Free to disagree

Their aim is to ultimately force intensive poultry production out of business

THE Federal Court of Australia has decided the term "free to roam" cannot be applied to broiler chickens raised under the stocking densities employed by the major producers Baiada and Bartters.

Assuming there is no successful appeal (the decision was by a single judge), chicken meat producers will have to modify the wording on their packaging to something like “able to move around”, “not raised in a cage”, or even “raised in a nice warm barn”.

But unless they increase the amount of space available to each chicken in the period prior to day 42 of their growth cycle, they can no longer use “free to roam”.

Furthermore, the Chicken Meat Federation will no longer be able to use the term in its description of chicken meat production on its website.

If you are wondering why the Federal Court would bother itself with such semantics, you are not the only one. But it gets worse.

Not only is the Federal Court essentially taking sides in what amounts to a fundamental disagreement over intensive agriculture, it was at the behest of the Australian Competition and Consumer Commission (ACCC). And need I mention that both are funded by taxpayers?

As I have previously discussed, the ACCC took up the issue following lobbying by animal rights advocates including Lawyers for Animals. While the judgement was only delivered this week, the case was actually heard early last year. It’s not as if the ACCC had a one-off brain freeze either. Earlier this year it took on major egg producers over their proposal to adopt a standard for free range egg production.

If you were to believe the animal lobby groups, the issue is all about the welfare of chickens. They argue that at their maximum density, chickens have the equivalent of an A4 page of space. Their aim is to ultimately force intensive poultry production out of business.

To its credit the Court at least acknowledged that animal welfare had nothing to do with the case. It was all about whether consumers were being misled.

The chicken meat industry adopted the "free to roam" term in an attempt to communicate to consumers that chickens are raised in barns, not cages. Its view was that chicken meat consumption might continue to increase if more of the public knew the true situation.

The case was decided on the basis of the judge’s interpretation of the term. In his opinion it would be understood by consumers to mean, “the largely uninhibited ability of the chickens to move around at will in an aimless manner.”

In my opinion the judge got it wrong.

If we are to ascribe human values to animals, as both the ACCC and Court seemed determined to do, then it is a very idealistic definition. It might apply when we are walking in the country, but there is no reason it should stop there.

We might be free to roam at a major football match, for example, but it will certainly not be uninhibited. We may even wander aimlessly and end up on the other side of the ground, but it would be a lot harder than a broiler seeking to move around a barn.

Indeed, I suspect another judge may well come to a completely different conclusion. And if there were to be an appeal, I think it might succeed.

But let us suppose the decision stands and the ACCC continues to congratulate itself for having struck a blow for consumers. What are the implications?

First, it will give heart to the animal rights faction lurking in the ACCC to aggressively pursue every perceived transgression. Your milk comes from contented cows? Sorry, but your cows can’t be contented under your management conditions. Your pork is free range? Unless they can gambol on green grass, that’s not allowed either.

It will also stifle attempts by the agriculture industry to educate its customers about their food products. Myths abound about agriculture and its use of chemicals, management practices, welfare and sustainability. This has all sorts of consequences including, as I have previously discussed, absurd criticisms of the beef industry by the consumer magazine Choice. But if attempts to rectify these are to meet with legal challenges, what hope is there of overcoming them?

And what chance is there of the ACCC taking action against organic, biodynamic or other unconventional producers who claim health or environmental benefits for their products when no such benefits exist?

Initiating this case was a gross misuse of the wide powers of the ACCC and shows how committed activists can co-opt regulators to impose their agenda. For the Federal Court to agree with it is a travesty of justice.

It’s not my call and I know there are costly risks involved, but I’d like to see it appealed, all the way to the High Court if necessary.

A decision there to the effect that consumers are not gullible fools but capable of making up their own minds about these things would do wonders. And the ACCC could go back to doing things that actually matter.

  • David Leyonhjelm has been an agribusiness consultant for 25 years. He may be contacted at
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    David Leyonhjelm

    David Leyonhjelm

    has worked in agribusiness for 30 years and is a Senator for NSW representing the Liberal Democrats.
    Date: Newest first | Oldest first


    11/07/2013 6:47:26 AM

    The USA, the home of militant animal activists, has produced a negotiated agreement on housing for laying hens. "In 2011 both the egg industry and animal-protection activists decided to move away from their fairly rigid positions and find a better way forward. That's when the United Egg Producers, which represents nearly 90 percent of the industry, and the Humane Society of the United States, the nation's largest animal-welfare group, negotiated an agreement that required compromises on both sides." ion/inquirer/20130618_Grade_A_com promise.html
    11/07/2013 8:10:40 AM

    I think you've missed the point David. These poultry producers misled consumers, IT is that simple. Because of that, people complained - they have a right to do so. As you would do if you were told, for example, that a car you'd bought & thought was made in Europe, was made in Africa. If the industry had done the right thing to start with in being upfront and transparent about the way in which broiler chickens are bred, then they would never have had to go to court. This is about industry being held accountable & nothing else. Industry can't get away with deceiving the public anymore.
    11/07/2013 8:24:50 AM

    "And the ACCC could go back to doing things that actually matter." - this resonating last line only goes to prove how out-of-touch Mr Leyonhjelm is with the views of the general public. Animal welfare and people's right to not be misled by advertising *does* matter to the average Australian. I for one commend this decision and I hope it paves the way for more transparency in farming industries, and prevents companies from deceiving their well-intentioned customers.
    Louise S
    11/07/2013 9:19:11 AM

    David must be living under a rock somewhere . I refer to his comment "If we are to ascribe human values to animals, as both the ACCC and Court seemed determined to do, then it is a very idealistic definition". Is it idealistic to ignore all the obvious scientific evidence that animals are sentient beings like us that feel pain and fear? This was proven long ago David -
    11/07/2013 9:47:12 AM

    The court is not taking sides against intensive animal agriculture, it ruled that a company cannot blatantly mislead consumers. Those chickens are not free to roam. Therefore advertising that they are is a lie. Semantics don't matter? Right, so there is no such thing as defamation or libel, for instance. And advertisers can simply lie to consumers. These producers were trying to cash in on consumers' growing concern about animal welfare. I am delighted the court found against them. Intensive farming should be honestly presented so the public can make informed choices.
    11/07/2013 1:55:27 PM

    Hi David, You cant try dressing mutton as lamb and expect no one to notice. Consumers want to be able to buy products with confidence that the animals welfare is put ahead of profit. The want to buy on terms such as 'free to roam', without finding out that they are only free to roam within their own body space. Similar thing with 'free range'. Genuine 'free range' and 'free to roam' farmers should rightly be given the higher product prices for the standard of product they produce. High intensive farmers should likewise be given the price which the consumer finds applicable for that product.
    11/07/2013 3:10:10 PM

    By your logic Bern, I should be able to go to the car dealership, demand that they lower their price to what I believe is acceptable and if they do not comply, drag mud over the whole industry... How about offering a premium for the "free range" and "free to roam" chicken, keep the base price? But you would cry bloody murder wouldn't you? Squeeze prices up, not down.
    11/07/2013 3:29:44 PM

    So it's David's considered opinion is that it's OK to engage in deceptive marketing practices? Nice. >>the animal rights faction ** LURKING ** in the ACCC And his well researched analysis leads him to conclude that farming is under personal attack by communists? And the ACCC is infiltrated by Vegans and Fabian Socialists? ZOMG!!!!! (I am beginning to think these articles are supposed to be satirical.....) >>the ACCC could go back to doing things that actually matter. Protecting consumers from liars and spivs is doing things that actually matter.
    12/07/2013 1:34:37 AM

    Many products are labelled with "maximum 10000 chickens per hectare" for example. That's something concrete and fraud should be punished severely. But "free to roam" doesn't say anything about densities. Courts are there to prevent fraud, not to act as dictionaries. Consumers are smart enough to look for some raw numbers rather than trusting vague words like "roam". The fact that the chickens are outside the cage and can move around is good enough here. If they want to specify densities, they can do so on the packaging, and consumers can only purchase products that are specific if they wish.
    Just 1 Farmer
    12/07/2013 7:21:05 AM

    I buy eggs layed by caged chooks. Its cheaper
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    Agribuzz with David LeyonhjelmCommentary, news and analysis with agribusiness consultant David Leyonhjelm. Email David at


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