then a multi-
stakeholder workshop was held to help understand issues. This under-
standing was also supplemented by a comprehensive analysis of newspaper
articles and policy documents related to poultry-chicken welfare regulation,
354
72 Australian Chicken Meat Federation (ACMF), The Australian Chicken Meat
Industry: An Industry in Profile (2011) 3.
73 Dixon, op. cit., n. 25; Guthman, op. cit., n. 35.
74 See Eberlein et al., op. cit., n. 12.
ß2018 The Author. Journal of Law and Society ß2018 Cardiff University Law School
civil society campaigns, and market initiatives over the last 25 years in order
to ensure the broader trends were captured. The results of this latter data
collection have been reported in more depth elsewhere.
75
The desktop review and interviews were coded and analysed using a
grounded theorizing approach (in which themes are developed from a close
reading of the data rather than hypotheses tested on the data) in order to
understand why and how different accreditation systems were introduced
and how the various actors in the regulatory network interacted with each
other. As some of the interviews and the multi-stakeholder workshop were
undertaken `off the record' in order to secure participation in discussion of
controversial issues, publicly available sources, rather than direct interview
quotations, are used wherever possible in this article.
III. EVALUATING HIGHER-WELFARE LABELLING
1. The emergence of higher-welfare labelled chicken in Australia
Our review of policy documents and newspaper articles shows that since
about 2000, concern about the overcrowding of meat chickens inside large
barns has been a topic of frequent public discussion, civil society contesta-
tion, and industry action in Australia.
76
The absence of government
commitment to enacting and enforcing higher standards of animal welfare
to address these issues has prompted industry and retailer innovation in
higher animal welfare labelling to address public concern and civil society
contestation. Figure 1 summarizes key policy and market developments over
that time frame. The top half of the diagram shows official government
policy decisions and regulatory actions. The bottom half shows the develop-
ment of private labelling initiatives and civil society activism. These are an
interacting set of provocations and alliances ± which have created and
shaped the label claims we now see in the market within the broader context
of the relentless rise in chicken-meat production and consumption described
above.
The primary government regulatory instrument affecting broiler chicken
welfare in Australia is the Commonwealth Model Code of Practice:
Domestic Poultry (`the Poultry Code').
77
It is widely seen as inadequate
by animal advocacy groups because it allows high stocking densities and
355
75 Not reported in detail in this article. See C. Parker et al., `The Consumer Labelling
Turn in Farmed Animal Welfare Politics: From the Margins of Animal Advocacy to
Mainstream Supermarket Shelves' in Alternative Food Politics: From the Margins
to the Mainstream, eds. M. Phillipov and K. Kirkwood (2018).
76 id.
77 Primary Industries Standing Committee, Australian Model Code of Practice for the
welfare of animals ± domestic poultry ± 4th Edition ± SCARM Report 83 (2002).
ß2018 The Author. Journal of Law and Society ß2018 Cardiff University Law School
does not restrict flock size nor mandate outdoor access or any enrichment
opportunities in or outside the shed, thus failing to address consumer and
animal advocate concerns with chickens' affective suffering and opportuni-
ties to engage in natural behaviours.
78
Moreover the monitoring and
enforcement of compliance with the Poultry Code has been widely criticized
as lacking and ineffective by animal advocates, regulatory scholars, and,
recently, an independent government review of agricultural regulation, for
two reasons. First, as it is the responsibility of state and territory departments
of primary industries which lack independence from industry, it is criticized
for being subject to regulatory capture. Second, both federal and states
governments have not provided adequate resourcing for regular monitoring
and enforcement.
79
Farm animal advocacy group Voiceless published the first comprehen-
sive, policy-oriented expose of Australian meat chicken welfare and its
regulation in 2008.
80
It criticized Australian governments for failing to
follow the lead of the 2007 EU directive on meat-chicken welfare that set a
new international benchmark for chicken welfare standards.
81
It also chal-
lenged Australian supermarkets and consumers to follow the example of the
United Kingdom in radically increasing the consumption of higher-welfare
labelled chicken meat.
356
Figure 1. Key developments in meat-chicken welfare and labelling
governance 2002±2016
78 See J. Goodfellow, `Regulatory Capture and the Welfare of Farm Animals in
Australia' in Animal Law and Welfare ± International Perspectives, eds. D. Cao and
S. White (2016); K. Sharman, `Farm Animals and Welfare Law: An Unhappy
Union' in Animal Law in Australasia: A New Dialogue, eds. P. Sankoff and S. White
(2009).
79 Goodfellow, id.; Productivity Commission, Regulation of Australian Agriculture
(2016).
80 K. Sharman and S. Kossew, From Nest to Nugget: An Expose
Âof Australia's Chicken
Factories (2008).
81 Council Directive 2007/43/EC laying down minimum rules for the protection of
chickens kept for meat production [2007] OJ L182/19.
ß2018 The Author. Journal of Law and Society ß2018 Cardiff University Law School
`Organic' and `free-range' labelled chicken meat had been available in
Australia from at least the mid-1990s.
82
In 2011, however, the two dominant
Australian supermarkets made the creation and advertising of higher-welfare
labelled products a prominent part of their brand identity.
83
Massive media
coverage about cruel treatment of Australian cattle and sheep exported live
on board ships to Asia and the Middle East had prompted wide public
concern about Australian agricultural animal welfare standards in 2011.
84
A
slow and weak government response to the scandal
85
created the opportunity
for the two dominant supermarkets to step into the governance gap and give
themselves a `halo effect' through their own action on animal welfare
standards. The threatening arrival in Australia of European and American
own-brand supermarkets Aldi, Lidl, and Costco had also made it urgent for
the Australian incumbents to find new marketing strategies to defend their
customer base.
86
At the same time, repeated campaigns by consumer advocates, animal
advocates, and the Greens (Australia's third political party) to introduce
legislated higher-welfare labelling reforms were failing.
87
A 2011 govern-
ment review found that higher-welfare labelling was a `consumer values'
issue that did not warrant mandatory food-labelling standards. Instead,
industry self-regulation, with back-up consumer protection enforcement
against misleading conduct, should be sufficient.
88
In Europe, by contrast,
higher welfare terms for chicken meat are legislatively defined.
89
357
82 See, for example, N. Blavier, `Chicken Feed' Sydney Morning Herald, 12 April
1994.
83 Coles, `News: RSPCA Approved to hit shelves in Victoria, South Australia and
Tasmania for the first time' (April 2011) (archived with first author); Woolworths
Limi ted, C orpor ate Re spon sibi lity R epor t 2013 (2 013) 2 3, at ttps ://
www.woolworthsgroup.com.au/icms _docs/186061_corporate-responsibi lity-report-
2013.pdf>. See, also, C. Parker and G. Scrinis, `Out of the Cage and into the Barn:
Supermarket Power, Food System Governance and the Regulation of Free Range
Eggs' (2014) 23 Griffith Law Rev. 318; T. Lewis and A. Huber, `A Revolution in an
Eggcup? Supermarket Wars, Celebrity Chefs and Ethical Consumption' (2015) 18
Food, Culture & Society 289.
84 See C.M. Tiplady et al., `Public Response to Media Coverage of Animal Cruelty'
(2013) 26 J. of Agricultural and Environmental Ethics 869.
85 See Chen, op. cit., n. 17, pp. 91±5.
86 See G. Mortimer, `Woolies private label strategy will play directly into the hands of
Aldi' The Conversation, 30 March 2016, at
private-label-strategy-will-play-directly-into-the-hands-of-aldi-56914>.
87 For example, the Greens' Truth in Labelling (Free-range Eggs) Bill 2011 (NSW)
lapsed in 2013.
88 Independent Expert Panel for the Review of Food Labelling Law and Policy,
Labelling Logic: Review of Food Labelling Law and Pol icy (2011) 7, 12
(Recommendations 2, 37, 38).
89 Commission Regulation (EC) No. 543/2008 laying down detailed rules for the
application of Council Regulation (EC) No. 1234/2007 as regards the marketing
standards of poultry meat [2008] OJ L157/46.
ß2018 The Author. Journal of Law and Society ß2018 Cardiff University Law School
Also in 2011 Australia's powerful national consumer protection regulator,
the Australian Competition and Consumer Commission (ACCC) com-
menced enforcement action for misleading conduct against the industry
body, the Australian Meat Chicken Federation (ACMF), and three major
chicken-meat producers for claiming that meat chickens grown conven-
tionally in cramped conditions inside barns with no outdoors access were
`free to roam'. The consumer action was prompted by a complaint and
lobbying from the Barristers Animal Welfare Panel working with Animals
Australia (one of Australia's most prominent animal advocacy organiza-
tions). The action garnered much media attention,
90
and by 2013 the ACCC
had succeeded against all parties in court.
91
Simultaneously, public concern
about the definition of `free-range' eggs erupted on the grounds that
supposedly `free-range' birds were not kept in a system where most hens
went outside on most days but were largely confined in crowded conditions
in barns and given only theoretical access to outdoor ranges. This too
attracted successful ACCC action.
92
In 2012, the chicken-meat industry
withdrew a proposal it had made to introduce an industry accredited `free
range' certification standard.
93
This left the governance space free for the
supermarkets to determine their own higher welfare standards.
By 2014, Coles and Woolworth s had both implemented `RSPCA
Approved' certification labelling for all own-brand chicken meat sold in
store, representing the vast majority (63 per cent) of fresh chicken meat now
sold.
94
Coles and Woolworths also now offer FREPA (Free Range Egg and
Poultry Australia) accredited `free-range' and ACO (Australian Certified
Organic) accredited chicken as premium branded products, representing
about 20 per cent of the market.
95
Table 1 summarizes the situation.
358
90 See ACCC, `ACCC Takes Action Over ``Free to Roam'' Chicken Claims' (7
September 2011), at c.gov.au/media-release/accc-tak es-action-
over-free-to-roam-chicken-claims>.
91 Australian Competition and Consumer Commission v. Turi Foods Pty Ltd (No. 2)
Pty Ltd (No. 4) [2013] FCA 665.
92 C. Parker and J. de Costa, `Misleading the Ethical Consumer: The Regulation of
Free-Range Egg Labelling' (2016) 39 Melbourne University Law Rev. 895, at 910±
12.
93
ACCC, `Australian Poultry Industry Assoc. CTM 2012', at ps:/ /rsp ca.o rg.a u/si tes/ defa ult/ file s/20 16-1 0-RS PCA- AFS- Impa ct-R epor t-
about-us/consultatio ns-submissions/public- consultations/austral ian-poultry-industry-
assoc-ctm-2012>.
94 RSPCA, RSPCA Approved Farming Scheme: Impact Report 2016 (2016), at
web.pdf>.
95 ACMF, op. cit., n. 72.
ß2018 The Author. Journal of Law and Society ß2018 Cardiff University Law School
Table 2 summarizes the meaning of the two most significant higher-
welfare label certifications ± RSPCA Approved and FREPA Free-range ±
and compares them with the Model Code of Practice (that is, the regulatory
standard), the niche Australian Certified Organic, and the EU legally
mandated definition of `free-range' (for comparison). The following sections
evaluate the impact of these two standards.
2. Evaluation of RSPCA Approved
(a) Does RSPCA Approved accurately inform consumers?
The RSPCA describes RSPCA Approved as aimed at `establishing animal
welfare standards that go beyond regulatory requirements and that are
commercially viable', `enabling differentiation and marketing of products',
and `offering consumers . . . a higher welfare alternative'.
96
It accepts that
large-scale, intense, animal farming will continue and seeks to ameliorate the
welfare of the animals involved. This is in contrast to the position of
Australia's two most prominent animal advocacy groups, Voiceless and
Animals Australia, which both actively seek to abolish factory farming and
promote alternative free-range farming, reduced animal food consumption,
and veganism.
97
RSPCA Approved is advertised as `better welfare' and
359
Table 1. Summary of impact of major higher-welfare labels on market
for fresh chicken meat and production practices
Logo Market Share Production System
RSPCA Approved Dominant at both
major supermarkets
± about 60%
Conventional intense
industrial barn-based
production system with minor
improvements for health and
affective states of chickens.
FREPA Free-range Premium product ±
about 15%
Conventional intense
industrial barn-based
production system with
outdoor access.
ACO Certified
Organic
Premium product ±
about 5%
Certifies both conventional
systems with outdoor access
and alternative systems ±
standards require range
management to encourage
actual ranging.
96 RSPCA, Approved Farming Scheme: Impact Report 2014 (2014) 5.
97 The RSPCA has sometimes been criticized for this approach by other animal
advocacy groups: Chen, op. cit., n. 17, p. 183.
ß2018 The Author. Journal of Law and Society ß2018 Cardiff University Law School
360
Table 2. Comparison of Model Code requirements with major private higher-welfare accreditations (at January 2017)
Government RSPCA Approved FREPA Free-range Australian EU definition
Regulation Certified of `free-range'
(Model Code) Organic
Accreditation body NA Highly respected Free-range farmers Organic producers NA
animal welfare industry body industry body
agency
Indoor stocking density 20 17 14 12 13
Birds per square metre*
Access to outdoor area Not required Not required Required Required Required
(majority of (continuous daytime
daylight hours) access to open-air
runs)
Outdoor stocking Not specified Approx. 113,000 Not specified 2500 10,000
density (Outdoor area must (4800 if rotated)
Birds per hectare be 1.5 shed area)
Outdoor shade/range Ready access to > 8m
2
shade Not specified Range to be managed Range mainly
shaded areas per 1000 birds to encourage covered by
birds outdoors vegetation or
other shade
Age at slaughter Minimum 35 days 35±55 days 35±55 days Minimum 70 days Not specified
Monitoring and Unknown ± 2±4 times per year 1 time per year 1 announced audit per year Varies by country
auditing visits infrequent plus unannounced audits
Enforcement Little enforcement Compliance is enforced Brand owners enforce Brand owners enforce Varies by country ±
± court prosecutions by supermarket supply via contracts with via contracts with labelling definition
only in cases of contract conditions. growers or run own growers or run own only
extreme cruelty Growers who do not facilities. facilities.
comply may lose their Brand owners or Brand owners or
contracts with the growers might lose growers might lose
producers who supply accreditation if accreditation if
to the supermarkets. not compliant. not compliant.
* Calculated on basis of 2 kg per bird slaughter weight for consistency since some standards specify kg and some number of birds.
ß2018 The Author. Journal of Law and Society ß2018 Cardiff University Law School
`raised better, tastes better' by Coles
98
and by the RSPCA as `providing a
better life for farm animals'.
99
The RSPCA Approved governance system does generally provide higher
welfare within the intense industrial system than does government regulation
and conventional industry practice. But it is an incremental rather than a
transformative improvement. It does not substantially alter the model of
intense industrial farming but, rather, makes minor but important improve-
ments on the Model Code requirements (see Table 2). For example, RSPCA
Approved has strict requirements about keeping litter dry, requires some
minimal but important enrichment opportunities inside barns (perches and
hay bales), and also requires lower stocking densities than the Model Code
(allowing more space for the birds). It does not require outdoor access and
the RSPCA does not see `free-range' as a guarantee of good welfare.
Growers have had to adopt some new management practices (lower
stocking densities, greater attention to litter management) but they have not
had to adopt new technology (for example, the barns are the same, as are the
litter, the tractors, and the breeding of the birds) nor make more permanent
changes to their `techno-ethics'.
100
Similarly the `margin for care' has not
increased. That is, RSPCA Approved products do not appear to have a higher
economic margin than conventional products.
101
Nor do they seem to
conceptually reframe production to prioritize care of animals over efficiency
of production. Coles's advertising of its RSPCA Approved chicken as better
welfare `at no extra cost to you' highlights this point, and there is very little
or no difference in price between RSPCA Approved and non-RSPCA
Approved conventional chicken meat. Interviews and newspaper article
analysis suggest the main potential cost impact is the lower stocking density
(meaning more sheds required for the same number of chickens).
102
No images or pictures suggested the animals were outside. The Coles
advertising shows a barn in the sunset and Woolworths images are sug-
gestive of a wooden barn. Nor does any advertising claim a substantially
different method of farming is used ± only a more humane version of
conventional farming.
Under RSPCA Approved certification, monitoring of farms is more
proactive than government regulation, meaning that the standards are more
likely to be implemented in practice (see Table 2). The process by which the
RSPCA Approved requirements are created also represents some improve-
361
98 Photographs of instore advertising and labels are on file with the authors and
available at unimelb.edu.au/research/ projects/regulating-foo d-labels-
the-case-of-free-range-food-products-in-australia/about>.
99 RSPCA, op. cit., n. 96.
100 Miele and Evans, op. cit., n. 14.
101 Butterworth, op. cit., n. 64, pp. 137±8.
102 L. Poole, `Chicken meat meets RSPCA approval' ABC Rural, 9 May 2011, at
ß2018 The Author. Journal of Law and Society ß2018 Cardiff University Law School
ment on the more industry-dominated government standards-making process.
They are based on independent (non-industry-funded) animal welfare science
and animal welfare advocacy as well as consultation with industry and
supermarkets. They are reviewed regularly and therefore provide an oppor-
tunity for continuous improvement. The adoption of RSPCA Approved by the
supermar kets in effe ct ensures th at basic gov ernment st andards ar e
monitored, enforced, and incrementally improved for those chickens, whereas
current government regulation is poorly monitored and enforced.
The RSPCA provides much information about what its standards do and
do not mean, and the label claims themselves do not make inaccurate
statements. Nevertheless, the `RSPCA Approved' stamp may give the
impression that an absolute standard of humane care of animals has been
achieved (that is, chickens have been treated humanely) rather than a relative
standard ( that is, chi ckens have b een treate d more human ely than
government regulation requires). As one animal advocate put it:
RSPCA do provide a few bales of hay and whatever. But that's, well, better
than nothing. I don't think it really changes things very greatly. It might give
some of them something to do on occasions . . . I do understand that that's
pulled back on the most extreme densities and such things in the industry. But
I think I see it as a missed opportunity to actually move them to a really much
better standard.
103
(our italics)
(b) Does RSPCA Approved change practice and governance?
The dominance of RSPCA Approved in the current retail market for chicken
meat is dependent on an alliance between the supermarkets (who have
adopted it as the baseline animal welfare standard for own-brand chicken),
the RSPCA (Australia's most highly respected civil society organization and
a fairly mainstream animal welfare organization
104
), and chicken producers
(notably mid-tier producer, Hazeldenes, who worked with Coles in the first
instance to trial and adopt the RSPCA Approved standard, with the two
largest producers coming on board soon after). This has impacted on a large
swathe of the market in a small way: official figures suggest that by far the
most (63 per cent) fresh chicken meat sold is now RSPCA Approved.
Indeed, producer interviewees told us that some of the major producers are
now finding it easier to make all chicken production RSPCA Approved
rather than operate different systems with different growers for different
retailers and fast-food companies. Moreover (as suggested above), RSPCA
Approved is better monitored and enforced (through regular auditing visits
and the threat of loss of contracts) than the more minimal government
standards. This suggests that most chickens grown for meat in Australia have
benefited from RSPCA Approved in a small way.
362
103 Anonymous interviewee O7, Melbourne, Australia, 23 October 2015.
104 Chen, op. cit., n. 17, p. 167.
ß2018 The Author. Journal of Law and Society ß2018 Cardiff University Law School
The market has thus accommodated itself to increased demands for
animal welfare via a combination of incremental improvement and the two
supermarkets' co-option of the `halo effect' from an animal welfare
organization. Chen's systematic study of animal welfare politics and policy
in Australia suggests that the relationship between RSPCA Approved and the
supermarkets represents `an exchange that creates a degree of mutual
capture'.
105
This mutual exchange is however a `fragile construction'.
106
It
is vulnerable to marketing and brand identity changes on the supermarket
side. As one chicken industry interviewee commented, RSPCA Approved
has the makings of becoming a non-negotiable industry standard but it is not
there yet:
I'd like to see people stop competing on animal welfare; just as they have
pretty much agreed not to have food safety be a competitive issue. So they
don't say my product is safer than your product. I would like them to move
away from animal welfare as a marketing differentiating point, so there's
higher welfare and higher higher welfare and there's highest welfare and you
know there's no end to it. So I think maybe the RSPCA becoming very well
known, widely accepted . .. I think that that's good for us all if we would just
all do RSPCA and then move on with something else, you know differentiate
your flavour and quality and whatever else . . .
The RSPCA at first sight appears to be the dominant regulatory actor
`orchestrating' a market change through forging an alliance with the
supermarkets. However, it is the RSPCA who needs the supermarkets to get
access to and traction over producers, more than the supermarkets need the
RSPCA `halo'. This is most evident by the fact that, to date, Australian
supermarkets do not require RSPCA certification for the other higher-
welfare animal products they sell (free-range eggs and sow-stall-free pork
products). The alliance between the RSPCA and the supermarkets is there-
fore vulnerable if the supermarkets decide that priority for animal welfare or
an alliance with the RSPCA no longer fits their branding strategies, or if
producers and supermarkets decide the cost of compliance does not warrant
the competitive advantage achieved. As another industry interviewee pointed
out, this appears to have occurred in the United Kingdom with the decline of
RSPCA Freedom Foods:
I believe [RSPCA Freedom Foods in the United Kingdom] got to within about
80 per cent of the total production. Everybody was achieving the standard.
Now it's completely declined and people [producers] have moved away from
it, because it gets to the point where people just look at it and go, this is costing
me far too much money to achieve this; it's not cost-effective and not
productive, so we can't sustain it.
RSPCA Approved is also vulnerable to the possibility consumers will come
to see RSPCA Approved as delivering less substantive change than it
363
105 id., p. 200.
106 Miele and Lever, op. cit., n. 4, p. 70.
ß2018 The Author. Journal of Law and Society ß2018 Cardiff University Law School
promises. Other animal welfare advocates may indeed contest RSPCA
Approved as being of not a high enough standard or even `welfare washing'.
At the time of writing, an animal advocacy group had orchestrated just such
a campaign against an RSPCA Approved meat-chicken farm in Western
Australia.
3. FREPA free-range
A European meta-analysis of consumer preference studies indicates that
`outdoor access' is always a high preference among consumers seeking
higher-welfare animal food products.
107
`Free-range' label claims particu-
larly appeal to the idea that birds should have the opportunity to engage in
natural behaviours by going outside. Some boutique or micro free-range
farms emphasize small flock sizes and agro-ecological farming methods that
give chickens ample opportunity to forage, peck, scratch, and dust bathe.
This article focuses however on the dominant free-range label claim, FREPA
free-range accredited.
(a) Does FREPA free-range accurately inform consumers?
In addition to the use of the term `free-range', the labelling images on the
FREPA free-range accredited meat chicken in Coles and Woolworths
emphasize the outdoors with green hills and pasture, although often lacking
actual chickens in the landscape. Most `free-range' chicken meat available
on the market has not come from birds that spent their days foraging,
pecking, and dust bathing in pastured fields. Indeed, the very characteristics
of intense industrial meat-chicken production discourage ranging in a variety
of ways, even if access to a range is provided and FREPA free-range does
not create a different system.
The publicly available FREPA standard is very minimal with only a few
broad guidelines and little specification of issues such as indoor stocking
density and amount of popholes per shed (see Table 2). A FREPA spokes-
person told us that there is more detail in the commercial-in-confidence audit
guidelines that support the standard, but we were not able to see these. It is
clear that FREPA is geared towards a large-scale barn-based system that
provide chickens with access to a range rather than an outdoor free-range
system. The dominant free-range brand, Lilydale, stocked in Coles, is
FREPA accredited but adds to the FREPA Accreditation on the labelling
with the much more prominent `Lilydale promise' that includes additional
bullet-point information about the living conditions of the chickens: `Access
to outdoors; perching bales; huts for shade; nutritious feed.' It also includes
364
107 M. Janssen et al., `Labels for Animal Husbandry Systems Meet Consumer
Preferences: Results From a Meta-Analysis of Consumer Studies' (2016) 29 J. of
Agricultural and Environmental Ethics 1071.
ß2018 The Author. Journal of Law and Society ß2018 Cardiff University Law School
this statement emphasizing that it exceeds the free-range certification
standard:
Lilydale chickens, once fully feathered, are free to access the outdoor range
area from sunrise to sunset. With bales and wooden ramps for perching, shade
huts to protect them from the sun and tree planting programs in every pasture,
at Lilydale we don't just meet free range standards, we better them.
The key feature of accredited `free-range' chicken in Australia is the
access of chickens to the range from the age of 21 days (three weeks)
onwards, but this represents only about half of their short lives. Once they do
gain access to the range, as a number of both industry and animal advocate
interviewees put it, the birds are free to range rather than that every bird is
actually free ranging every day:
`Free range' or `free to range'? That's where it gets cloudy. If the consumer is
thinking that if they buy a free-range chicken that that chicken was outside on
the range, then there's no guarantees that that particular chicken went outside
on the range. But what is important is that that chicken has got access to get
onto the range if it chooses to do so.
(Free-range industry spokesperson)
To me if the birds are provided with access is that what people expect? Or do
they expect that the bird that they eat has been outside, has actually gone
outside? Do they expect that the birds have spent a significant amount of time
outside? I don't really know. I can't answer that . .. I mean you don't want to
be forcing birds to go outside if they don't want to go outside.
(Industry spokesperson)
Even at slaughter, meat chickens are still little more than overgrown chicks
and may not be fully feathered and behaviourally ready to range.
108
Moreover, by the time they are ready to range, they may be too large and not
accustomed enough to exercise to be capable of, and motivated to, range.
109
Industry interviewees reported that actual ranging behaviour depends on
access to popholes, scale and size of sheds and flocks, the weather, and
whether there is any enrichment, shade, and other features of the range to
entice them outside, as well as the breeding of the bird. In relation to the
latter, one micro free-range farmer reported that he had tried to stock a free-
range farm with conventionally bred chickens and found they simply would
not range:
What we found in the trees here is that all they would do is sit beside their feed
bin, they wouldn't forage, largely because they couldn't. They were so heavy
and overburdened with muscle and breast tissue, wouldn't forage and just very
lethargic.
This free-range farmer had some difficulty sourcing a different breed of
chicken that would be capable of ranging. As interviews with industry
365
108 Anonymous, op. cit., n. 57, p. 37.
109 id., p. 41.
ß2018 The Author. Journal of Law and Society ß2018 Cardiff University Law School
representatives made clear, the very idea of free ranging conflicts with the
ethos and technologies of intense industrial farming because it lessens the
grower's control of the system, of the activity of the birds, their growth, and
even their mortality ± thus impacting on profits. Contemporary tunnel-
ventilated shed systems that allow the grower to control the temperature and
atmosphere (in order to address health and suffering associated with cold or
heat and encouraging rapid growth) are designed to be kept shut. When the
sides are opened up for free ranging in hot, cold, or damp weather, they do
not work as designed, creating a disincentive for the farmers to encourage
free ranging. Indoor factory farming was introduced in order to control the
environment precisely in the interests of the health and productivity of the
chicken. A number of interviewees pointed out that free ranging makes this
more difficult and increases the mortality rate. The added exercise also
impacts on economic productivity ± free-range chickens eat more feed and
reach slaughter weight later.
(b) Does FREPA free-range change practice and governance?
FREPA free-range only represents 15 per cent of the market and as such does
not represent a systemic change in quantitative terms. Our interviews
suggested that the common industry view is that free-range is a luxury that
people will buy if they have the money to do so, a higher price choice for
those consumers who consider welfare and taste important, rather than a
message to producers and regulators to improve standards across the board.
It is a market niche ± a way to gain a higher price for a differently marketed
product
110
± and not currently a serious challenge to prevailing industry
practice.
The dominance of RSPCA Approved means that free-range meat chicken
is not under serious scrutiny by consumer groups and is therefore less likely
to be challenged through consumer protection enforcement or civil society
activism. Indeed, the minimal incremental systemic change wrought by
RSPCA Approved may pre-empt potential for further innovation in free-
range. One industry interviewee suggested that there was an indication that
consumers are `now accepting RSPCA and not choosing free-range. It ticks
the box. I'm doing the right thing. I'm doing the ethical chicken and they're
increasingly less interested in paying a premium or free-range if they can get
RSPCA.'
Moreover the `free-range' claim is largely meaningless since meat
chickens have little opportunity or capacity to range freely during their short
lives. Quite significant innovation in technology, management, and indeed
governance, of meat-chicken production would be necessary to create a
commercially viable free-range system. There is some ongoing experimenta-
tion in this direction by various micro free-range producers and alternative
366
110 Bartley et al., op. cit., n. 15, pp. 114±15.
ß2018 The Author. Journal of Law and Society ß2018 Cardiff University Law School
small-scale pasture-based accreditations.
111
Interviewees informed us that
there are, however, barriers to entry for innovators in meat-chicken produc-
tion that are beyond the scope of this article to explore in detail but include
access to abattoirs, access to suitable technology and feed, access to retail
outlets, consumer understanding of the issues, and the whole of government
commitment to a more sustainable and healthy food system overall. The
dominance of the conventional intense industrial barn-based system, and its
successful legitimation via the supermarkets and RSPCA Approved, may
further serve to `lock in' an approach that at best ameliorates the suffering of
chickens in minor ways but does not change the system.
CONCLUSION
Animal welfare issues for meat chickens have been created by extreme
breeding and the intense `mono-culturing' of single animal species in
controlled conditions. These are also the very conditions that have created an
abundance of affordable meat. Our analysis suggests that labelling can be an
important mechanism by which an `overflow' of civic concern about animal
welfare is expressed and managed. Political consumerism has some traction,
but it is quite limited.
In Australia, RSPCA Approved and FREPA free-range are two different
ways in which higher-welfare labelling has impacted, in a limited way, on
chicken welfare. We have shown that RSPCA Approved provides a small
incremental improvement in welfare for the vast majority of Australia's
meat-chicken population. Yet it also helps legitimate or (to coin a term)
`welfare wash' the overall project of the intense animal industry through the
`halo effect' of prominent `RSPCA Approved' stamps on supermarket
products. FREPA free-range labelling, by contrast, is used to market a niche
product. It is selling ethical comfort to those who can afford to pay, yet it
only marginally improves the lives of a small proportion of chickens.
This does not mean that labelling initiatives have no impact. The
existence of `free-range' and other higher-welfare label claims also provides
an ongoing (but not yet realized) source of challenge and disruption to
intensive barn-based production. As some producers experiment with more
truly alternative methods of farming meat chickens, these may attract
consumer and animal welfare interest. This may prompt change through the
creation of new regulatory actors (for example, new standards accreditation
bodies), the forging of new alliances (for example, between a supermarket or
producer and an animal welfare organization) or legal action that stops one
practice and/or mandates another (for example, enforcement action against
367
111 PROOF (Pasture Raised on Open Fields), at
older Humane Choice, at
ß2018 The Author. Journal of Law and Society ß2018 Cardiff University Law School
misleading or deceptive conduct). As long as social movement activism and
farmer innovation keep occurring, there is the potential for improvement.
The danger is that widespread adoption of an incremental change (RSPCA
Approved) may act as a stop on further productive tension and innovation.
Our analysis highlights the significance of the network of actors behind
higher-welfare labels. The label has become a space for contestation over the
regulation and governance of the food production and retail process itself.
The supermarkets have become particularly important intermediaries of the
label as a governance space. Private accreditation standards (RSPCA or
FREPA) are required or taken up only to the extent that other actors require
them or influence them in some way, and it is Australia's two major
supermarkets working together with the RSPCA and some processors that
have largely cornered the field for the higher-welfare labelling of meat
chicken. The chickens themselves may have benefitted (at least to a small
degree) and this also represents an advocacy victory for the RSPCA. These
are, however, fragile accomplishments in the sense that they depend on
supermarkets to see RSPCA Approved as an important part of their brand
identity. RSPCA Approved could have a more long-term impact on
chickens' lives if producers, supermarkets, and animal welfare groups were
willing to cooperate to ensure that the incrementally improved standards in
RSPCA Approved were adopted and, importantly, actively implemented and
enforced by government as the new baseline regulation. In other industries
and at other times, producers have sometimes advocated for standards to be
improved to ensure a level playing field when some have voluntarily adopted
higher public interest standards while others are still operating below
industry standard. RSPCA Approved could, in theory at least, provide a
leading-edge practice that can build capacity and acquiescence to improved
government standards in the future.
Government action and inaction is still an important part of the animal
welfare governance story. The combination of relatively low government
mandated animal welfare standards, weak monitoring and enforcement of
those standards, and lack of legislative definitions for terms like `free-range'
have created an opportunity for retailer-led higher welfare standards. But
powerful action from another official government agency, the national con-
sumer protection authority, influenced which standards were taken up and
which lost market share. In this case, producer-led standards lost legitimacy
when the ACCC successfully prosecuted them as misleading in court. This
left the governance space free for the supermarkets to become the most
influential players. It also expanded the range of actors who have a real stake
in and influence over the supply chain to include animal advocacy groups,
alternative farming certifiers (organic and FREPA) and consumer advocates
as well as the supermarkets. These actors all gained influence in addition to
and sometimes at the expense of the growers, vertically integrated processors
(or brands), industry associations, and government departments of primary
industries.
368
ß2018 The Author. Journal of Law and Society ß2018 Cardiff University Law School
We also see some hints that labelling aimed at political consumerism can
be a mechanism for fomenting further `overflow' that might prompt further
change in the market and even in official regulatory policy.
112
The creation
and propagation of new ideas, terms, and images for production and
marketing purposes may garner public support and translate into policy
discourses. For example, animal products that show real-life pictures of
animals on vegetated ranges with shelter and enrichment can prompt citizens
to ask why regulatory standards for free-range chickens do not set out
standards for shelter and enrichment on the range. They may also reinforce a
growing majority view in Western countries that animals are sentient beings
whose interests should be considered in policy making.
113
The creation of a
new marketing term, such as `pastured', may help galvanize critique of
inadequate free-range production methods. Even the visibility of RSPCA
Approved in the supermarket aisle may help the RSPCA build public support
for the idea it should have a more substantial role in monitoring the welfare
of agricultural animals. The ongoing creation of new marketing terms and
supporting certifications to take advantage of niche markets or to cement
brand loyalty to particular retailers can help create technological and
discursive resources that may become a prompt for better, more sustainable
animal welfare practices and regulatory governance in the future. These are
possibilities for further research and activism to test.
369
112 See A. Hutchens, Changing Big Business: The Globalisation of the Fair Trade
Movement (2009).
113 See G. Teubner, `Rights of Non-Humans? Electronic Agents and Animals as New
Actors in Politics and Law' (2006) 33 J. of Law and Society 497.
ß2018 The Author. Journal of Law and Society ß2018 Cardiff University Law School
To continue reading
Request your trial