Bad Advice from the USDA

In a recently published article in the Ohio State Law Journal, Delcianna Winders criticizes the Department of Agriculture’s habit of issuing warnings instead of levying punishments to enforce the Animal Welfare Act (AWA); highlighting both the lack of empirical evidence that warnings actually lead to institutional change, as well as the fact that, overall, actions to enforce the AWA have dwindled in recent years. Winders takes the USDA to task for neglecting its responsibility to provide ethical leadership for food, agriculture, and other related industries in a manner that leaves animal lives in particular in severe jeopardy.

Imagine that you discover a local “puppy mill,” where dogs are forcibly bred in squalid conditions that aim to maximize profits over any well-being of the animals and often result in shocking examples of animal cruelty (an estimated 10,000 such mills exist in the USA today). If you were to file a complaint with the USDA, you might expect a licensed inspector to visit the mill, assess the conditions, and levy some punishment to provoke the mill’s operators to change their business practices and improve the living conditions of the dogs. Winders’ data indicate over 80% of the USDA’s enforcement actions in 2018 were just warnings, even though many perpetrators were repeat offenders. And not only does Winders’ study point out that there is no evidence whatsoever that such warnings motivate businesses to change their practices, but (even if they did) USDA actions to enforce the AWA have dwindled to just 47 cases in the first three quarters of the 2018 fiscal year (down from 207 actions in 2017 and 252 in 2016).

Although these sort of agency records were once readily available on the USDA’s website, they disappeared in early February 2017 (two weeks after President Trump’s inauguration) and are now obtainable primarily via a Freedom of Information Act request – a process that can take months. Meanwhile, the USDA filed no complaints and held no administrative hearings against violators between May 2017 and September 2018, instead choosing to pilot a revamped enforcement process that can notify facilities prior to surprise inspections. This lack of agency transparency, as well as other deregulatory moves (such as the decision to repeal a ban on animal trophy imports and a proposal to roll back the Endangered Species Act) provoked a former director of the Fish and Wildlife Service to comment in July, “The signal being sent by the Trump administration is clear: Protecting America’s wildlife and wild lands is simply not on their agenda.”

Admittedly, with the USDA being tasked to manage the $12 billion bailout of farmers hit by consequences of President Trump’s trade war with China, it certainly has its administrative hands full. However, when it is charged with ensuring the well-being of literally billions of creatures, one would hope that the USDA would be more attentive to its responsibilities. In a quote that forms the epigraph for Winders’ article, Abraham Lincoln quipped that “laws without enforcement are just good advice” – given the lack of evidence for the efficacy of its current favorite procedure, a USDA that prefers administrative warnings cannot presently even say that.