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Introduction to Free-Range Eggs

The Australian consumer has cast its vote for animal welfare rights through the purchasing of ‘free-range’ eggs. It was identified that the sale of the more expensive ‘free-range’ eggs increased extensively to almost 40% of the total retail eggs sold,[1] in the public’s view as a vote for animal rights of the layer hen. This played a fundamental role in the government's decision for a national 'free-range’ labeling definition to protect the consumer, from false and misleading information regarding the conditions of the layer hen. However, this 'free-range' label definition has continued to mislead the consumer through its conditions of the ‘free-range’ standards. The government pivotal role to introduce the 'free-range' standard aligned with consumer expectation and animal welfare groups, had been intercepted by the leading supermarket's current standards. While controlling 80%[2] of the market, this was predominant in setting the standards for ‘free-range’ eggs, although these standards differentiate between the NSW animal welfare standards.

Body of NSW Animal Welfare Standards

Why Free-Range Definition was introduced?

What is the current definition?

Where is the definition found?

Why Free-Range definition was introduced?

The consumer purchases the ‘free-range’ eggs with the expectation a set of rights is given to the layer hen. The government decided not to ban conventional cages, had attracted considerable public attention as advocacy groups had conducted major campaigns to the contrary which had received significant public support. The animal welfare advocacy organizations completely opposed conventional cages on welfare grounds.[3] Therefore leaving the consumer's choice to be guided by the ‘free-range’ labeling on egg cartons which was later intervened by the ACCC for false and misleading labels regarding the welfare of the animal. The consumer preference for 'free-range' had been exploited by egg producers who simultaneously take advantage of ethical consumption, as well as the lower cost of production, by using methods consumers do not consider ethical.[4] Eggs labeled as ‘free-range’ attract a healthy price premium when compared to their non-free counterparts due to the perception that production methods from them are more ethical.[5]

What is the current definition?

Where is the definition found?

For consumer protection, the minister of consumer affairs declared that they are going to construct compulsory information standards under the Australian Consumer Law to regulate animal welfare labeling on egg cartons.[6]This labeling definition ‘free-range’ found the hens are to have meaningful and constant access to an outdoor range that has a capacity of ten thousand hens or less. The hen should be allowed to freely roam during the day time when they are amidst their laying cycle.

This is a concern as consumers buy free-range eggs on the expectations on the environment in which these eggs are produced. This is a detrimental situation where consumer expectations of hens engaging in natural behaviors and going outdoors regularly are not being fulfilled and, therefore consumers are still being misled. These expectations include facilities were hens are allowed to engage in natural behaviors, such as scratching dirt, stretching their wings, and roosting in trees.[7]While the egg industry is understood to be one of the worst offenders in terms of animal cruelty,[8] consumers have little knowledge of such mistreatment.

Is there a standard of Free- Range?

Who determined this? What standards? What litigation?

Look at the Egg Corporation (what did they want and what happen in 2016?) The ACCC released some guidelines in 2018?

How do they differentiate between the NSW animal welfare standards?

Lack of independent oversight by Enforcement agencies?

Including the structuring of the definition and on free-range farms?

Who Determined the Free-Range standard? What standards?

The government role to introduce ‘free-range’ egg standard had been manipulated by the two leading supermarkets Coles and Woolworths. The main reason behind this was that the egg industry was liable to structure the consumer law initiative, with the help of the ministers who catered to primary industries, to determine the 'free-range' eggs. This particular activity was done by the existing, barn based free-range production system. In place of small-scale business, that6 were preferred by the consumer advocates and other stakeholders of the small scale industry10.

What litigation?

The ACCC through case law attempted to find the relationship between the labeling of the eggs as no single national definition had been established. The ACCC had successfully taken to court four egg producers for deceptive and misleading conduct regarding claims that identified that the eggs were being produced using a particular method and all of the eggs were free-range.

It was identified that the producer was mistreating the live-stock as the hen was kept in poor conditions, and even when they had a chance to go out to the free-range they were not allowed to do so.11 The eggs were being sold using the internet with the help of the organization's official website that stated that all the hen in the vicinity were only fed natural grains and in addition to it, the hen was allowed to roam free until the sun goes down.[9] In 2014, Flick J agreed that the process of labeling the eggs as ' free-range' was quite misleading as the animals did not have the complete freedom to leave the barn because of a combination of; (a) the number of hen in a single barn, (b) the actual flock size in a particular barn; and (c) the size, placement, number and opera ration of the entry and exit points in a given barn.[10]

The ACCC in the Federal Court in 2015 won the case against RL Adams Pty Ltd as it was found that the organization was misleading its consumer by labeling their eggs as free-range. Although, the barn doors that allow the movement of the live-stock were being shut for almost 9 months of the year, because of which the hen was deprived of the outside world.[11]

The honorable court considered that the fundamental feature that sets free-range production, according to the consumer understanding. This is explained by choice as consumer expectation about how free-range eggs are produced were hens are free to roam or move about, with access to outdoors, paddocks, or grass areas and not confined to cages.[12]

To enhance the promotions as well as the marketing free-range eggs that should be within the framework that has been set up by the case law and the ACCC guidelines for future events. In the year 2012, it was discovered that ACCC did not accept the trademark approval that was presented by the AECL as according to ACCC the information portrayed by the AECL could be misleading and deceiving.[13] According to AECL free-range meant, that almost 20,000 hen were stationed per hectare, where there would be no guarantee of the time limit for the hen to stay outside in the ranch, what type of protection was being given to the hen, there would be no prohibition to beak trimming, along with other practices that would seem unethical to the consumers.[14]The ACCC received 1700 submissions regarding the trademark application, with all bar seven in opposition.[15]These submissions support the proposition that consumers have a higher expectation of free-range than what the ACEL was proposing.[16]

Egg Corporation (what did they want and what happened in 2016)

The Australian Egg Corporation Limited (‘AECL’) was created and it introduced the Egg Corp Assured Quality Program to help industries to easily follow the rules and regulations that have been documented for the production of eggs.[17]However, in the year 2008 Choice gave AECL the ‘Shonky Award' based on their definition of free-range that they tried to included giant infrastructures that were being used by the producers that were identified as free-range by the corporation which meant that the hen was not capable enough their way out. The ACEL expressed their view that they did not have to make sure that every bird has access to an open range as it was the chickens’ freedom of choice.[18]

The only formal definition of free-range in Australian Regulation and policy is the minimal definition inModel Code.[19]

The definition identifies that the hens should at least receive 8 hours of sunlight.[20] All the birds in the vicinity should have proper access to the shared area. Apart from this, the animals should be provided with proper shelter facilities so that they are safe during adverse weather conditions.[21] Also, the owners of the vicinity should make sure that the birds are safe from all types of attacks.[22] However, it was identified that there were no management practices defined by the AECL regarding management practices. A higher stocking density of 1500 birds per hectare is was only acceptable for vicinities that practice close areas and tried to provide fresh range area on a rotational basis.[23]

 All the egg-producing farmers came up with their definition of free-range, “meaningful and regular access” to the outdoor vicinity, where the animals are "free to roam and forage on an outdoor range” although there is no need to roam just to be considered “free-range”. All the players associated with the egg industry stated that for a maximum stocking density of 10 000 hens per hectare. This stocking density replicated the two dominant supermarkets, Coles and Woolworths also involve the hens to be housed in large scale intensive sheds with the only access to the outdoor via pop-holes. These two dominant supermarkets, now the powerful regulators of egg production and distribution of cage-free eggs but still require the supplier to get official approval and identify and increase their density requirement. Therefore ‘higher animal welfare’ for supermarket supply can mean only incremental improvements on standard factory farming. Dominant supermarket assured free-range does not improve very much on the Egg Corporation Assured standard for ‘free-range’ that the Australian Competition and Consumer Commission indicated would be misleading and deceptive to consumers.[24]

The ACCC released some guidelines in 2018?

The ACCC in 2018 released guidelines for all the producers so that they can identify what are the set standards on free-range eggs. According to the new standards the producers are not allowed to use the term free-range eggs on their egg cartons. Only those producers were allowed to use the free-range eggs on their cartons only if they provide their hen with regular access to outdoor ranches during the day time. Also, only the producer's stock density should be less than 10,000 hens per hectare. Only then they can use the tern free-range eggs.[25]

It was also identified in the guidelines that the hens can only utilize the outdoor range if the indoor conditions are favorable for the sustainability of the hen. To identify whether the animals have regular access to the outdoor ranch or not the ACCC would take the help of internal infrastructure, size of the flock, and the size of the opening. The flock size determines the size of the barn. This means in a larger barn the bird has to cover a longer distance to reach the pop-hole. The internal infrastructure can majorly affect the bird's ability to get out of the closed space, as there are multiple obstacles in the way such as other hands, conveyor belts, and feeding mechanisms.[26]The final determination for the hen to access the outdoor range is the openings, the available exit proximity, the location, the ease of access, and the size all these factors will play a crucial role to identify whether hens will use an outdoor range or not.[27] Some examples of these exceptional circumstances are as follows are poor whether condition, getting exposed to the predators, being medicated or cared for, and nest box training. If the egg producers are labeling their product 'free-range' on there, then the hens should be allowed to freely roam in the outside ranch, to monitor this the ACCC recommends a very basic technique that stated that the government body will observe the ranch and identify how many birds are present in the outside ranch, the outdoor ranch capacity should be 10,000 hens per hectare. However, if more than 10,000 birds are present per hectare then the producer cannot label its product as free-range.

However, this standard does specify that hens must go outside to be considered free-range. As long as they have meaningful access and can go outside, they will be considered free-range.

How do they differentiate between the NSW animal welfare standards?

Different requirements still exist between the industry accreditations that proved a definition for free-range eggs. The free-range farmers association requires that only 750 hens should be required per hectare also, all the birds should be allowed to use the outdoor ranch throughout the day without any restriction. This compared to Coles Egg Production Standard, the leading brand and dominant market provider is the outdoor access is encouraged but not required and only 10,000 hens per hectare are allowed for the stocking densities. Currently, there is a limit of consumers' freedom to choose a carton of eggs that is truly an alternative to industrial, intense animal factory farming by showing how four different meaning of 'free-range' have each been created by a separate supply chain and support and influenced by regulatory governance networks in which producers, brand owners, retailers, and various government and NGO actors all interact and conflict.[28] Three of the four meanings of eggs labeled 'free-range' are created largely by intense factory farming, while the fourth category is often available only at specialist alternative retail outlets.[29]

Including the structuring of the definition and on free-range farms?

During the construction of the labeling definition, the Federal Minister of Agriculture Barnaby Joyce revealed he and Small Business Minister Kelly O’Dwyer conducted a meeting relating to the egg labeling issue. It had raised concerns by advocacy group CHOICE that Mr. Joyce, who had strong connections to industrial producers, had exerted undue influence over this consultation process, leading to this list favoring larger farmers.[30] The four legal definitions, three of which hinge on hen having “meaningful access” to the outdoor range, with a maximum stocking density of 10 000 hens per hectare. This allows free-range farmers to label their egg free-range even if chickens stay inside a barn all day. The egg farmer Australia criticized this decision by the ministers as it does not require that most hens go outside on most ordinary days and brings the ACCC commonsense approach to an emotional debate. The federal small business minister, Kelly O'Dwyer, said the new standards created a "sensible" definition of free-range.[31] That is the hen can get outside, to scratch around in the pasture, and can range and not being impeded in that range is the definition of free-range eggs. Then further argued the confusion that forcing the hens out onto the range on most days in all sorts of weather conditions, was not in the best interest of the hens.

Animal Conditions on Free-range Farms?

Factory farming Conditions despite ‘free-range’ labeling?

The two dominant supermarkets have argued their free-range standards are legitimate by shifting the issue to one of how to achieve ‘higher’ animal welfare and affordable consumer choice. The large egg producers support this approach by arguing that the welfare of the hen can be defined and improved by science and animal husbandry within an intensive system and then storied and represented in branding.[32] .There is also no information about beak trimming and has made media comments signifying the importance of hen welfare.

According to the small-scale egg producers, if the beak trimming is necessary then the animals will be deprived of their natural pecking behavior. Also, this will lead to the animals being left out from their respected herd.

The dominant supermarkets assured free-range eggs now have chook-cam, supposedly showing the hens that the eggs on the range.[33]However, these cams are not very useful on large scale farms due to the number of sites with very large barn and ranges. These cams also showed the hens are only allowed out between mid-morning and midday and returning mid to later afternoon, the hottest part of the day.

Clauses in the definition construed to the farmers?

Animal Rights v Animal Welfare (Animal Theorist)

Welfare paradigm

Utilitarian approach and balancing exercise between the welfare of the animal against the perceived needs of the broader society

Supports the notion it is acceptable to use farm animals for human consumption

The utilitarian approach by Peter Singer asserts that if animals have the interest to avoid pain and suffering then they can also experience happiness. The layer hen is a sentient being and can experience pain, suffering, and happiness. Therefore this entitles them to equal moral consideration.[34]

To apply Singer's theory, the appropriate standard to be applied is decided on the greatest fulfillment of interest for the greater number of sentients. Animals have the interest to avoid being harmed or killed to satisfy the preference of humans. The application of the principle of equal consideration requires the elimination of most forms of exploitation of animals in satisfying the food preference for humans.

This utilitarian has two key criticisms, firstly how to accurately measure pleasure and pain, even if it can be defined clearly, but then to balance these up in cases of conflict.[35] The second principle is preference aggregation, it is not possible to rule out, in advance of understandings the consequences, the use of animals in a variety of exploitative settings.[36]

Conclusion on NSW Animal Welfare Standards

The consumer has voted that animals are deserving of welfare rights

Utilitarian approach and balancing exercise between the welfare of the animal against the perceived needs of the broader society supports the notion it is acceptable to use farm animals for human consumption

The Australian community purchasing free-range eggs for a premium price is an ethical exchange for animal welfare rights. The introduction of a legally enforceable definition of free-range under the Australian Consumer Law has still misled the consumer regarding the conditions of the hen. Through the manipulation of the two dominant supermarkets and the influence of the government officials managed to maintain the industrial size egg production. 'Factory farming' is still evident under the new 'free-range' definition labels due to the conditions in the shed, such as the maximum stocking density. This standard does not stipulate the hens must go outside, as long as meaningful access with the ability to go outside they can be considered free-range. It is evident for the benefit of egg production and profit-driven to keep up with consumer needs and standard of industrial free-range standard. This standard does not consider the welfare of the hen, according to Singer has the greatest fulfillment of interest for the greater number of sentients? The higher welfare labeling egg sees about 50% of shelf space devoted to cage-free eggs.[37]

Bibliography for NSW Animal Welfare Standards

Articles Books Reports

Amelia Cornish, David Raubenheimer and Paul McGreevy, ‘What we know about the Public’s level of concern for farm animal welfare in food production in developed countries’, (2016) 6 (74) Animals 1

Aaron C Timoshanko ‘Limitations of the Market-Basked approach to the regulation of farm animal welfare’, (2015) 38 (2) UNSW Law Journal 514

L. M. Campbell, C. Lee, G. N. Hinch, and J. R. Roberts, ‘Egg production and egg quality in free-range laying hens housed at different outdoor stocking densities’ (2017) 99(9) Poultry Science 3128

Christine Parker, Voting with your fork? Industrial Free-Range Eggs and the Regulatory Construction of Consumer Choice (2013) Animal of the American Academy 52

Christine Parker, 'The Food Label as Governance Space: Free Range Eggs and the Fallacy of Consumer Choice' (2014) 35 Recht der Werkelijkheid 101.

Christine Parker, Carly Brunswick, Jane KoteyThe Happy Hen on Your Supermarket Shelf (2013) 10 Bioethical Journal 165

Christine Parker, GyorgyScrinis, Out of the cage and into the barn: Supermarket power food system governance and the regulation of free-range eggs (2014) 23:2 Griffith Law Review 381

Christine Parker, Rachel Carey, Josephine De Costa, GyorgyScrinis, 'Can the hidden hand of the market be an effective and legitimate regulator? The case of animal welfare under labeling for consumer choice policy approach', (2017) 11 Regulation & Governance 368

Christine Parker, GyorgyScrinis and Rachel Carey, ‘A Public appetite for poultry welfare regulation reform: Why higher welfare labeling is not enough’, (2018) 43 Alternative Law Journal 238

Christine Parker and Josephine De Costa, ‘Misleading The Ethical Consumer: The Regulation of Free-Range Egg Labelling (2016) 39 Melbourne University Law Review 895

GyorgyScrinis, Christine Parker, Rachel Carey, ‘The Caged Chicken or the Free-Range Egg? The Regulatory and Market Dynamics of Layer-Hen Welfare in the Uk, Australia and the USA’, (2017) 30 6 Journal Agricultural and Environmental Ethics 783

Peter Sankoff Steven White Celeste black Animal Law in Australasia Second Edition The Federation Press (2013) 40

Richard Carey, Christine Parker, GyorgyScrinis, Capturing the meaning of 'free-range': The contest between producers, supermarkets, and consumers for the higher welfare egg label in Australia, (2017) 54 Journal of Rural Studies 266

Steven White, ‘Farm animal protection policymaking and the law: The impetus for change’, (2018) 43(4) Alternative Law Journal 244

Samantha Denford, Problems with Free-range Labelling of Australian Eggs: Hatching a Viable Solution, (2017) 25 AJCCL 196

Cases

Australian Competition and Consumer v RL Adams Pty Ltd [2015] FCA 1016

Australian Competition and Consumer v Pirovic Enterprises Pty Ltd [No 2] [2014] ATPR ¶42-483.

Legislation

The Australian Consumer Law (Free Range Egg Labelling) Information Standard 2017

Other

Australian Competition & Consumer Commission A guide for egg producers October 2018 https://www.accc.gov.au/system/files/1484_Guide%20for%20egg%20producers_FA.pdf

CHOICE, Free Range Eggs: Making The Claim Meaningful, June 2015, www.Choice.com.au<media

The Treasury Consultation Regulation Impact Statement Free Range Egg Labelling Consumer Affairs Australia New Zealand October 2015 https://treasury.gov.au/sites/default/files/2019-03/C2016-011_free_range_egg_labelling_RIS.pdf

[1] Professor Christine Parker et al, The hidden hand of the market: who regulates animal welfare under labeling for consumer choice approach? (2017) p 3

[2]Christine Parker Voting with Your Fork? Industrial free-Range Eggs and the Regulatory Construction of Consumer Choice (2013) Annals of the American Academy 649 p 62

[3] Ibid p 8

[4] Samantha Denford Problems with Free-range Labelling of Australian Eggs: Hatching a Viable Solution (2017) 25 AJCCL 196

[5] Samantha Denford Problems with Free-range Labelling of Australian Eggs: Hatching a Viable Solution (2017) 25 AJCCL 196

[6] Professor Christine Parker et al, The hidden hand of the market: who regulates animal welfare under labeling for consumer choice approach? (2017) p 13

[7] Donna Byrne, "Eggs, Egg Cartons, and Consumer Preferences" (2013-2014) 26 Regent University Law Review 397 p 415

[8] Donna Byrne, "Eggs, Egg Cartons, and Consumer Preferences" (2013-2014) 26 Regent University Law Review 397 p 410

[9]Ibid 44 467 [9].

[10]Ibid 44 474 [36]

[11] Australian Competition and Consumer v RL Adams Pty Ltd [2015] FCA 1016

[12] CHOICE free-range egg survey 2014 

[13] ACCC, ‘Initial Assessment of Certification Trademark Application CTM1390450 Filed by the Egg Corporation Limited’ (2012)

[14] Ibid

[15] Samantha Denford Problems with Free-range Labelling of Australian Eggs: Hatching a Viable Solution (2017) 25 AJCCL 196 p 204

[16] Australian Government, The Treasury, Decision impact statement: Free Range Egg Labelling (March 2016) 80 7

[17] Christine Parker and Joeshine De Costa, Misleading the Ethical Consumer: The Regulation of Free-Range Egg Labelling, (2016) 39 Melbourne University Law Review 895 p

[18] Choice, ‘Choice Awards: The Shonkys’ (Information Sheet, December 2008) 15

[19]CISRO Publishing, 4th edition 2002)

[20] Primary Industries Standing Committee, Model Code of Practice for the Welfare of Animals: Domestic Poultry (CISRO) publishing, 4th Edition, 2002 2.4.5.3

[21] Ibid2.4.5.4

[22] Ibid 2.4.5.5

[23]IbidAppendix 2 A2.1.4p 28

[24] Christine Parker, 'The Food Label as Governance Space: Free Range Eggs and the Fallacy of Consumer Choice' (2014) 35 (3)Recht der Werkelijkheid 101 p 123

[25] ACCC Guide for Egg Producers October 2018https://www.accc.gov.au/publications/a-guide-for-egg-producers

[26] ACCC Guide for Egg Producers October 2018

[27] ACCC Guide for Egg Producers October 2018

[28] Christine Parker, 'The Food Label as Governance Space: Free Range Eggs and the Fallacy of Consumer Choice' (2014) 35 (3) Recht der Werkelijkheid 101.

[29]Ibid

[30] Ester Hans Consumer Affairs Editor Fears over free-range density rule: Egg Labeling – Proposed Standard criticized (The Age) Melbourne Australia March 29, 2016, p 12

[31]ShalailahMedhora Free-range egg definition criticized as soon as ministers announce it; Advocacy groups and Australian Capital Territory consumer affairs minister say a density of 10,000 hens per hectare is out of step with expectation March 31, 2016

[32] Christine Parker, 'The Food Label as Governance Space: Free Range Eggs and the Fallacy of Consumer Choice' (2014) 35 (3)Recht der Werkelijkheid 101 cited Miele, M. & A. Evans, ‘When Foods Become Animals: Ruminations on Ethics and Responsibility in Care-full Practices of Consumption’, Ethics, Place and Environment 2010-13, p. 171-190.

[33] Christine Parker, 'The Food Label as Governance Space: Free Range Eggs and the Fallacy of Consumer Choice' (2014) 35 (3)Recht der Werkelijkheid 101 p 126

[34] Peter Sankoff Steven White Celeste black Animal Law in Australasia Second Edition The Federation Press (2013) p 40 

[35] Ibid p 41

[36] Ibid

[37] Christine Parker Voting with Your Fork? Industrial free-Range Eggs and the Regulatory Construction of Consumer Choice (2013) Annals of the American Academy 649 p 62

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