Regulatory capture occurs when regulation is co-opted to serve the interests of an industry or another specific group, rather than the public. When it comes to animal welfare, regulatory capture occurs when the interests of the animal agriculture industry is unduly prioritised over meaningful animal welfare standards. This phenomenon often arises when a single government institution (e.g. the country's department for agriculture) is responsible for both promoting the animal agriculture industry and setting the animal welfare standards that regulate that industry.
The 'gold standard' reform to overcome regulatory capture is to establish an Independent Office of Animal Protection, which is a separate government authority with the responsibility to set animal welfare standards without undue interference. Other smaller, more tractable reforms exist: one example is to move the responsibility for animal welfare out of the agriculture department and into another department; another example is to establish a Commissioner for Animal Protection, which is a more limited government authority with the power to hold accountable the department that does have responsibility for animal welfare.
In general, campaigning for an Independent Office (or Commissioner) of Animal Protection involves high-level policy reform, so this campaign is more challenging than other campaigns. So, this campaign is an effective choice in a particular country if several key conditions are met:
- The country must have strong institutions, effective democracy, and a concern for animal welfare. These are necessary for an Independent Office to bring about improvements in animal welfare.
- Regulatory capture must exist in that country's animal welfare regime. Regulatory capture is the problem that an Independent Office can help solve.
- That capture must be limiting the progress in the country's animal welfare standards. This would provide the motivation to select this more challenging campaign over other options for campaigns.
We provide some tests that can be used to examine these conditions in a particular country. Lastly, we conclude with some strategy recommendations for campaigning for an Independent Office.
BACKGROUND TO REGULATORY CAPTURE
Why might animals benefit from an Independent Office for Animal Protection? The motivation lies in the phenomenon known as regulatory capture.
Essentially, regulatory capture occurs when regulation is co-opted to serve the interests of an industry or another specific group, rather than the public.
For animals, regulatory capture usually means that animal welfare regulations serve the interests of the farming industry in economic profit and growth rather than the general public's interest in animal welfare.
In animal welfare regulation, the most common way for regulatory capture to occur is by a conflict of interest. Due to poor institutional design, a government department can experience a conflict of interests between its responsibility to help an industry grow and become more profitable and its responsibility to regulate an industry (1). In animal agriculture, this typically occurs when the responsibility for regulating animal welfare is delegated to the agriculture ministry (or whichever ministry, department or agency that also has the responsibility for the protection, profitability, and growth of the animal agriculture industry).
Animal welfare regulations can also be captured via cultural capture, where an industry's regulators are influenced through non-conscious, non-material means (1). For example, regulators can identify as part of the same group as industry members, view industry members as high-status, or belong to relationship networks with industry members (2). In animal agriculture, cultural capture could, for example, involve members of regulatory agencies having close connections with farmers or adopting the ideological beliefs, norms, or perspectives of the farming community (1,3).
There are other mechanisms by which regulatory capture can occur. These are less relevant to animal agriculture, but they may play a role at times. These mechanisms include the limitation of expertise and training to a handful of professional schools or programmes in which the curriculum favours industry interests (4); regulators' material self-interests, including the need for funding, legislative support, or future jobs from the industry (1,2); the possibility that more mature regulatory agencies end up protecting the industry to justify the agency's own existence (1,5); asymmetric information, where the regulator is dependent on the industry for information, expertise, or talent (1,4); industry control over the scientific studies on which regulators depend, which can occur when industry provides funding or proprietary data to academics (6); and threats of legal or political retaliation (7,8). The mechanism that facilitates regulatory capture in a particular context will determine which policy reform is best suited to overcoming capture in that context.
INDEPENDENT OFFICE OF ANIMAL PROTECTION
By understanding the conditions that facilitate regulatory capture in animal agriculture, it is possible to campaign for policy reforms that can overcome regulatory capture. Every day, well-designed policies and institutions enable government agencies around the world to resist industry pressure and protect the public interest (9). How might the capture of animal welfare regulations be overcome?
One policy that can help to overcome regulatory capture is the establishment of an Independent Office of Animal Protection. A government could establish such an Independent Office and transfer responsibility for the creation and enforcement of secondary animal welfare regulations away from the agriculture department to that Independent Office (1,3). This would mean that the responsibility to protect animal welfare is separated from the responsibility to protect the interests of the agriculture industry. Thus, the conflict of interest that leads the agriculture department to unduly prioritise profit over animal welfare is averted.
When it comes to the specifics of what an Independent Office of Animal Protection might look like, we can turn to some well-detailed proposals. Goodfellow's academic work analysed the question of what an Office should look like and gave concrete recommendations (1,3). A 2015 Bill, introduced to Australia's Federal parliament by the Greens party, gives an example of how the legislation creating an Office could be crafted (10). And the Green Party of Aotearoa New Zealand proposes, in their animal welfare policy, to establish a Minister for Animal Welfare (11).
These sources paint a picture of an Independent Office that could:
- Have the status of an independent statutory authority (3,10). This status would enable the Independent Office to preserve its independence, communicate with the public, exist as a permanent agency, develop expertise, ensure sufficient budget resources, and have flexibility in its operations.
- Take over responsibility for the governance of animal welfare from the agriculture department (3,10).
- Review, monitor, and report on standards, laws, and policies relating to animal welfare (10,11).
- Monitor, investigate, and report on animal issues (10,11).
- Implement and enforce animal welfare laws (10,11).
- Have safeguards, including limits on the extent to which ministers could influence the function of the Independent Office (3).
- Be delegated to a ministerial portfolio that is separate to agriculture (3).
- Be established at the level of government that has legal jurisdiction over animal welfare (1). For example, in Australia, the jurisdiction over animal welfare is generally held by the States and Territories, but the Federal government also holds jurisdiction over some specific aspects of animal welfare. In this case, there should be an Independent Office for each State and Territory and one at the Federal level.
- Involve industry in the process of creating and enforcing animal welfare regulations 'subject only to the limits necessary to ensure the entity’s independence' (1).
A SMALLER ALTERNATIVE: COMMISSIONER FOR ANIMAL PROTECTION
An Independent Office of Animal Protection is the 'gold standard' of animal regulatory reform. However, a full Independent Office may not be tractable in a particular political context.
One option that may be more tractable is to campaign for a Commissioner for Animal Protection. A Commissioner is like a smaller, more limited version of an Independent Office. Rather than having full jurisdiction over animal welfare regulation, a Commissioner would exist to monitor and audit the performance of the department that does have jurisdiction (1). A Commissioner is a type of proxy advocate - by studying the regulatory process and reporting on shortcomings and improvements, a Commissioner can help overcome biases and inaction in the government's animal welfare regulatory regime, even despite the Commissioner's limited powers (12). This type of entity can also be called an Inspector-General.
In Malta, there exists a Commissioner for Animal Welfare. The Commissioner for Animal Welfare was established by a 2014 amendment to Malta's Animal Welfare Act (13), after campaigning by animal advocacy organisations led to a 2013 election promise by the Labour party (14). The Commissioner has the power to conduct independent investigations into animal welfare regulations, publish reports, and make recommendations to the government (13). The Commissioner also has an educational role that involves promoting public dialogue on animal issues. However, the Commissioner does not have the power to investigate specific instances of cruelty (a responsibility held by other authorities) or enforce recommendations (14). The Commissioner is appointed by the Prime Minister, after consultation with the Minister responsible for veterinary services. Since 2021, the position of Commissioner has been held by Alison Bezzina, a well-known animal rights activist. Bezzina publishes quarterly and annual reports. During 2021, Bezzina's first year as Commissioner, she made 15 recommendations to the government: eight of these related to dog and cat welfare, four to enforcement of animal welfare laws, one to the resources allocated to animal welfare governance, one to animals kept in zoos, and one to wild animals (15). Many of these have been implemented, and some remain under discussion. Bezzina's first year also involved conducting some investigations, mostly into dog welfare, and distributing educational materials to schools and homes. There is notably a focus on companion animals, like dogs and cats, rather than farmed animals. This is because the Commissioner does not investigate instances of cruelty themselves - rather, the Animal Welfare directorate and the Veterinary Services directorate conduct investigations, and if members of the public are dissatisfied, they can ask the Commissioner to investigate the functions of those directorates. Since the public is in greater contact with companion animals, the result is that much of the Commissioner's work relates to companion animals, rather than farmed animals² (14).
Another example of a proxy advocate, albeit with a limited scope, is Australia's Inspector-General of Live Animal Exports. This position was established in 2019 following the recommendation of an independent review into the 'regulatory capability and culture of the Department of Agriculture, Fisheries and Forestry' relating to trade and live animal exports. This independent review found that live animal export posed a high risk to animal welfare and that there is an inherent contradiction in the Department's dual role as both a facilitator of trade and a regulator of trade (16). As such, the review recommended that an Inspector-General be established to 'review the performance of functions or exercise of powers by department staff members in the regulation of live animal exports'. The Inspector-General reviews the performance of the Department in regulating exports of live animals. The Inspector-General is following a three-year work plan, which includes reviews into topics including: monitoring and reporting requirements during voyages; processes around granting permits for live exports; supply chain standards; stakeholder engagement and responses to inquiries, complaints, and incidents; improvements in information technology; and implementation of new legislation.
Notably, the Australian Labor Party announced an Inspector-General of Animal Welfare as an election promise before winning the 2022 Federal election (17). Details of this policy are scarce, but the name suggests that the Inspector-General of Animal Welfare would have the responsibility to review animal welfare policy with a broad scope.
WHERE WOULD AN INDEPENDENT OFFICE IMPROVE ANIMAL WELFARE?
Now, we turn our attention to the circumstances in which advocating for an Independent Office of Animal Protection would be an effective campaign for animal advocacy organisations.
We believe that an Independent Office (or Commissioner) of Animal Protection is potentially an effective campaign in a particular country if three criteria are met: the country must meet some specific preconditions, which are listed below; the campaign must be relevant, in that regulatory capture must be a problem in that country; and the campaign must be a higher priority than other campaigns that could be pursued in that country. We will discuss each of these conditions in detail.
What are the preconditions to this campaign?
For an Independent Office of Animal Protection to function, a country or jurisdiction needs to meet some preconditions:
Strong institutions. For an Independent Office of Animal Protection to operate, the government must be capable of implementing and enforcing meaningful animal welfare regulations.
Low levels of corruption. Although an Independent Office of Animal Protection can overcome regulatory capture by resolving the conflict of interest between animal welfare regulation and industry interests, an Office cannot overcome more serious forms of corruption.
Strong democratic system. An Independent Office of Animal Protection can ensure that the public interest in animal welfare is translated into animal welfare regulations. However, this can only happen in countries where the law reflects the public interest.
Public concern for animal welfare. For the public interest in animal welfare to be translated into animal welfare regulations, a public interest in animal welfare must exist in the first place.
When is this campaign relevant?
This campaign is relevant in a country if: 1) that country is facing regulatory capture, and 2) that capture is caused by a single ministry or agency having responsibility for both animal welfare regulation and the interests of the animal agriculture industry, and unduly prioritising the latter. How can we test for the presence of regulatory capture in the animal welfare regime of a country?
There is a detailed framework written by Goodfellow that can be used to assess evidence on regulatory capture in the animal welfare regime of a particular country or jurisdiction (1,3). However, this framework requires a detailed scholarly analysis, which can be time-consuming. Where a comprehensive, scholarly analysis is not possible, there are some alternative tests that are quicker, although less rigorous:
You can check to see if animal welfare is the responsibility of the agriculture departments. If so, then regulatory capture is more likely to exist.
You can examine the process by which animal welfare standards are developed. Is the process transparent? Who funds the process, and who is involved in it? Who funds the science that feeds into the process? If the process is non-transparent and dominated by industry, then regulatory capture is more likely to exist.
You can examine the primary legislation and the concrete animal welfare codes, standards or regulations to see if there are any major discrepancies. Such discrepancies would indicate that the legislature's intent (which is closely related to the public interest) is not being implemented in practice, which suggests that regulatory capture is more likely to exist.
You can ask disinterested experts in the country if the government is unduly prioritising the interests of industry over animal welfare. The experts here must be disinterested, as people involved in a policy process may have clouded judgement as to whether regulatory capture exists (18). Researchers are ideal, as long as they do not have strong financial or personal connections to the industry.
When is this campaign a high priority?
If a country meets the preconditions for an Independent Office to function and it has been shown that animal welfare regulations in that country have been captured, then campaigning for an Independent Office of Animal Welfare would do good. However, it is still possible that other campaigns could do even more good and would thus be an even higher priority.
When is campaigning for an Independent Office of Animal Welfare a high priority in a particular country? This campaign seeks high-level policy reform, which is one of the most challenging types of campaigns. If advocacy organisations in a particular country have already tried, and failed, to achieve more specific reforms, and if those campaigns repeatedly fail for reasons relating to the governance of the system, then it becomes likely that institutional reform is needed. Likewise, if a country is falling behind in animal welfare standards compared to other countries with similar demographics, then this also suggests that institutional reform is needed.
In the following table, we illustrate how the conditions discussed above can be examined in particular countries. We show how, for a given country, it is possible to test whether the country meets the preconditions, whether the animal welfare regulatory regime appears to be captured, and whether campaigning for an Independent Office of Animal Protection is a high priority for that country. We give three examples: Bulgaria does not meet the preconditions; Switzerland meets the preconditions but does not appear to suffer from regulatory capture in its animal welfare regime; and Australia meets the preconditions, does appear to suffer from regulatory capture, and does appear to be a country where this campaign is a high priority.
Table 1. We use the examples of Australia, Switzerland, and Bulgaria to show how you can analyse whether an Independent Office of Animal Protection would be a high-priority campaign.
Does the country meet the preconditions?
|Strong institutions, according to Government Effectiveness in the Worldwide Governance Indicators (19)?|
Yes. Scores in the 90-100th percentile.
Yes. Scores in the 90-100th percentile.
Maybe. Scores in the 50-75th percentile.
|Low corruption, according to the Corruption Perceptions Index (20)?|
Yes. Scores 73/100.
Yes. Scores 84/100.
No. Scores 42/100.
|Strong democracy, according to the Democracy Index (21)?|
Yes. Scores 8.90/10 (full democracy).
Yes. Scores 8.90/10 (full democracy).
Maybe. Scores 6.64/10 (flawed democracy).
|Public concern for animals?|
High. Government survey: '95% of people view farm animal welfare to be a concern and 91% want at least some reform to address this' (22).
High. Experts report that citizens strongly care about animal welfare and that animal welfare is high on the political agenda (23).
Moderate. Eurobarometer: 88% think that animal welfare is important, and 77% think that animal welfare should be better protected (24).
Yes, meets preconditions.
Yes, meets preconditions.
No, doesn't meet preconditions.
Does the animal welfare regulatory regime appear to be captured?
|Has detailed, scholarly analysis concluded that animal welfare regulations are captured?|
Yes. A detailed, scholarly analysis has shown that animal welfare regulations are subject to capture and that this capture is caused by a conflict of interest.
(No detailed analysis is available, so proceed to the questions below.)
|Is animal welfare the responsibility of the agriculture department?|
No. Animal welfare is the responsibility of the Federal Food Safety and Veterinary Office, which sits under a separate department to the Federal Office for Agriculture.
|Is the standard-setting process opaque and dominated by industry?|
No. Concrete conditions are governed by the Animal Welfare Ordinance, decreed by the Swiss Federal Council. Animal welfare is often subject to popular vote (e.g. referenda) (25).
|Are there discrepancies between primary legislation and concrete regulations?|
No. Standards are very high, even compared to EU (23,25), suggesting that the Animal Welfare Act's purpose to 'protect the dignity and welfare of animals' is achieved (26).
No, not captured.
Is an Independent Office a high priority for the country?
|Have animal welfare campaigns in the country repeatedly failed for reasons relating to the governance regime?|
Yes. Advocacy organisations in Australia report this problem.
|Are the country's animal welfare standards lagging behind other countries with similar demographics?|
Yes. Australia's score for protecting farmed animals is lower than similar countries (e.g. UK, New Zealand) (27). These countries are making advances in welfare standards that Australia is not.
Yes, a high priority.
|Overall verdict: Is an Independent Office of Animal Protection a high priority for this country?|
Yes, it is a high priority.
No, as regulatory capture does not appear to be occurring.
No, as the country does not meet the preconditions.
We spoke to a number of organisations campaigning for an Independent Office (or Commissioner) for Animal Protection in various countries. Those conversations revealed a number of strategic considerations when it comes to this campaign:
- The closest example to a successful campaign is in Malta, which has a Commissioner for Animal Welfare. This position arose after campaigns by animal advocacy organisations led to a 2013 election promise by the Labour party to establish a Commissioner (14). This promise was fulfilled, although the role as established was admittedly slightly different to the role that was promised. Nevertheless, this indicates that campaigning for an Independent Office (or Commissioner) is tractable.
- The strategy of the Australian Alliance for Animals is to use three prongs: gathering public support, engaging the government (e.g. attracting the support of MPs with strong policy briefings), and building political pressure to make this policy a priority, particularly during election campaigns.
- Generally, the public is receptive to this campaign. Learning about the contradiction of animal welfare being the responsibility of the agriculture ministry can be a revelation for many people. Awareness and support can be generated through media coverage, particularly when an instance of cruelty is publicised or when a contradictory position by the agriculture minister is exposed. The support of community organisations - particularly organisations that are popular among the public - is also important.
- The details of the campaign and the proposed policy need to be adapted to the political context and political dynamics of a particular country. For example: in New Zealand, a Commissioner appears more politically feasible than an Independent Office because the country has a history of establishing Commissioners in other policy areas; Australia and Canada have federal systems, which affects where responsibility for animal welfare sits and the number of different governments that need to be brought on board with a campaign; and in Australia, the animal agriculture industry has more influence over one major political party (Liberal) than another (Labor), which means that the campaign may have greater success when the latter party is in power.
- Advocates should understand that this campaign is not merely a technical change. Rather, the campaign is fundamentally about power - specifically, who has power over animal welfare standards. The animal agriculture industry can feel threatened by this campaign because it sees the campaign as seeking to take power away from the industry. As such, this campaign will always involve a political battle.
- Ideally, the policy needs to be implemented in a way that will not cause it to be abolished as soon as there is a change in government. Building relationships with politicians from all major political parties could help with this. One strategic choice could also be to accept a compromise proposal, even if that proposal is watered down compared to the 'gold standard'. This would help parties and stakeholders become familiar with the concept and avoid regulatory shocks - then, in the future, the policy could be progressively developed into something more impactful.
- Similarly, when an Independent Office or a Commissioner is established, it must not be subject to regulatory capture itself. This risk can be reduced by ensuring that the legislation protects the independence of the Office and provides sufficient guidance and transparency around the appointment of key personnel. Likewise, a policy that grants the Independent Office or Commissioner concrete powers - rather than acting as a merely consultative role - is, of course, preferable (14).
- The way the policy is implemented can affect the types of policy reforms that the Independent Office or Commissioner can bring about. In Malta, the position of the Commissioner for Animal Welfare is largely designed to respond to specific public concerns about the way cases of cruelty are investigated - since the public is in greater contact with dogs and cats, this means that the Commissioner spends almost all of their time on dogs and cats rather than farmed animals (14). Since farmed animals represent the overwhelming majority of animals (and avoidable suffering) in any given country, implementing the policy in a way that permits a focus on farmed animals would be very beneficial.
- Lastly, it is emphasised that this campaign is likely to be a relatively long battle. High-level policy reform is inherently the most difficult type of campaign. For this reason, it is useful to think long-term and build strong relationships with MPs and political parties.
OTHER SOLUTIONS TO REGULATORY CAPTURE
Beyond the Independent Office and Commissioner policies, there are other options for policy reform to overcome regulatory capture in a country or jurisdiction's animal welfare regime. These options could also be useful additional policies to complement an Independent Office or Commissioner as part of a larger collection of reforms.
Responsibility for animal welfare could be moved to a different, existing department to avert the conflict of interest. Although the EU did not establish an Independent Office for Animal Welfare, it did move responsibility for animal welfare from the Directorate-General for Agriculture to the Directorate-General for Health and Consumers (1). Likewise, in Switzerland, responsibility for animal welfare is held by the Federal Food Safety and Veterinary Office, which sits under a department separate to that of the Federal Office for Agriculture.
Another option is a tripartite programme (1). Tripartite programmes empower non-government organisations that would typically be underrepresented in the regulatory regime. These programmes grant non-government organisations (NGOs) all of the information that is available to the regulator, allow NGOs to have a seat alongside industry and the regulator during negotiations, and grant NGOs the same power to sue as the regulator (1). For a tripartite programme to work, there must be a robust network of existing non-government organisations (6). When compared with a regulatory contrarian, tripartite programmes might be more desirable when there is no single, clear 'public interest' position, or when the threat of political pressure is an important advocacy tactic (6). Goodfellow (1) speculates that advocating for the establishment of a tripartite programme for animal welfare regulation may be too difficult due to the structure and culture of typical agriculture departments.
There are a handful of other tools that can help overcome regulatory capture. However, these suffer from weaknesses when applied to animal agriculture:
- Judicial review of regulatory decisions through the courts (28). A number of animal advocacy groups exist to fill this function (e.g. Advocates for Animals, Legal Impact for Chickens). However, as a method for addressing regulatory capture, judicial review suffers from some weaknesses: it considers only the tiny proportion of cases that are brought before the court; and it requires the ongoing effort and engagement of animal advocacy organisations, rather than advocating for the government to invest the effort in fixing its own poorly designed institutions.
- A number of other mechanisms that promote greater openness around regulations, including more public input and greater media coverage and journalistic scrutiny (7). These are less relevant for animal agriculture, as regulatory capture often stems from the disproportionate power held by industry voices in negotiation, rather than an absence of public input or media coverage per se. The absence of public input is often a symptom, rather than a cause, of regulatory capture.
Lastly, policy reforms can be complemented by animal welfare advisory committees. These committees typically consist of representatives from industry, animal advocacy organisations, government departments, veterinarians, and experts from animal science, ethics, and economics. These committees provide scientific evidence and policy advice. Such committees exist in the UK, Canada, New Zealand, the EU, and numerous countries within the EU.
Where a country's animal welfare regulation is subject to capture, one option is to campaign for an Independent Office of Animal Protection. Campaigns that are smaller, but potentially more tractable, include a Commissioner for Animal Protection, or simply moving responsibility for animal welfare to a different government department. These campaigns address the conflict of interest between promoting the animal agriculture industry and setting animal welfare standards. This would mitigate, or possibly even overcome, the effects of regulatory capture, thus improving the outlook for improvements of the country's animal welfare standards in the future.
This campaign is likely to be effective in countries with strong institutions, with support for animal welfare, and where regulatory capture is limiting the progress in animal welfare standards. However, this campaign will not necessarily be a priority campaign - in a given country, there may be more pressing campaign priorities. We encourage you to examine the context of your own country against the contents of this report, and to get in touch with us at Animal Ask if you would benefit from further assistance in selecting a campaign.
APPENDIX: EVIDENCE ON CAPTURE OF ANIMAL WELFARE REGULATIONS
When it comes to regulatory capture in animal agriculture, the seminal study is that by Goodfellow (1,3). Goodfellow's study adopts Professor Barry Mitcnick's definition of regulatory capture (29):
‘Capture’ is said to occur if the regulated interest controls the regulation and the regulated agency; or if the regulated parties succeed in co-ordinating the regulatory body’s activities with their activities so that their private interest is satisfied; or if the regulated party somehow manages to neutralize or ensure nonperformance (or mediocre performance) by the regulating body; or if [...] the regulated party succeeds (perhaps not even deliberatively) in co-opting the regulators into seeing things from their own perspective and thus giving them the regulation they want; or if, quite independently of the formal or conscious desires of either the regulators or the regulated parties the basic structure of the reward system leads [...] regulators inevitably to a community of interests with the regulated party.
Goodfellow (1,3) proposed a framework that can be used to assess evidence on regulatory capture in the animal welfare regime of a particular country or jurisdiction. Firstly, one must offer and defend a falsifiable model of the public interest. Secondly, one must show that policy has shifted away from the public interest towards the industry interests. Thirdly, one must show a causal relationship between those three indicators and some mechanism of regulatory capture.
To show that a policy has shifted away from the public interest towards industry interests, Goodfellow gives three indicators of regulatory failings. These indicators provide a benchmark that can be used to test claims that the public interest has been subverted in the context of animal welfare. The indicators of regulatory failings are:
- Inadequate animal welfare standards,
- Prevalence of serious animal welfare incidents in the agricultural sector, and
- The presence of regulatory process deficiencies.
To illustrate this framework, we will describe how Goodfellow applied it to the context of animal welfare regulations in Australia. As a model of the public interest, Goodfellow
proposed that, in Australia, there is a public interest in: '(1) protecting farm animals from cruelty; and (2) promoting farm animal welfare through incremental, but sustained, improvements in welfare standards over time'. Goodfellow argues that this two-fold public interest is the purpose of animal welfare legislation throughout the country and also reflects empirical research on public opinion. Goodfellow then showed how the three indicators of regulatory failings are present in Australia:
- Inadequate animal welfare standards were shown in three ways. Public opinion surveys show that majorities of the Australian public believe existing standards to be cruel or below their expectations; developments in other Western, developed countries (the EU, Canada, and the US) show that Australia lags behind these countries in animal welfare standards; and Australian animal welfare standards fail to meet principles established by animal welfare legislation, including the principle of proportionality.
- The prevalence of serious animal welfare incidents in the agricultural sector was demonstrated by listing the numerous incidents revealed by the media, animal advocacy organisations, and the government.
- The presence of regulatory process deficiencies was demonstrated by showing that industry interests dominate the standard setting process; that the industry has a large amount of control over animal welfare science, including the projects conducted, the scientists involved, how the research is conducted, and how the work is reported; and that government inspection regimes have been substituted by industry-run quality assurance schemes.
As such, Goodfellow concludes that the Australian animal welfare regime 'bear[s] all the hallmarks' of regulatory capture. This framework can be applied in the same way to test for the presence of regulatory capture in any country or jurisdiction.
Goodfellow (1,3) critically examined claims of regulatory capture in the general governance of animal welfare in Australia. Goodfellow provided an overview of the farm animal welfare regulatory framework in Australia. Then, Goodfellow tested whether the conditions for regulatory capture exist in that framework, using some specific indicators (discussed below). The analysis found that Australia's animal welfare regulatory framework 'bear[s] all the hallmarks of [...] regulatory capture'. The analysis showed that agriculture departments do indeed experience a conflict of interest by which the productivity and profitability of agriculture are unduly prioritised over animal welfare. The analysis also showed that the animal welfare regulatory framework is dominated by institutions with 'one particular set of values towards animals and their place in the world relative to human beings'. Goodfellow identified some specific problems with the animal welfare regulatory framework, including the overrepresentation of industry interests in developing welfare standards; industry influence over animal welfare science; and insufficient monitoring and enforcement.
A similar analysis by Ong (30) analysed regulatory capture in New Zealand. Ong drew on Goodfellow's indicators of regulatory capture and examined how they apply in New Zealand's animal welfare regime. This analysis found that New Zealand, like Australia, places the interests of the animal agriculture industry over the interests of the general public in protecting animal welfare. Ong argued that this regulatory capture results from the poor institutional design of the Ministry for Primary Industries, which in turn led to the cultural capture of regulators.
New Zealand's animal welfare regime was also the subject of the case study analysed by Duffield (31). Duffield described how animal advocacy organisations publicised footage from an independent investigation showing the cruelty and suffering experienced by young calves in the dairy industry. The Ministry for Primary Industries responded by quickly creating new regulations on the treatment and welfare of young calves. Duffield argued that the Ministry was motivated to create new regulations to protect New Zealand's reputation among the country's trade partners. However, this instrumental approach was at odds with the non-instrumental public interest in animal welfare, which is enshrined in the country's Animal Welfare Act 1999. As such, Duffield concludes that the Ministry's response was characteristic of regulatory capture.
Regulatory capture in New Zealand’s animal welfare policy is also the subject of several papers by Morris (32,33). Morris draws on government documents and meeting minutes to describe the disproportionate power of industry groups on animal welfare standards in New Zealand. They argue that the ministry is 'looking after the interests of producers, not animals'. The mechanisms that Morris describes as causing this problem are, using the terminology that we outline above, cultural capture and veiled legal threats. Morris mentions that one solution could be to create a new independent 'Ministry for Animal Welfare'.
Similarly, Dale and White (34) examine New Zealand's National Animal Welfare Advisory Committee, a quasi-independent body that is responsible for reviewing and providing advice on proposed animal welfare standards. Although this Committee is intended to ensure that the interests of animals and other non-industry interests are heard during the process of setting standards, there remain many claims that the industry nevertheless holds undue power over the process.
Other studies have provided examples of how the concept of 'capture' by the animal agriculture industry may be imagined more broadly. Carey et al. (35) examine a case study in which the Australian egg industry succeeded in maintaining its preferred, looser definition of 'free range' eggs, despite a consumer campaign seeking a more strict definition. In this sense, the egg industry succeeded in capturing the definition of a labelling term. In another study, Carey et al. (36) showed how the regulatory dynamics in the pig farming industry - including the power of retailers and the need by animal advocates to selectively focus on a single dimension of pig welfare - enabled the industry to co-opt a campaign by animal advocacy organisations against sow stalls. This enabled the 'concept of pig welfare to be corporatized in a way that maintains the dominant model of factory farmed pig meat production'.
Goodfellow (1) describes how, in the European Union (EU), the responsibility for animal welfare was moved from the Directorate-General for Agriculture to the Directorate-General for Health and Consumers. This separation of powers may help prevent regulatory capture of animal welfare policy at the EU level.
In North America, conflicts-of-interest and regulatory capture in animal welfare regulation and enforcement have been touched on by a handful of studies (37–41). Notably, Bloom (42) describes a legal case in New Jersey, New Jersey Society for the Prevention of Cruelty to Animals and ors v. New Jersey Department of Agriculture and ors (Supreme Court of New Jersey, 30 July 2008). In that case, animal protection organisations challenged the Department of Agriculture's animal welfare regulations. The court found that 'the Department did not simply engage in a subdelegation, but did so in favor of some entities that also might be described as private interests'.
1. This policy is also called an Independent Office of Animal Welfare or simply an independent animal welfare authority. In this report, we use the term Animal Protection because the objective of such an Independent Office could, in principle, establish protections for animals that go beyond their welfare. The specific name is a bit of a distraction - the structure, function, and powers of the body are the important details. We do also refer to the policy using different names when discussing specific examples or proposals.
2. One could therefore speculate that in Malta (and future jurisdictions with Independent Offices or Commissioners), building public concern for farmed animals could be a useful advocacy strategy.
3. Goodfellow argues that the scientific experts should be separated from the representatives of industry and animal advocacy organisations. This way, scientific statements can be used as the basis for political debates about values, rather than allowing scientific evidence and values to become conflated.
1. Goodfellow J. Regulatory Capture and the Welfare of Farm Animals in Australia. In: Cao D, White S, editors. Animal Law and Welfare - International Perspectives. Cham: Springer International Publishing; 2016. p. 195–235.
2. Kwak J. Cultural capture and the financial crisis. In: Carpenter D, Moss DA, editors. Preventing Regulatory Capture: Special Interest Influence and How to Limit it. Cambridge University Press; 2013.
3. Goodfellow J. Animal welfare regulation in the Australian agricultural sector: a legitimacy maximising analysis. 2015; Available from: https://www.researchonline.mq.edu.au/vital/access/services/Download/mq:45113/SOURCE1
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