SUBMISSION ON THE AUSTRALIAN POULTRY INDUSTRY ASSOCIATION CERTIFICATION TRADE MARK APPLICATION NO

SUBMISSION ON THE AUSTRALIAN POULTRY INDUSTRY ASSOCIATION CERTIFICATION TRADE MARK APPLICATION NO. 3 August 2012 Voiceless Limited ACN 108 494 631 2 Paddington Street Paddington NSW 2021 P +61 2 9357 0777 F+61 2 9357 0711 Disclaimer: Voiceless Limited ACN 108 494 631 ( Voiceless ) is a company limited by guarantee. Voiceless is not a legal practice and does not give legal advice to individuals or organisations. While Voiceless makes every effort to ensure the accuracy of information presented on its behalf, Voiceless does not guarantee the accuracy or completeness of that information. Information is provided by Voiceless as general information only and any use of or reliance on it should only be undertaken on a strictly voluntary basis after an independent review by a qualified legal practitioner (or other expert). Voiceless is not responsible for, and disclaims all liability for, any loss or damage arising out of the use of or reliance on information it provides. To learn more about Voiceless, please visit http://www.voiceless.org.au Voiceless envisions a world in which animals are treated with respect and compassion

ABOUT VOICELESS As an innovator, capacity builder and ideas-generator, Voiceless plays a leading role in the development of a cutting edge social justice movement, animal protection. With a highly professional and well-educated team, Voiceless brings together like-minded compassionate Australians from the legal, academic, non-profit and education sectors to form strong and effective networks. Voiceless believes in the provision of quality information, analysis and resources to inspire debate and discussion and to empower individuals and organisations to generate positive social change. Voiceless is a non-profit Australian organisation established in May 2004 by father and daughter team Brian and Ondine Sherman. To build and fortify the animal protection movement, Voiceless: Creates and fosters networks of leading lawyers, politicians, businesspeople and academics to influence law, policy, business and public opinion; Conducts high quality research and analysis of animal industries, exposing legalised cruelty and promoting informed debate; Creates a groundswell for social change by building and fortifying the Australian animal protection movement with select grants and prizes; Grows animal law as a mainstream practice area to advocate for change in the courts and in legislation; and Informs consumers and empowers them to make animal-friendly choices. PATRONS J.M. COETZEE, Nobel Prize for Literature Winner 2003, author of 'Lives of Animals' and 'Elizabeth Costello' BRIAN SHERMAN AM, businessman and philanthropist DR JANE GOODALL, world-renowned primatologist and animal advocate THE HON MICHAEL KIRBY AC CMG, former justice of the High Court of Australia AMBASSADORS HUGO WEAVING, Actor Last Ride, Little Fish, Lord of the Rings Trilogy, Matrix Trilogy, The Adventures of Priscilla Queen of the Desert, Oranges and Sunshine EMILY BARCLAY, Actor Prime Mover, Piece of my Heart, Suburban Mayhem, In My Father s Den ABBIE CORNISH, Actor Bright Star, Stop Loss, Elizabeth: The Golden Age, Somersault, Candy, A Good Year, Suckerpunch, Limitless For further information visit http://www.voiceless.org.au All correspondence in relation to this submission should be directed to: Ms Ruth Hatten, Legal Counsel Voiceless 2 Paddington Street Paddington NSW 2021 AUSTRALIA T: + 612 9357 0777 F: + 612 9357 0711 email: ruth@voiceless.org.au 3 August 2012

1 Introduction 1.1 The Australian Competition and Consumer Commission (ACCC) has called for public comment on the Australian Poultry Industry Association Certification Trade Mark Application No. (APIA Application). 1.2 In order to certify the Certification Trade Mark (CTM), the ACCC must be satisfied that the CTM application and corresponding rules meet the technical requirements set by the Trade Marks Act 1995 (TMA) and do not raise consumer protection, competition or associated concerns. Specifically, the ACCC must be satisfied that: (a) (b) the technical requirements of the rules as set out in section 173 of the TMA have been met; the rules governing the use of the CTM: (i) (ii) would not be to the detriment of the public (the public detriment test); and would be satisfactory having regard to the principles relating to restrictive trade practices in Part IV of the Competition and Consumer Act 2010 and the principles relating to unconscionable conduct (Part 2-2), unfair practices (Part 3-1), and safety of consumer goods and product related services (Part 3-3) in Schedule 2 (Australian Consumer Law) of the Competition and Consumer Act 2010 (the trade practices test) as provided for by section 175 of the TMA. 1.3 The APIA Application proposes standards for free range chicken and turkey meat production (APIA Standards). The APIA Standards cover farm practices and related activities that would require implementation in order for chicken and turkey meat to be sold as APIA Free Range Accredited. An APIA CTM logo will appear on the packaging of chicken and turkey meat products in order to indicate that the chicken and turkey meat products are APIA accredited free range. 1.4 If the APIA Application is approved, there will be serious consequences for consumer protection, especially in respect of unfair practices (Part 3.1 of the Australian Consumer Law), likely misuse of market power (Part IV of the Competition and Consumer Act) resulting in unfair competition within the chicken and turkey meat production industry and issues of animal welfare. As a consequence of these matters, there will be an overall detriment to the public. Page 1

2 Consumer protection 2.1 Consumers are becoming increasingly concerned with issues surrounding the use of terms such as free range. This concern arises due to the absence of a legal definition of such a term. As far as the term free range is concerned, there are a number of standards and guidelines that attempt to provide clarity on what the term means. The most prevalent are: (a) (b) (c) (d) (e) (f) the Model Code of Practice for the Welfare of Animals: Domestic Poultry, 4 th edition (Model Code) (parts of which have been adopted in some State legislation); the National Animal Welfare Standards for the Chicken Meat Industry (National Chicken Meat Standards); the Free Range Egg & Poultry Australia Ltd (FREPA) Free Range Meat Bird Standards (FREPA Standards); the RSPCA Approved Farming Scheme Standards for Meat Chickens (RSPCA Standards); the Humane Choice True Free Range Standards Poultry (Humane Choice Standards); and the National Association for Sustainable Agriculture Australia Limited (NASAA) Organic Standard (NASAA Standard), used for example by the Organic Food Chain. 2.2 The APIA Application states that the APIA standard adopts as a foundation the National Animal Welfare Standards for the Chicken Meat Industry, which go well beyond the national codes of practice and welfare standards adopted by the Federal and State jurisdictions, and includes all the essential aspects of the RSPCA Approved Farming Scheme Standards. 2.3 From a review of the APIA Standards, it appears that the above statement is correct. While APIA might consider this to be a positive state of affairs, this is not the case. Unfortunately, the standards which the APIA Standards have adopted and / or go beyond, do not adequately provide the humane treatment of chickens and turkeys that the public would expect (or indeed that the animals are entitled to). 2.4 By way of example: (a) The APIA Standards provide for a maximum stocking density inside sheds of: Chickens Page 2

(i) (ii) 28kg per m 2 of available floor area for naturally ventilated sheds; and 30kg per m 2 of available floor area for mechanically ventilated sheds. Turkeys (i) (ii) (iii) 28kg per m 2 of available floor area for naturally ventilated sheds (birds below 5kg) 30kg per m 2 of available floor area for mechanically ventilated sheds (birds below 5kg); and 36kg per m 2 of available floor space for mechanically ventilated sheds (birds over 5kg). A stocking density of 28-30kg per square metre equates to approximately 130,000 to 140,000 chickens per hectare (based on an average chicken weight of 2kgs). A stocking density of 28-36kg per square metre equates to approximately 50,000 to 60,000 turkeys per hectare. The Humane Choice Standards 1 and the NASAA Standard 2 provide that when livestock are housed on a temporary basis or at night, the minimum on ground density shall comply with not less than 1 square metre for every five birds including the roosting area and for turkeys, not less than one square metre for every two birds on ground. This equates to a maximum inside shed stocking density of 50,000 meat chickens and 20,000 turkeys per hectare. A stocking density of such large proportions as proposed by APIA is not free range. In fact, research shows that stocking densities at or higher than 30-40kg per square metre have result in poorer welfare outcomes, including pathologies (breast blisters, chronic dermatitis and leg disorders), higher presence of infectious agents and rest disturbance. 3 It is important to note that in the case of ACCC v Turi Foods Pty Ltd (2) [2012] FCA 19 (23 January 2012), the parties agreed (by way of an Agreed Statement of Facts) that the stocking density (being 18.19 meat chickens per square metre with a target weight of the meat chickens being 1.7kg and 12.12 meat chickens per square metre with a target 1 Humane Choice True Free Range Standards Poultry 2011 Version 1.1, Standard 4: Indoor Housing, 4.1: Housing, paragraph 6. 2 National Association for Sustainable Agriculture Australia Limited (NASAA) Standard, December 2004 amended February 2012, paragraph 7.17.4 and Table 4 Housing Density for Housed Animals. 3 European Commission Scientific Committee on Animal Health and Animal Welfare, The Welfare of Chickens Kept for Meat Production (Broilers) 21 March 2000 http://ec.europa.eu/food/fs/sc/scah/out39_en.pdf, 66. Page 3

weight of 2.3kg to 2.4kg) does not provide meat chickens with substantial space available to roam around freely. 4 The stocking density provided for in the APIA Standards is 28kg per square metre of available floor area for chickens in naturally ventilated sheds and 30kg per square metre of available floor area for chickens in mechanically ventilated sheds. Framing the density in this way, the stocking density in the Turi Foods case equates to 30.92kg per square metre and 27.8kg per square metre respectively. Thus, the stocking density in the case of Turi Foods equates to the stocking density proposed in the APIA Standards. Relying upon what was agreed between the parties in the Turi Foods case and what appears to be the ACCC s view on appropriate stocking densities, this stocking density does not allow chickens freedom to roam. To allow this stocking density in a free range production system is clearly inadequate. (b) The APIA Standards fail to set a maximum stocking density for the range. It simply provides that the total available range area must be at least 1.5 times the size of the total shed floor area for new sheds (those built after 1 July 2011) and 1 times the size of the total shed floor area for existing sheds. While the RSPCA Standards also fail to set a maximum stocking density for chickens on the range, the Model Code sets a maximum stocking density on the range of 1,500 meat chickens per hectare with more allowed only where the flock is rotated. 5 Without a stocking density prescribed for the range, it is assumed that the APIA Standards will revert to the Model Code or the National Chicken Meat Standards on this point. The Model Code allows producers to stock birds at a density higher than 1,500 per hectare if they can show rotation of flocks. In effect, the Model Code sets no maximum density. The National Chicken Meat Standards recommend a stocking density of 14 birds per square metre inside sheds and on the range. 6 Voiceless has been advised that the Humane Choice Standards are currently being revised and will include a maximum stocking density on the range of 1,500 meat chickens per hectare. 7 (c) The APIA Standards provide for a minimum period of 8 hours artificial lighting per day (unless chickens have access to natural daylight) and a 4 Paragraph 24 of the Agreed Statement of Facts, reproduced at paragraph 6 of the Reasons for Judgment in ACCC v Turi Foods Pty Ltd (2) [2012] FCA 19 (23 January 2012). It seems very odd that APIA, which includes Turi Foods, the first respondent in this case, would propose a stocking density that is viewed by the ACCC, and by Turi Foods itself, as inadequate. 5 Appendix 2, A2.1.4. 6 Paragraph 2.7.2. 7 Personal communication with Lee McCosker, Chief Operating Officer, Humane Choice, 23 July 2012. Page 4

minimum period of 4 hours continuous darkness (to be provided at night) in every 24-hour period. 8 The same standard applies to turkeys. The minimum period of eight hours artificial lighting mirrors the RSPCA Standards 9 and the Model Code 10 but the Model Code fails to provide a minimum period of darkness. In contrast, the Humane Choice Standards require supplementation of natural light by artificial means to provide a maximum of sixteen (16) hours of light per day with a continuous nocturnal rest period without artificial light of at least eight (8) hours. 11 Research has shown that a longer rest period is beneficial for birds primarily due to lower incidences of leg health and metabolic problems. As a result of such research it is strongly recommended that both chickens and turkeys be given 16 hours of light and 8 hours of dark. 12 (d) (e) The APIA Standards require that the range area must provide adequate shelter from the weather and from avian predators, being at least 8m 2 of shade for every 1000 birds and that every reasonable effort must be made to provide protection from predators. 13 This mirrors the RSPCA Standard. In contrast, the Humane Choice Standards require that shade must be made sufficient enough to allow all birds to access it without having to crowd together and that birds must be protected from predation. 14 The APIA Standards provide that cervical dislocation is the approved method for humane killing of individual cull birds on-farm 15, whilst this method is not allowed under the Humane Choice Standards. Instead, the preferred method of slaughter is controlled atmosphere killing ie exposure to gas with the only other available method being stunning followed by bleeding out. 16 Cervical dislocation raises a number of animal welfare concerns. Studies have shown that visual evoked responses can be obtained from hens for up to four minutes after disclocation; 17 that while a low-cost kill method, the method can result in 8 Paragraph 2.13. 9 Paragraph 3.16. 10 Paragraph 5.5. 11 Paragraph 11. 12 The British Columbia Society for the Prevention of Cruelty to Animals, Broilers & Turkeys Need Rest, How to Improve Welfare through Better Lighting Programs (June 2010) <http://www.spca.bc.ca/assets/documents/welfare/farm/factsheet-poultry-lighting-program.pdf>. 13 Paragraph 2.5. 14 Paragraph 5.1(a) and (c). 15 Paragraph 2.20. 16 Standard 15, f. 17 International Society for Applied Ethology, Ethical Treatment of Animals in Applied Animal Behaviour Research <http://www.applied-ethology.org/ethical_guidelines.html>. See also M. Erasmus et al Using time to insensibility and estimated time of death to evaluate a nonpenetrating captive bolt, cervical dislocation, and blunt trauma for onfarm killing of turkeys (July 2010) 89 (7) Poultry Science 1345 1354. Page 5

poor bleedout and wing hemorrhage; 18 and that the method frequently leads to decapitation. 19 (f) The APIA Standards require that all feed and water must be provided inside the shed, not on the range, so as not to attract wild birds, predators and pests to the range. 20 There is no such restriction in any of the other standards referred to. The NASAA Standard requires continual access to clean water and feed. 21 The Humane Choice Standards require access to an adequate supply of clean, fresh drinking water at all times. 22 By restricting provision of feed and water to inside the shed, producers will in effect be encouraging chickens and turkeys to remain inside the sheds rather than going outside. In a genuine free range system, animals are encouraged to utilise the outside spaces. There are various forms of encouragement, such as shelter, protection from predators, environmental enrichment such as hay bales, and the provision of feed (palatable vegetation) and water. 2.5 Animal welfare is a matter of difference for consumers. In a recent survey conducted by Voiceless, it was found that almost 91% of respondents consider animal welfare when making food-buying decisions. The survey also found that almost 90% of respondents considered that a stocking density of 20 chickens per square metre in a closed shed meant that the chickens were confined. 2.6 Should the ACCC approve the APIA Application, there will be another set of standards in place that will only lead to further confusion on behalf of consumers as to the true meaning of free range. Further, the APIA Standards are not sufficient in terms of animal welfare to appease a consumer base that has such high concerns for animal welfare when making food-buying decisions. This is illustrated by the examples above, predominantly by the stocking density in the sheds. 3 Likely misuse of market power 3.1 Should the APIA Application be approved, there will likely be unfair competition between businesses that are producing genuine free range chicken and turkey meat products (for example Envirorganic, which complies with the Australian Certified Organic Standard 23 that prescribes, amongst other things, an inside 18 V. B. Brewer, A. C. Fanatico, W. J. Kuenzel, C. M. Owens, V. A. Kuttappan, and A. M. Donoghue, Humane slaughter methods for small- and mid-scale poultry operations (2010) 89 Poultry Science (E-Suppl.1) 523, 588. 19 Sara J. Shields, Samiyun Park, and A.B. Mohan Raj, A Critical Review of Electrical Water-bath Stun Systems for Poultry Slaughter and Recent Developments in Alternative Technologies (2010) 13(4) Journal of Applied Animal Welfare Science 10. 20 Paragraph 2.15 (chickens) and paragraph 2.15 (turkeys). 21 Paragraph 7.13.6. 22 Paragraph 2.1a. 23 Biological Farmers of Australia Ltd, Australian Certified Organic Standard 2010 Version: 1.0. Page 6

shed stocking density for meat chickens and turkeys of 25kg per square metre, 24 with a cap of 1,500 birds per shed; 25 a restriction on artificial lighting to supplement natural light of 16 hours per day 26 and maximum outdoor stocking rates of 2,500 meat chickens and 800 turkeys per hectare 27 ) and those that produce chicken and turkey meat in accordance with the APIA Standards. 3.2 APIA is a member of the Australian Chicken Meat Federation (ACMF) and a consortium of the largest poultry meat producers in Australia supplying chicken and turkey to all the supermarkets and home brands as well as fast food outlets such as KFC and Red Rooster. It consists of: (a) (b) (c) (d) (e) (f) (g) Ingham Enterprises Pty Ltd; Baiada Poultry Pty Ltd; Turi Foods Pty Ltd; Cordina Chicken Farms Pty Ltd; Golden Cockerel Pty Ltd; Hazeldene s Chicken Farms Pty Ltd; and Red Lea Chickens Pty Ltd. 3.3 Its biggest members are large integrated companies, including Inghams Enterprises Pty Ltd and Baiada Poultry Pty Ltd who together supply approximately 70% of meat chickens marketed in Australia. 28 The executive member of APIA is Mr Kevin Radich, the Vice President of the ACMF and the National Operations Manager for Ingham Enterprises. One could therefore reasonably assume that actions of APIA are those that will benefit the biggest producers. 3.4 APIA does not represent the chicken meat industry, just the producers who have the monopoly on the industry. It does not represent the small to medium producers, such as Envirorganic. 3.5 These actions must be questioned. Genuine free range chicken and turkey meat producers are quite small compared to the corporate producers. The ability to put a free range stamp on chicken and turkey meat products produced in accordance with the APIA Standards will unfairly put the large 24 Paragraph 5.2.3. 25 Paragraph 5.2.4. 26 Paragraph 5.2.6. 27 Paragraph 5.2.3. 28 Australian Government, Department of Agriculture, Fisheries and Forestry, Chicken Meat (15 June 2011) <http://www.daff.gov.au/agriculture-food/meat-wool-dairy/ilg/industries/chicken_meat>. Page 7

corporate producers at a distinct advantage, likely resulting in unfair competition between genuine free range chicken and turkey meat producers and those falsely holding themselves out to be. Such unfair competition could result in genuine free range producers going out of business and the loss of a product that meets consumer expectations. Misuse of market power is likely and Voiceless urges the ACCC to err on the side of caution in this regard. 4 Issues of animal welfare 4.1 Animal welfare has been established as the main reason why consumers choose to purchase free range products. 29 Consumers want to be assured that birds are not confined, that birds have adequate access to pasture and that they have more space. A stocking density of 140,000 chickens and 60,000 turkeys per hectare does not satisfy the consumer expectation that free range equals more space. This is especially so where high stocking densities can result in social stress and increased levels of aggression, displayed by way of feather pecking and cannibalism, 30 due to competition for space. 4.2 While animal welfare is not a determining factor for the ACCC approving the APIA Application, it is relevant when considering consumer protection. This is so in circumstances where consumers hold expectations of buying meat products that are genuinely free range. 5 Overall detriment to the public 5.1 Public detriment includes any impairment to the community generally, any harm or damage to the aims pursued by the society. 31 5.2 APIA provides various reasons for implementing a new free range certification program, which include (a) (b) A national industry standard for free range poultry meat needs to be developed that is more comprehensive, addresses the animal welfare concerns held by consumers and consumers more fully and is wholly focussed on chicken and turkey meat; Current arrangements do not provide a sufficiently robust and animal welfare focused set of standards specific to chicken and turkey broilers that also takes into account other societal drivers to optimise longer term outcomes and to make free range poultry meat readily available to customers and consumers; 29 Refer paragraph 2.5 of this submission. 30 T.A.D. Nagle and P.C. Glatz, Free Range Hens Use the Range More When the Outdoor Environment is Enriched (2012) Asian-Australian Journal of Animal Science, 589. Nb. This study was undertaken in respect of layer hens but it is presumed that the results concerning use of the range apply to meat chickens as well. 31 Re 7-Eleven Store Pty Ltd (1994) ATPR 41-357. Page 8

(c) (d) The new standard is a significant improvement in terms of transparency and animal welfare outcomes; and Consumers will be able to make informed purchasing decisions. 5.3 It is unlikely that the new program will deliver in part or in full any of the above matters. As shown throughout this submission, there are many instances where animal welfare concerns are not adequately addressed and consumers will still be left with uncertainty as to whether APIA certified products are genuinely free range and take animal welfare considerations to heart. 5.4 As mentioned above, consumers are increasingly concerned about issues of animal welfare and are consequently purchasing products that are produced using free range methods. Consumer awareness of genuine free range products is quite lacking due to confusion that surrounds whether a product is genuinely produced using free range methods. If the ACCC decides to approve the APIA Application, further confusion will exist as to what is genuine free range chicken and turkey meat. Consumer expectations of free range meat will not be satisfied and as such, there will be detriment to the public. 6 Summary 6.1 In closing, it is Voiceless s opinion that the ACCC must refuse the APIA Application. Concerns exist as to consumer protection, likely misuse of market power and an overall detriment to the public should the APIA Standards be approved. Voiceless also has serious concern about APIA making critical decisions which impact animal welfare and consumer rights when their primary, if not only, concern is producer profit. Industry should not be determining matters of public interest. 6.2 For consumer concerns to be adequately addressed, Voiceless recommends that a legal definition of free range is required that subscribes to the Humane Choice Standards. Failing that, or in the interim, the only approved free range standards should be those that mirror the Humane Choice Standards. Respectfully submitted by Ruth Hatten, Legal Counsel, Voiceless Page 9