Roaming chickens

The chicken meat industry may soon have a better idea of what free range means in legal terms. The ACCC is taking action against both individual producers and the Chicken Meat Federation claiming it is misleading or deceptive to use the term "free to roam" in advertising and packaging.

What it objects to is claims that chickens are able to roam freely in conditions equivalent to a free range system when raised in barns (called sheds in the industry), claiming the population density precludes such movement.

This will be an interesting case. There is obviously no question that the chickens are at least theoretically able to roam, since the barns in which they are raised are quite big. At issue is whether they are free to do so in practical terms.

The ACCC lacks expertise in many fields, including being able to define a market (as I have described previously), and I suspect it probably knows next to nothing about raising chickens either. But ignorance never seems to inhibit its confidence. In this case it is so certain of its position that it is seeking multiple remedies, including pecuniary penalties. You could be forgiven for wondering if producers had been promising a free massage and law degree with every frozen chicken.

Courts have no expertise in chicken production either, but that is OK. The ACCC will be obliged to present evidence to support its view that chickens require more space for the term "free to roam" to be accurate. That will obviously require the views of experts and might introduce some interesting questions. Do chickens actually want to roam if given the opportunity, or is that an anthropomorphic concept? If they are given more space, will they in fact roam? And if they have limited desire to roam, how can it be said they are not free?

No doubt someone will point out that meat chickens are slaughtered for human consumption at just six or seven weeks of age, so they have had little opportunity to learn about variations in personal space.

Chickens are also hierarchical flock animals, meaning they may be more concerned about their place in the pecking order and in no hurry to wander about encountering a lot of other chickens with which they have not sorted out their status.

It will be noted that when chickens are first introduced to barns at around a week old, their potential to roam is quite different from when they reach slaughter weight. Perhaps the ACCC will be asked whether, if the producers had claimed "Free to roam except for the last week of their life", it would have commenced the case.

And I am sure it will be pointed out that density is far less important than other environmental factors in determining bird welfare.

What we can say with considerable certainty is that the space they have is no impediment to their growth rate. No matter how free they are, there is well and truly enough space for them to find their food and water, sleep, eliminate waste and remain remarkably healthy. Indeed, if this were not the case you can be sure the chicken farmers would quickly change it.

In fact, the case is not based on concerns about the welfare of chickens at all. Apart from a few vegetarian radicals, nobody is accusing chicken farmers of mistreating their birds. Rather, it has arisen because chicken farmers have actually increased the space provided to their birds in order to appeal to ignorant consumers who think "free to roam" sounds nice.

This is one of many manifestations of the gap between the perceptions of consumers and the realities of food production. To the extent that they think about where their food comes from, consumers apparently have an image of contentedly clucking chooks wandering around in spacious green fields before being gently and painlessly put to death for our consumption.

That obviously clashes with the idea of crowding them together in a manner that we might liken to humans in a bar or at a sporting match. While we may subject ourselves to such conditions, we apparently don't want our future food to go through it. Although perhaps the chicken meat industry will point out that even when crowded together in this fashion, we continue to be more or less free to roam.

I suggest the ACCC may be heading for a lesson in humility in this case, similar to the Metcash-Franklins case. It will be asking the court to rule on notions of freedom, something that is highly contested even for humans. Courts are typically reluctant to become involved in issues that ultimately belong in the political domain.

I am also at a loss to understand what possible benefit might be achieved by spending taxpayers' money on this case. Even if the ACCC succeeds, chicken producers can simply stop using the "free to roam" claim. This will have no impact whatsoever on chicken consumption. Even the fact that three-quarters of consumers mistakenly think chickens are treated with hormones has not done that.

Moreover, success in court will more or less include an obligation to give producers some guidance as to how much space is needed before the claim can be used legitimately. No doubt the ACCC will consider it can offer advice on that as well.

Given such guidance, it would then be a commercial decision for producers as to whether the additional cost of providing more space can be recouped by once again appealing to ignorant consumers using the free to roam description.

I think the ACCC needs to take a good hard look at its employment policies and start hiring people with some understanding of the real world. Suing chicken farmers for trying to please consumers suggests it has lost touch with reality.