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De-regulating free-range labelling

By Stephen Keim and Jordan Sosnowski - posted Monday, 5 November 2012


When we take the trouble to pay the little extra to buy “Free Range”, we have visions of happy chickens pecking their way across grassland, returning to their dwellings only to lay and roost for the night. Visions of high fences, razor wire and arc lights are far from my mind. We have to be careful, of course.

Those who do operate chook farms of the arc lights and razor wire kind are cunning indeed. Locked out of the label that we, as consumers, are prepared to pay more for, they nevertheless use language aimed at invoking images of Free Range. We are attracted, therefore, to “Shangri-la Chook Farms” or “Chook Farms of Leisure and Love”. We turn away, however, knowing that strict regulations are in place to ensure that saintly and kindly farmers can only use the Free Range moniker. The Shangri-las, if they were as virtuous as they claim, would, indeed, be using the authorised brand.

Indeed, there are rules. The Free Range label is protected by law. Our visions, however, of Elysian Fields, in which chickens live, may not be matched by reality. And reality may be just about to get a lot worse.

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It turns out that it is the Australian Poultry Industries Association (APIA), which has recently applied to the Australian Consumer and Competition Commission (ACCC) to certify new standards for the production of Free Range poultry. APIA represents Australia’s largest poultry producers. If their application is granted, the term will become a certified trademark, which may be used to describe farms that keep up to 140,000 chickens per hectare.

A hectare is 10,000 square metres. It sounds like a lot of space, but not for 140,000 chickens to live in. A hectare is equivalent to a square with each side measuring 100 metres: sort of like a square athletics track. Imagined in that way, it seems less “Free Range” and more “Cooped and Crushed”.

There is a group of animal farmers who are seeking to maintain minimal standards for humane farming. They are called Humane Choice Standards (HCS). HCS uses the label ‘‘True Free Range” and currently sets the maximum at 50,000 chickens per hectare, not much more than a third of the number for which the APIA is seeking their certified trade mark.

APIA’s supposed justification for the certified trade mark is to create a national and more uniform body of regulation that provides more clarity for producers and accurate information to consumers: all worthy objectives provided “Free Range” continues to represent humane standards of farming.

Animal welfare groups submit, correctly, it would seem, that the proposed certified trade mark distorts public expectations of Free Range, and would mislead and take advantage of consumers.

The ACCC asked for submissions in relation to the APIA’s application for a certified trademark and consultations closed recently. The ACCC is responsible for approving the rules that govern the use of a certified trademark.Once such a mark is approved, the owner becomes responsible for licensing other users to adopt it.

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In the past, there has been litigation brought by the ACCC in respect of misleading Free Range labelling. An action was brought against Turi Foodsfor claiming chickens were ‘free to roam’ when they were reared indoors with their mobility severely restricted. In an order to which Turi Foods consented, the Federal Court ordered the company to pay $100,000. It is a labour intensive business, however, to find every shonky operator and bring an action against them.

If successful, it is APIA who becomes responsible for granting licences to poultry producers to adopt the free-range logo on their products. As a result, it falls to the industry, itself, to ensure that its members stick to the standards accepted by the ACCC.

APIA’s proposal offloads that responsibility further down the line. It makes its licensees responsible for ensuring that annual certification audits are carried out.

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About the Authors

Stephen Keim has been a legal practitioner for 30 years, the last 23 of which have been as a barrister. He became a Senior Counsel for the State of Queensland in 2004. Stephen is book reviews editor for the Queensland Bar Association emagazine Hearsay. Stephen is President of Australian Lawyers for Human Rights and is also Chair of QPIX, a non-profit film production company that develops the skills of emerging film makers for their place in industry.

Jordan Sosnowski is an Associate Fellow at the Oxford Centre for Animal Ethics. She graduated from Monash University with a Master of Laws, Juris Doctor and a Bachelor of Arts from the University of Queensland, majoring in Philosophy and English Literature. Jordan is the recipient of a Summer Research Grant from Michigan State University and is currently working in the field of legal research for the Animal Legal & Historical Web Center.

Other articles by these Authors

All articles by Stephen Keim
All articles by Jordan Sosnowski

Creative Commons LicenseThis work is licensed under a Creative Commons License.

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