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December 18, 2020

Environmental, Natural Resources, & Energy Law Blog

Can Veganism be Legislated? - Nicole Brugato

In January 2020, a landmark decision vaulted veganism to a new level, as a protected class comparable to religion. Jordi Casamitjana, an ethical vegan, was fired from his position with the League Against Cruel Sports after he raised concerns that his pension fund was being invested in animal testing. A European Union Tribunal found in favor of Mr. Casamitjana when it held ethical veganism satisfied the test required to be a philosophical belief protected under the Equality Act of 2010.1 Although this historic designation does not establish any precedent in the United States, it may cause some to stop and think about the possibilities, particularly as social inclusion2 and diversity become a common fixtures in mainstream societal conversation. The EU Tribunal decided the Casamitjana case citing the protections afforded in the work place by The Equality Act of 2010, which at the time of its passage focused on prohibiting discrimination based on sex, race, or disability. In 2019, the United States Congress introduced The Equality Act, citing the same anti-discrimination principles of the EU legislation to prohibit discrimination based on gender identity in the work place. Although the Casamitjana question has not been raised in America’s highest Court, the growing number of vegans does not put it out of the realm of possibility.3 This leaves me wondering, can veganism be legislated? This paper looks at the impact of similar consideration in the United States and how the future of veganism as well as the prospects of laws supporting vegans will require the merger of philosophical, economical and societal concepts.

 

The UK’s Equality Act provides that to be covered the belief must be genuinely held, not simply an opinion; be a belief as to a substantial aspect of human life and behavior; attain a level of cogency and importance; and be worthy of respect in a democratic society compatible with human dignity and not in conflict with the fundamental rights of others.4 In holding for Mr. Casamitjana, the tribunal held that his veganism was a philosophical and religious belief protected by anti-discrimination laws. Since 1958, the United States has banned slaughter without first stunning the animal except in the instances of Jewish (shechita) or Muslim (dhabihah) ritual slaughter.5 When I first considered writing about legislating veganism, I was excited by the finding for Casamitjana, but considering the same religious freedoms should be and are extended to Jewish and Muslims through the acceptance of live, un-stunned slaughter of animals, I realized it’s not as black and white as calling it religion and suddenly animals and vegans are ‘protected’. I think, however, this discussion would be remiss without reflecting briefly on protections afforded to vegans and veganism as a significantly held belief. In fact, religion is only loosely defined in the United States, and the courts have long wrestled with the its definition and the subsequent protections for decades and to date there are no instances of a United States court being asked to considered the constitutionality of veganism as a non-traditional belief protected by the First Amendment Freedom of Religion.

 

To vaccinate or not to vaccinate, a question that causes heated discussions, confusion, and worry and on a least a few occasions has afforded veganism some days in court as it falls under Title VII of the The Civil Rights Act of 1964. Vaccines often contain animal by-products but under Title VII, persons can claim religious accommodations. In 2002, Jerold Friedman sued after his employment offer was withdrawn when he refused to be vaccinated for the mumps on the grounds it “would violate his system of beliefs and would be considered immoral by him”. The California Court of Appeals disagreed with Friedman holding, “plaintiff alleges a moral and ethical creed limited to the single subject of highly valuing animal life,” and “it reflects a moral and secular, rather than religious, philosophy”.6 Ten years later, the Southern District of Ohio found “it plausible that Plaintiff could subscribe to veganism with a sincerity equating that of traditional religious view,” in denying a motion to dismiss.7 Whether secular or religious may be depend on where the plaintiff lives the incoming Congress could reconsider The Equality Act, which could lead to protections in the form of accommodations being extended under Title VII. The U.S. Supreme Court has previously extended protections, despite a firm definition of religion, suggesting conscientious objectors could be denied religious exemption only if their “beliefs are not deeply held and those whose objection to war does not rest at all upon moral, ethical, or religious principle but instead rests solely upon consideration of policy, pragmatism, or expediency”.8

Ultimately, vegans may have to be content to be ‘accommodated’. In Burwell v. Hobby Lobby, Inc., the Supreme Court held that the Religious Freedom Restoration Act of 1993 permits for-profit corporations that are closely held to refuse to pay for legally mandatory coverage on the grounds of the owner’s religious belief.9 Indeed if Mr. Casamijana’s case were to come before the United States Supreme Court, he may be told to get his own pension plan if he doesn’t like what is provided. In a 2019 survey conducted of vegans in Britain, 45 percent claimed to feel discriminated against in the workplace because of the vegan ideals, while 96% said they were only provided with leather furniture. Eighteen percent of British employers offer vegan meal options but 33 percent of the employers surveyed said they do no accommodate vegans because it is too “costly and difficult.”10 Considering the average American consumes almost two times the amount as the average UK citizen, the statistics in the United States may be worse. Personally, I have been told that my own veganism is “not natural”, “wrong”, “weird”, “stupid” and the insults go on.

There is a book series I enjoy reading which is set 25 years in the future. In it, food is character because real meat, dairy products, chocolate, and coffee are a luxury. The majority of people eat a solely plant-based diet. Even the super wealthy only eat meat occasionally following a practice of ‘meat-full’ Mondays. Veganism is the norm not for ethical reasons, but following climate disaster exacerbated by a second civil war and a crashed economy. It’s not a picture of the dystopic gloom seen in other novels and movies, but it is eerily similar to what we see in the United States and the world if humans continue to follow the current path. Under the Agricultural Adjustment Act (AAA) of 1933, the government bought animals for slaughter to reduce surplus and as recently as December 3, 2020, under the AAA, the Department of Agriculture agreed to buy more than 250 million pounds of bison to reduce surplus and financial stress. Although the government has subsidized farmers and ranchers as part of the AAA, in a way the AAA has come full circle as what started as a means of helping the meat movement may lead to the cessation of the meat industry.

 

Beginning with the AAA to the Farm System Reform Act of 2019, conservationism, agricultural and plant-based innovations, social awareness, health concerns, and climate change are shaping different options for the future of the meat industry and meat eaters. From necessity to discretionary choices, meat production is changing as is the human need to consume meat. As meat consumption changes so do the philosophies relating to meat, so it is not outside the realm of possibility to believe a court in the United States will consider the inclusion of veganism as a protected philosophical belief. The surrealness of 2020 rings similar to the state of U.S. in 1933; a polarized society, a faltering agricultural industry, and an unstable economy, topped by a global pandemic that may be linked to climate change, came from animals, and has wreaked havoc on the meat industry in the U.S.

 

The Agricultural Adjustment Act was passed to aid struggling farmers by reducing agricultural surplus to drive up prices, and it established laws to regulate marketing and create licensing requirements for processors and others handling agricultural commodities to eliminate unfair practices. It was originally thought the AAA was a necessary but temporary fix to strengthen and re-stabilize American farming. In its first few years, the AAA was much criticized and ultimately it was struck down as the Supreme Court held Congress overstepped in its taxing authority when it placed taxes on processors in order to pay farmer production subsidies.11 Nevertheless, a second version of the AAA passed in 1938, establishing a more permanent role of the federal government, giving new power and influence to processors and industrial farms as the United States entered World War II, and effectively ushering in a new era of meat politics.

 

Many meat companies, from farmers to meat processors, are represented by meat lobbying and trade organizations, including the National Cattlemen’s Beef Association and the American Meat Institute. These organization grew in power as the USDA was frequently led by meat industry professionals and individuals sympathetic to the meat industry, thus giving the meat industry strong representation in Washington. Serving as the administrator of USDA Food Safety and Inspection Service during the Clinton Administration, Michael Taylor summed up the relationship between the USDA and the meat industry when he noted the USDA looked at the meat industry “as the customer rather than the consumer, and thinking in terms of efficient inspection rather than protecting public health.”12 Indeed the meat industry has been successful at working with legislators to block the Meat and Poultry Pathogen Reduction Act of 2002 and the Farm System Reform Act of 2019. They’ve been clear in their arguments that taxing meat won’t save animals but it will destroy communities and cause families to go hungry and continues to be instrumental in directing labeling regulations of plant-based proteins.

In 2018, a spokesperson for the U.S. Cattlemen’s Association said, “While at this time alternative protein sources are not a direct threat to the beef industry, we do see improper labeling of these products as misleading.”13 Interesting, one year later a headline read ‘Record $824 million invested in alternative protein companies in 2019, $930 million already invested in Q1 2020’.14 In that same time, sales of plant-based protein increased by more than 23 percent. What a difference a year makes and the economic picture is likely to continue shifting more favorably toward plant-based alternatives as concerns about animal welfare, personal health, and the environment grow.

The meat industry continues to be hit hard by the Covid-19 pandemic as social distancing is near impossible in the factories, not to mention that many working in the industry are low-income, living in multi-family situations. Additionally, meat processing can be strenuous resulting in deeper, heavier breathing and combined with uncirculated air to maintain cool temperatures, it is not surprising that at least 1000 employees, of 2800, at a Tyson’s plant in Waterloo, Iowa tested positive as of November, 2020.15 The negative impact of Covid-19 on the meat industry resulted in closed plants, livestock surpluses and have caused consumers to question the industry about pathogens in meat as well as safety protocols.

Packaging lawsuits across the U.S. courts continue to find in favor of freedom of speech, shutting down claims that using words like sausage, burger, or roast in conjunction with appropriate language identifying products as plant-based, vegetarian, and vegan-friendly are confusing to consumers. Arkansas introduced a law issuing a $1000 fine against plant-based protein manufacturers for every instance in which packaging included words like sausage, burger, or roast. Manufacturers immediately filed suit and within six months, won cases in Missouri and Arkansas with Judge Kristine Baker holding Arkansas failed to show the significance of the harm it sought to remedy, stating “arguments regarding Tofurkys’ failure to remove its products from Arkansas stores, change its marketing practices, or change its labeling practices fall flat.”16 However, neither the USDA nor the Federal Drug Administration (FDA) define vegan, vegetarian, or plant-based. The European Vegetarian Union has lobbied the EU to set definitions of vegetarian and vegan food since 2008 and for a moment in 2017, the European Regulation on Food Information to Consumers seriously considered defining the words, noting it necessary for the establishment of labeling related to suitability of food for vegans and vegetarians as well as proper function of single market foodstuffs and consumer choice.17 Unfortunately, the definitions remain to be established.

In the United States, lab-grown (clean-meat) have also asked for regulatory oversight. This has been of particularly importance for clean-meat as the U.S. industry must be able to compete with foreign clean-meat producers as well as the American meat industry. Clean-meat is described by the FDA as food produced using animal cell technology but the industry has long argued it should be treated similarly to meat to ensure consumer confidence in its products and to allow for fair market competition. Clean-meat advocates argued that if consumers don’t believe the cell-based meat is safe, regulated, and healthy they will stay with slaughtered meat. Still others focus on the impacts clean-meat can have on some of the biggest global challenges; climate change, hunger, animal cruelty, and reducing the use of antibiotics and hormones in kept animals.18 Since the signing of a ‘formal agreement’ between the USDA and the FDA about how to treat clean-meat products in March 2019, Singapore became the first country/state to allow the import and commercial sale of manufactured chicken meat from California based company EatJust.19 This is big news for the clean-meat industry as Singapore is seen a trend-setter and there are hopes within the U.S. that as interest grows and commercial sales increase, the USDA will look to update the Federal Meat Inspection Act, which has not been updated since 1906.

The clean-meat industry is poised to help slow climate change and may be used as a catalyst to promote plant-based alternatives as consumers become more accepting of ‘not real’ and societal consciousness is raised. What is important to note about cell-based meat, although it is animal not plant-based, is the impact it could have on the environmental and industrial farming. It is estimated that if weighed together all the humans on earth would total 300 million tons while farmed animals would weigh in excess of 700 million tons. Additionally, there are more chickens in Europe than all wild birds combined. The amount of land that could be recaptured for more sustainable uses combined with fact that clean-meat does not produce methane is huge. Farming is responsible for at least 25 percent of the greenhouse gas emissions.20 Even sustainable farming cannot compete with the climate benefits that come current and future alternatives.

It is interesting to hear scientist working in the agricultural industry discuss climate change. The fully recognize the impact of greenhouse gases while dismissing agricultural emission and the fact that farming is responsible for the destruction of 46-58 thousand square miles of forest each year, and that is equal to 48 football fields each minute.21 Considering the alternative for many meat eaters is to switch to grass-fed beef and free-range chicken to calm their own conscience, the amount of land that is necessary to accommodate these cruelty-free, sustainable practices is extraordinary. Erik and Doniga Markegard raise grass-fed beef, producing 80,000 pounds of consumable meat (beef, chicken, and pork) on 4500 acres annually. That is enough to feed 382 Americans, consuming about 200 pounds of meat each year. When asked how they felt about the destruction of the Amazon for purposes of growing beef, the couple said without hesitation, “if their environment wasn’t designed to raise beef, then they shouldn’t be eating beef.” Sadly, they did not recognize the environment in which they raise beef is not designed to raise beef. Breaking it down, there are 314 million Americans and the Markegards use 11.7 acre for each of the 382 people they feed. To feed the entire U.S. population it would take 3.7 million acres to raise enough meat to feed the population. There are approximately 1.9 million acres in the lower 48 United States – 1.8 million less than what is needed to sustain the American meat diet for one year.22 Farming, like the Markegards, may appear to reduce animal cruelty and even make meat a healthier option for human consumption, but when faced with the facts, veganism pops up as the only long-term viable solution to animal and human survival.

The idea of whether or not to ban meat completely may sound like the way to go, but “there is not a single magic bullet”.23 The bottom-line, up-front question, can veganism be legislated is far from being answered. Anti-discrimination laws can extend protections to vegans in the workplace, providing exceptions to vaccines, pension plan investments, vegan lunch options in cafeterias, and faux-leather furniture. Since the early 2000s, countries have taken steps to enact resolutions and launch campaigns to promote Meatless Mondays and Vegetarian Days. The Argentinian and Croatian governments serve only vegan options on Mondays to all government employees. Ghent, Belgium was the first city to declare a meat free day: ‘Dongerdag Veggiedag’ which is funded in part by the Flemish government. San Francisco followed Ghent’s lead promoting one meatless day each week. The Los Angeles City Council introduced a motion that would require public venues, including sports stadiums, entertainment venues, zoos, and movie theaters to offer at least one vegan entrée but have for the time being asked for voluntary participation.

What I have learned through this, is the need to look beyond religion, discrimination, animal cruelty, and climate change but also to consider all of these aspects as part of the whole. I believe that veganism will one day be legislated but first we must ensure we fully understand all of the pieces. To some extent farming must continue, cruelty free and without negatively impacting the environment. The earth cannot sustain human desire for real meat. Religion and anti-discrimination laws can provide protections for vegans, but until we change the mindset that veganism is not simply a lifestyle choice but a philosophical belief, vegans will be faced with sitting on leather chairs, eating the salad, taking the vaccine, or not thinking about where their pensions are invested. For now, though, vegans must continue to pick at the scab of the meat industry until it is no more. Buy tofurkey, ask local restaurants to offer vegan entrees, let people know it’s not a dietary choice it is a belief. We may not be able to legislate veganism but we can legislate vegan ideals.

 

  1. Jordi Casamitjana v LACS, January 3, 2020
  2. Basaninyenzi, Uwi, The World Bank, “Social inclusion is the process of improving the terms on which individuals and groups take part in society – improving ability, opportunity, and dignity of those disadvantaged on the basis of their identity”.
  3. Forgrieve, Janet, November 2, 2018, The Growing Acceptance of Veganism, “The number of U.S. consumers identifying as vegan grew from 1% to 6% between 2014 and 2017, a 600% increase”.
  4. UK Public General Acts, 2010 Chapter 15
  5. The Humane Slaughter Act or the Humane Methods of Livestock Slaughter Act (P.L. 85-765; 7 U.S.C. 1901 et seq.)
  6. Friedman v. Southern California Permanente Medical Group, (Cal. Ct. App., 2002)
  7. Chenzira v. Cincinnati Children’s Hosp. Med. Ctr, (S.D. Ohio 2012)
  8. Welsh v. United States, 398 U.S. 333 (1970) expanding on United States v. Seeger, 380 U.S. 163 (1965)
  9. Burwell v. Hobby Lobby, Inc., 573 U.S. 682 (2014)
  10. Chiorando, Maria, May 9, 2019, 45% of Vegans Feel Discriminated Against at Work, Study Says.
  11. United States v. Butler, 297 U.S. 1 (1936), Congress cannot use its taxing power to control activity that was within the complete authority of the states.
  12. Johnson, Steven, The Politics of Meat (2002)
  13. Urbi, Jaden, February 23, 2018, updated July 13, 2018, The fight against ‘fake meat’ has officially begun. Lia Biodon, U.S. Cattlemen’s Association policy and outreach director, “While at this time alternative protein sources are not a direct threat to the beef industry, we do see improper labeling of these products as misleading. Our goal is to head off the problem before it becomes a larger issue.”
  14. Ball, Matt, May 13, 2020, Record $824 million invested in alternative protein companies in 2019, $930 million already invested in Q1 2020.
  15. Gibson, Kate, December 2, 2020, Tyson allegedly lied about Covid-19 risks at Iowa meat plant.
  16. TurtleIsland Foods v. Soman, (U.S. District Court, Eastern District of Arkansas, December 11, 2019). Turtle Island Food v. Richardson, (U.S. District Court, Wester District of Missouri, September 30, 2019)
  17. Niamh, Michail, November 3, 2017, EU to set definitions of vegetarian and vegan food.
  18. Piper, Kelsey, March 9, 2019, The lab-grown meat industry just got the regulatory oversight it’s been begging for.
  19. Hannan, Dan, December 7, 2020, ‘Clean-meat’ and technological transformation are on their way.
  20. Hersher, Rebecca and Aubrey, Allison, August 8, 2019, To Slow Global Warming, U.N. Warns Agriculture Must Change.
  21. Green & Growing, Deforestation Its Impact and How We Can Change It.
  22. Anderson, Kip and Kuhn, Keegan, June 26, 2014,
  23. Saner, Ermine, September 23, 2019, Should meat be banned to save the planet?, “There is not a single magic bullet. You could think about changing agricultural subsidies, trade laws, changing what is eaten in hospitals and schools to train people to eat differently. You can think labelling and education, and carbon taxes. All of those have a role but none by themselves will solve the issue, and the idea of saying we’re going to make meat illegal becomes somewhat farcical,” Tim Benton, Professor of Population Ecology, University of Leeds.