Morgan Zielinski

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In an age where “going viral” is a well-known term and something individuals and organizations even strive for, many dominant members of the animal agriculture industry want anything but, when it comes to many standard practices. Ag-gag, or anti-whistleblower laws prevent workers or undercover investigators from reporting or publicizing poor industry practices such as animal abuse.[1] Ag-gag legislation protects agricultural facilities, many of which are factory farms, that mistreat and abuse animals unnecessarily to make larger profits.[2]

Farmed animal abuse, when exposed, has been met with public outrage, yet consumers increasingly want transparency regarding the production of their food.[3] So why is transparency so difficult to provide? One answer is likely agriculture exceptionalism. Agriculture exceptionalism is the belief that the agriculture industry should be given advantages and protections because it is necessary for humans to survive.[4] With the idea that the agriculture industry is essential, members of the industry support ag-gag legislation to maintain high profits and stay out of the public eye to avoid any interference.[5]

The belief that agriculture is so important and so essential that it must be protected above all else may be true. However, agriculture exceptionalism could also mean that agriculture is so important to and ingrained in our society that the industry should strive to have a transparent rather than secretive relationship with the public. Transparency will help to ensure the nation’s needs are met regarding food safety and nutrition.[6]

Ag-gag legislation has caused great controversy as it has emerged and evolved.[7] Many organizations are dedicated to ending all ag-gag legislation and some have been successful through lawsuits challenged under the First Amendment.[8] However, preempting ag-gag legislation would remove the need for lawsuits. Preemption either by Congress enacting a federal statute or by a federal agency rule is likely a successful way to end ag-gag legislation and promote transparency in the agriculture industry.

This Note discusses the emergence and evolution of ag-gag laws and the process to expressly preempt this type of legislation. Part I of this Note discusses the history and evolution of ag-gag laws and explains how this type of legislation hinders animal welfare. Part II proposes a route to express preemption through an agency rule and discusses why an agency rule is the most efficient way to address ag-gag legislation. Finally, Part III discusses preemption by enacting a federal statute.

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[1] What is Ag-gag Legislation?, ASPCA, https://www.aspca.org/improving-laws-animals/public-policy/what-ag-gag-legislation (last visited Mar. 13, 2022).

[2] See Abbie Cox, What is a “Factory Farm”?, Animal Agric. All. (June 10, 2019), https://animalagalliance.org/what-is-a-factory-farm/ (defining factory farm as a “a farm on which large numbers of livestock are raised indoors in conditions intended to maximize production at minimal cost”); How are Factory Farms Cruel to Animals, The Humane League (Jan. 5, 2021), https://thehumaneleague.org/article/factory-farming-animal-cruelty (explaining the correlation between factory farms and animal abuse).

[3] Alicia Prygoski, Detailed Discussion of Ag-gag Laws, Mich. State Univ. Animal Legal & Hist. Ctr. (2015), https://www.animallaw.info/article/detailed-discussion-ag-gag-laws; The Bottom Line or Consumer Demand–Which is Driving Food Transparency?, Hunter Coll. N.Y.C. Food Pol’y Ctr. (Jan 23, 2019), https://www.nycfoodpolicy.org/the-bottom-line-or-consumer-demand-which-is-driving-food-transparency/.

[4] See Guadalupe T. Luna, An Infinite Distance?: Agricultural Exceptionalism and Agricultural Labor, 1 U. Pa. J. Lab. & Emp. L. 487, 489–91 (1998).

[5] See Eric Sfiligoj, The Need for Transparency from Today’s Agriculture, Crop Life (Oct. 12, 2015), https://www.croplife.com/editorial/the-need-for-transparency-from-todays-agriculture/ (Arguing that food is readily available and safer today than it has historically been, but consumers are more skeptical).

[6] Sara Lacy, Hard to Watch: How Ag-gag Laws Demonstrate the Need for Federal Meat and Poultry Industry Whistleblower Protections, 65 Admin. L. Rev. 127, 153–54 (2013).

[7] Ctr. for Const. Rts., Ag-gag Across America 10–13 (2017).

[8] See generally Animal Legal Def. Fund v. Herbert, 263 F. Supp. 3d 1193 (D. Utah 2017); Western Watersheds Project v. Michael, 353 F. Supp.3d 1176 (D.Wyo. 2018); Animal Legal Def. Fund v. Wasden, 878 F.3d 1184 (9th Cir. 2018).