Q&A: Former LEAP Student Fellow Brooke Dekolf ’21 Combats Humanewashing

Brooke Dekolf ’21 is a Yale Law School graduate and former student fellow with the Law, Environment & Animals Program (LEAP) at Yale Law School. During law school, Dekolf worked as an intern at Legal Services of New Jersey and the American Civil Liberties Union Reproductive Freedom Project. As an inaugural LEAP Student Fellow, she researched the connection between fish-specific exemptions to state anti-cruelty legislation and the economic importance of the aquaculture sector in those states with such exemptions. She was also a participant in the first Climate, Animal, Food, and Environmental (CAFE) Law and Policy Lab, where her team drafted model food procurement legislation.

After law school, Dekolf worked as an Animal Welfare Fellow at Richman Law & Policy where she practiced consumer protection law, false advertising law, and complex civil litigation challenging "humanewashing" claims made by the animal agriculture industry, with an emphasis on accountability in aquaculture systems and fish welfare. Dekolf continues to publish about these issues, including a recent piece in Natural Resources & Environment magazine, “How Greenwashing and Humanewashing in Our Food Systems Perpetuate Environmental Injustices.” 

Here, Dekolf discusses humanewashing in both terrestrial and aquatic animal farming and legal strategies for combatting these practices.

What are greenwashing and humanewashing? How do these practices impact the environment, humans, and other animals?

An expanding body of consumer perception research shows that modern consumers are increasingly concerned with the humane treatment of farmed animals raised for human consumption and that those same consumers will often seek out, pay a premium for, or buy more of products that promise to minimize harm to farmed animals. In theory, this trend in consumer purchasing patterns — that consumers are choosing to purchase certain products that meet their ethical concerns around animal welfare while also avoiding products that fall below those standards — should mean that market pressure will force the animal agriculture industry to move toward practices that support the most humane stewardship of farmed animals. 

But while the industry is well aware that consumers are seeking to leverage their preferential purchasing power to support products that minimize harm to farmed animals, the industry also knows that the average consumer has little to no actual ability to evaluate the truth of such marketing claims themselves. Most people, for example, will never tour the inside of the dairy to see how the cows who produce the milk they consume are treated or meet the chickens whose eggs they purchase. Most people, also, are not able to trace back the gallon of milk they buy in the grocery store to the distribution center, and from there follow the “milk trucks” back to the dairy where the cows who produced the milk are confined, and once there, somehow access private property to evaluate whether the treatment of those cows in fact comports with the milk’s marketing. And it is infinitely cheaper for the animal agriculture industry to carry on business as usual than it is for the industry to actually implement practices that support farmed animal welfare. As the National Pork Producers Council stated, implementing improved welfare measures, like banning the use of gestation crates (stalls designed to house pregnant pigs, which are so small the pig is unable to turn around) for pigs creates big problems, namely increasing operating costs and “creating future business uncertainty.” 

The confluence of these factors — a rise in consumer interest in “humanely” treated farmed animals, an often unbridgeable consumer information gap, and industry's unwillingness to sacrifice profit maximization — incentivizes dishonesty, which, ultimately, gives rise to “humanewashing.” Humanewashashing refers to efforts to market products made from or by farmed animals to conscientious consumers through deceptive labeling and advertising, such that the products’ advertising, either directly or by implication, promotes the illusion of animal well-being or humane treatment while concealing the material reality of those animals' actual suffering and exploitation. An egg producer may, for example, claim that its eggs are laid by “free-roaming” hens, obscuring the fact that while those hens are not technically kept in cages, they will never go outside, will never see sunlight, and are allocated the same space (about the size of a standard sheet of printer paper) as their caged counterparts.

The prevalence of humanewashing eliminates consumer choice because consumers can never really trust the labels or marketing they see in the grocery store, but those same consumers have no realistic option other than to trust that marketing. And humanewashing obscures the industry's detrimental impacts on public health, farmed animals, and the environment. Humanewashing quells outrage over the actual conditions most farmed animals live in and prevents the kind of community action that might otherwise force the industry to adopt better animal care practices in the face of immense public pressure or a significant loss of market share. 

You’ve been particularly focused on humanewashing in aquaculture. How does humanewashing manifest in this industry? Are there unique harms associated with humanewashing and treatment of farmed aquatic animals?

Animal advocates have spent decades combating misinformation and raising awareness over farmed land animal exploitation. In fact, much of the advocacy for improved conditions in land-based animal farming systems has become a matter of significant legal interest, like the extreme confinement of pigs at issue in litigation surrounding California's Proposition 12. Compared to land-based animal agriculture operations, the rise of water-based systems designed to farm aquatic animals, including fishes, en masse, or “aquaculture,” is a relatively recent phenomenon. The relative recency of aquaculture, along with the “alien” nature of most aquatic species, means that farmed aquatic animals are often invisible — ignored by both advocates who see challenging land-based systems as more impactful and ignored by the general consuming public which is unable to empathize with species that, in the most literal sense, do not even share the same habitats or breathe the same air we do. Thus, humanewashing often manifests in the aquaculture industry with both more frequency and to significantly lesser opposition. 

Humanewashing quells outrage over the actual conditions most farmed animals live in and prevents the kind of community action that might otherwise force the industry to adopt better animal care practices.”

—Brooke Dekolf ’21

But the harms associated with aquatic animal farming are nearly indistinguishable from those associated with land-based animal agriculture. Aquatic species spend their lives densely confined in incredibly small tanks, nets, or ponds, just like their land-based counterparts do in barns, crates, sheds, or cages. Aquatic species are deprived of any sort of environmental enrichment that would allow them to express their natural, species-specific behaviors, just as their land-based counterparts are deprived. Aquatic species are subject to such high levels of stress and boredom that they often exhibit stereotypic behaviors, aggression, and self-mutilation, just like farmed cows or chickens. Farmed aquatic animals are particularly susceptible to disease outbreaks because they spend their lives in conditions of intense confinement, just like, say, farmed chickens and bird flu. Pollution, biocides, and antibiotics — which are routinely used to combat disease outbreaks in such systems — spread through natural waterways with devastating impacts on aquatic ecosystems, the same way runoff from land-based animal agriculture can pollute local environments, leeching into soil or water bodies. And the nonjudicious and frequent overuse of antibiotics in such aquatic systems threatens public health by contributing to human antibiotic resistance.

That said, the number of aquatic animals farmed each year is truly mind boggling. Estimates suggest that somewhere between 78 to 171 billion farmed fishes are slaughtered annually, more than both farmed birds and mammals combined. Even the most incremental of welfare improvements could potentially impact billions of individuals. 

What avenues exist to hold companies who engage in humanewashing accountable? 

Most of the farmed animal husbandry claims that producers make on animal product packaging have no set legal definition and are not reviewed for accuracy by any independent third-party or governmental entity. Producers themselves make up their own definitions for such marketing claims and consumers are simply left to guess how that particular company defined that particular term. Even in the narrow circumstances where animal care claims are subject to mandatory federal oversight by the USDA Food Safety and Inspection Service (FSIS) — as is the case pursuant to the Poultry Products Inspection Act and Federal Meat Inspection Act, but, importantly, only for meat products for which animal-raising claims are made directly on product packaging — FSIS does not appear to be adequately reviewing those claims to ensure accuracy. Animal Welfare Institute (AWI) requested information on label pre-approval applications through the Freedom of Information Act for 97 “humane”-style claims. AWI found that for 48 of those claims, USDA-FSIS had no label pre-approval application on file at all, and for 34 claims that did have an application on file with the agency, that application contained either no or insufficient substantiation to justify a “humane” claim on product packaging. There is significant room for improvement here on the regulatory front both in broadening the scope of which claims should be subject to mandatory regulatory oversight and in requiring that USDA-FSIS actually review the claims before it.

What advice, if any, do you have for current law students interested in pursuing a career in animal advocacy?

Farmed animal advocacy is particularly tricky. Many of the traditional litigation strategies used by other parallel social justice movements have been foreclosed in the face of industry pressure or those strategies are simply not applicable to farmed animals, who lack standing. That means farmed animal attorneys are often actually practicing “farmed animal law plus,” so “animal law plus securities law,” or “animal law plus environmental law,” or, as was the case for me, “animal law plus consumer protection law.” For that reason, I am always hesitant to suggest that current students interested in pursuing a career in farmed animal advocacy take any particular coursework. Instead, their time is much better spent developing skills that are conducive to litigation strategy more broadly, and particularly, skills that emphasize creative and novel applications of other fields of law.