Why did the Animal Legal Defense Fund go undercover?

Were Tyson poultry-slaughtering line speeds really the focal issue?

COTATI,  California––The “who,  what,  where,  when” and “how” of an Animal Legal Defense Fund undercover video exposé of alleged animal and employee abuse at a Tyson Foods chicken slaughterhouse in Carthage,  Texas were all identified in the September 14,  2015 ALDF media release announcing it.

“Why,”  however,  may only emerge from the proceedings in three related ALDF legal actions,  as they develop,  or in further actions yet to be filed.

Open questions

Among the open questions:

Why did ALDF essentially duplicate recent undercover investigations by Mercy for Animals and other animal advocacy charities?  Was this necessary from an evidentiary perspective,  or to establish legal standing for ALDF to pursue a case in development?

Why,  specifically, did ALDF abruptly jump into doing undercover videography,  after 36 years of acting as a combination public interest law firm,  source of legal education,  and legal information provider?

What will this mean,  both in terms of cases pursued by ALDF itself,  and potentially to ALDF members and donors?

Meat trade media quiet

Equally puzzling,  why have the meat industry trade media,  which typically scrutinize every relevant action of national animal advocacy groups,  barely noticed the entrance of an organization of lawyers into a branch of activism which until now was left mostly to street-level campaigners?

Beyond quoting and paraphrasing from the ALDF media release,  The Poultry Site said little more than “Tyson Foods under pressure after another undercover video.”

Global Meat News added only a Tyson Foods statement concluding that,  “During the time frame we believe this video was shot,  we have no record of any employees reporting claims of animal handling violations.”

ALDF video followed farm video from MfA

Narrated publicist Patricia Jones in the ALDF media release,  “The videotape includes an interview with the undercover investigator,  filmed in shadow to protect her identity.  This is the second undercover investigation to come out against Tyson Foods in as many months.  In July 2015,  Mercy for Animals released undercover footage from a farm contracted by Tyson Foods.”

Tyson and the McDonald’s restaurant chain subsequently discontinued buying chickens from the Mercy for Animals investigation target,  T&S Farm of Dukedom, Tennessee.   Farm owners Thomas and Suzanne Blassingame were on September 10,  2015 charged with one count each of misdemeanor criminal animal cruelty.

Said ALDF executive director Stephen Wells,  “Our investigation proves that the cruel treatment of chickens by Tyson Foods are not isolated incidents,  but a systematic,  company-wide problem.”

Line speeds

The ALDF video shows,  Jones wrote,  that “The extremely fast speed at which chickens are slaughtered greatly increases the possibility of equipment jamming in processing plants,  and makes it impossible to handle the birds in a humane fashion and creates safety concerns for Tyson Foods employees.”

This has been alleged by animal and labor advocates,  supported by extensive documentation even from government agencies,  for decades.  Since 1980 the average line speed in chicken slaughterhouses has increased in several steps from about 35 birds killed,  dismembered,  and inspected per minute to 140,  hitting 175 birds per minute at 20 of the biggest facilities.

         From 2011 until mid-2014 the U.S. Department of Agriculture pushed a proposal on behalf of the poultry industry to boost the line speeds to 175 per minute at all bird slaughterhouses.

Attempts to slow the pace

Other organizations advocating for both animal and human welfare have already sought time and again to slow or at least limit the line speeds.  Fast-moving poultry slaughter lines cause about 825,000 chickens and 18,000 turkeys per year to be boiled alive when workers miss killing them,  according to USDA data obtained in 2013 by the Government Accountability Office at request of Senator Kirsten Gillibrand (D-New York).

The Southern Poverty Law Center in 2013 documented in a report entitled Unsafe at These Speeds: Alabama’s Poultry Industry & its Disposable Workers that about 75% of the Alabama poultry slaughterhouse workforce have reported suffering an at least temporarily disabling work-related injury or illness.  An allied organization, Nebraska Appleseed,  issued similar findings in a 2009 report called The Speed Kills You: The Voice of Nebraska’s Meatpacking Workers.

OSHA refused

But the Occupational Safety & Health Administration on March 19,  2015 denied a petition to reduce line speeds submitted by the Southern Poverty Law Center and Nebraska Appleseed.

The OSHA rejection came even though the National Institute for Occupational Safety & Health had in April 2014 issued an open letter rebuking the USDA Food Safety & Inspection Service for claiming that NIOSH research done in South Carolina did not support appeals for slower poultry line speeds.

Said NIOSH in the letter,  “Line speed affects the periodicity of repetitive and forceful movements,  which are key causes of musculoskeletal  disorders.”

ALDF filings

Following disclosure of the ALDF undercover investigation,  publicist Jones wrote,  “ALDF is asking the Attorney General of the State of Delaware, where Tyson Foods is incorporated,  to investigate and sanction the company.”

In addition,  Jones said,  “ALDF filed a complaint with the USDA,  asking the agency to enforce basic food safety regulations outlined in the Poultry Products Inspection Act;  filed a complaint with OSHA citing unsafe working conditions for employees,  including repetitive motion stress injuries and the high risk of being maimed and/or injured by the rapidly moving conveyor belts;  and filed a complaint with the U.S. Securities and Exchange Commission,  accusing Tyson Foods of overstating the priority it puts on animal welfare in corporate and investor materials.

Killing methods

“The complaint contends,”  Jones continued,  “that Tyson Foods is well aware of the working conditions in its plants,  as well as of blatant violations of welfare regulations covering poultry processing.  Animal Legal Defense Fund urges Tyson Foods to immediately decrease the speed at which chickens are slaughtered,  allowing time for each animal to be treated humanely and eliminating pile-ups and jams in machinery that cause extreme suffering.  And to set a date and commitment to begin controlled atmosphere stunning,  which uses carbon dioxide or a blend of gases to cause the birds to lose consciousness before they are hung on the processing racks.”

“Controlled atmosphere” poultry killing,  recommended by PETA for at least 20 years,  usually refers to gassing the birds with nitrogen,  argon,  or carbon dioxide. These methods are all now widely used within the European Union and other developed nations.

The American Humane Association,  however,  has since 2010 promoted what it terms “a new method of controlled-atmosphere stunning for poultry called Low Atmospheric Pressure System.”  This is actually decompression,  a method endorsed by the AHA for killing dogs and cats at animal shelters from 1950 until 1985,  by which time it had been abolished throughout the U.S.

ALDF appears to favor the PETA-endorsed version.

How poultry are killed now

The present U.S. industry norm for killing poultry is to shackle the birds upside down,  alive,  on a conveyor belt,  which then drags each bird head first through an electrified “stunning bath.”  The electric shock causes the birds to evacuate their bowels prior to decapitation,  bleeding out,  and dismemberment.

One of the pretexts that the U.S. poultry industry has used for continuing to use the present system is that the birds move on one continuous line from shackling to packaging.  This is claimed to be faster than stunning and killing large numbers of birds all at once in a “controlled atmosphere,”  then shackling each bird for the remaining part of the process.  Whether there is a significant speed difference between methods is,  however,  disputed,  and may depend mainly on the design of the slaughterhouse.

Undercover video evolution

Undercover videography of slaughterhouses and related facilities was pioneered in 1989 by Minneapolis activist Becky Sandstedt.  Increasingly ambitious undercover video surveillance of animal agribusiness was undertaken during the next decade by organizations including Farm Sanctuary,  the Humane Farming Association,  Showing Animals Respect & Kindness,  and People for the Ethical Treatment of Animals.

Founded in 1999,  Mercy for Animals made undercover videography of animal agribusiness a focal mission.  By 2008 even the usually tactically conservative Humane Society of the U.S. was producing undercover video,  sending shockwaves throughout the animal use industries by winning closure of the former Westland/Hallmark slaughterhouse in Chino,  California.

“Ag-gag” laws

The frequency of successful undercover videography in animal industry facilities,  and the influence the videos have had on public opinion,  including in reducing U.S. per capita meat,  egg,  and milk consumption,  has frightened agribusiness into seeking the passage of “ag-gag” laws.  Laws meant to prevent undercover videography by animal advocates are now in effect in eight states.

The Idaho “ag-gag” law was in August 2015 overturned in a federal court case brought by ALDF and co-plaintiffs.  ALDF and co-plaintiffs are now pursuing a similar case against the Utah ag-gag law,  in effect since 2012 but not yet successfully prosecuted.

“Veggie libel”

But Texas,  where the ALDF undercover investigation was pursued,  has no “ag-gag” law.  The closest approach to an “ag-gag” law currently in effect in Texas is the “veggie libel” law passed in 1995 that was used a year later in a long-running,  ultimately unsuccessful lawsuit brought by rancher Paul Engler and his company,  Cactus Feeders,  against Mad Cowboy author Howard Lyman and television show host Oprah Winfrey for comments they made during an on-the-air discussion of Mad Cow Disease.  The case was “dismissed with prejudice” in 2002.

The Texas law holds that “A person is liable…if:  (1) the person disseminates in any manner information relating to a perishable food product to the public;  (2) the person knows the information is false; and (3) the information states or implies that the perishable food product is not safe for consumption by the public.”

If someone associated with the chicken slaughterhouse that ALDF investigated chose to sue ALDF under the Texas “veggie libel” law,  ALDF could seek to have the law overturned.

But first a plaintiff would have to sue ALDF to initiate the proceedings,  in a case presenting little chance of the plaintiff winning,  and likely to expose more rather than less of the alleged abuses that ALDF sought to document.

Fundraising ploy?

Some donors to animal causes and attorneys handling other animal-related cases had questions that ANIMALS 24-7 explored for several weeks.

A cynical perspective heard from some donors,  not necessarily donors to ALDF,  was that ALDF was simply trying to position itself to be more successful in fall and holiday season direct mail fundraising,  in competition with the many other organizations now doing undercover videography.

But while ALDF raises far less per year than the Humane Society of the U.S. ($133 million in 2013) and PETA ($43 million),  it already raises more than twice as much as Mercy for Animals,  the organization most known for undercover videos exposing agribusiness.  Mercy for Animals in 2013 raised about $3 million.

Legal questions

Legal questions concerned the apparent ALDF transition from primarily representing other organizations in cases involving undercover investigations,  for instance in challenging the Idaho and Utah “ag-gag” laws,  to in effect representing itself.

Questions were also raised about how the active involvement of ALDF in doing undercover investigations might affect the courtroom positioning of ALDF member lawyers in representing clients or acting as prosecutors in unrelated cases pertaining to the topics of the ALDF investigations.

For example,  if an ALDF member employed by a city or county is assigned to prosecute a cruelty or neglect case involving poultry,  might the defense be able to oblige the ALDF member to withdraw from the case because the member is part of an advocacy organization conducting campaign activities pertaining to the issue,  not just an attorney acting in the public behalf?

ALDF response

Responded ALDF director of litigation Carter Dillard,  “ For a long time ALDF has run campaigns,  provided legal services,   and/or appeared as a litigant.  Several of the cases featured on our website include the organization as a plaintiff.  This is common in public interest advocacy,  and it’s the most effective way to accomplish our mission rather than a deviation from it.

“Our model,”  Dillard said,  “is to do both our own investigations and maximize the legal impact of other groups’ investigations.  We think this is the most effective way to accomplish our mission.

“Our investigations and appearing as a litigant do not change the lawyer/client relationship between internal ALDF lawyers and the organization,  or the relationship with member lawyers,”  Dillard opined.

“Again,”  Dillard repeated,  “this is not really a change from what we have done before in terms of the organization campaigning and lawyering,  but our investigations program is new.”

As to whether the investigation of the chicken slaughtering plant in Texas might have been done to help set up future litigation,  Dillard added,  “That’s an internal matter and subject to attorney client privilege.

Second opinion

Agreed Lawrence Weiss,  the now retired senior attorney among several veteran attorneys whom ANIMALS 24-7 consulted,  “I don’t see a problem in ALDF bringing a civil action based upon its own investigation.  It happens all the time. Individuals and organizations hire investigators to determine the facts prior to bringing an action.  They’d be nuts not to.  The defense is free to point out that these are your own paid investigators , but in my experience that does little to diminish the credibility of the evidence.  All investigators are paid.

“If it is a criminal matter,”  Weiss continued,  “it is of course handled by the state or municipality and they would have their own attorneys prosecuting the case.  Criminal cases are more complicated than civil matters because the prosecutor is supposed to represent all of the people.

“However,  I don’t think this will be a serious problem for the following reason:  People avail themselves of ALDF’s services to find an attorney, to volunteer their services,  or to link up with similarly minded people.  It is not a voting membership and by donating to or using ALDF they are not necessarily endorsing any particular policy or action by ALDF.  This would not be valid grounds to challenge a prosecutor.”

But,  whether or not the ALDF investigation of the chicken slaughterhouse supplying Tyson means anything relative to member lawyers and/or donors,  was it really just about documenting the already thoroughly documented effects of high line speeds?

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