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 email@example.com