The Animal Welfare Act Has Nothing to Do With Animal Welfare

The Rise for Animals Team, March 28, 2024

In continued observance of Harvard Animal Law Week and consideration of our pending lawsuits against the federal government, we are reflecting on the only federal law addressing the “welfare” of animals used for research: the Animal Welfare Act.  

Largely a shell law that caters to industry, the Animal Welfare Act (“AWA”) has never prioritized or protected the welfare of other-than-human animals in labs.

The animal research industry (pathologically) points to the AWA in asserting that animals subjected to research are well cared for and have their interests considered. Though not more dishonest than the industry’s other, self-serving and disingenuous claims, this one is particularly troubling for our movement because it serves to assuage concerns among humans otherwise interested in animal protection – who stop short of investigating what is meant by “welfare”, of considering whether exploitation or abuse can really be undertaken “humanely”, in favor of taking the word of professionals who claim falsely to share their concerns.

In truth, then, the AWA’s power lends itself not to the animals but to industry, and lies not in what it is but in what the animal research industry can convince us it represents. 

The truth is this:

‣ The AWA applies to less than 1% of the other-than-human animals used for research in the U.S.

In passing the AWA, Congress left the definition of “animal” to the discretion of the USDA, which defined the term to include “warm-blooded” animals except rats, mice, and birds bred for research. Then, faced with a lawsuit challenging the USDA’s definition, Congress acted in appeasement of the biomedical research lobby by amending the AWA to expressly exclude rats, mice, and birds bred for research. 

Today, it is estimated that 111,500,000 rats and mice are exploited in the name of science each year, and that these sentient beings represent more than 99% of all animals so exploited. This means that, at best, the AWA is applicable to less than 1% of animals used for research.

Animals used for research but outside the scope of the AWA enjoy no legal protections of any kind: “scientists can legally do whatever they want to them” – whenever they want, however they want, for any reason they want, and without any record.

(The AWA also excludes farmed animals used for agricultural research, in addition to all cold-blooded and aquatic animals.)

‣ Even to those few animals to whom the AWA applies, the AWA does not prohibit a single type of harm.

Not only does the AWA expressly contemplate only minimal welfare protections, but, for those less than 1% of animals who do fall within the AWA’s definition of “animal” and who are not excepted from coverage, the AWA’s “welfare” provisions apply only in the absence of a “scientific” objection. 

That’s right: scientists can get around any, every, and all “welfare” protection(s) by claiming that it/they would not be in the best interests of their research. Moreover, by merely claiming it “necessary” for their work, researchers can escape even the most minimal welfare requirements, including the management of severe pain and the provision of food and water. 

‣ The AWA is not intended, and cannot be used, to regulate scientific research.

Congress passed the AWA in response to tremendous public outcry over the selling of dogs to laboratories, and, in doing so, sought to both pacify those concerned with animal welfare and placate the animal research industry, which lobbied staunchly against any regulation. So, while claiming concern with the “humane” treatment of research subjects, Congress intentionally left researchers to operate independently: the AWA makes clear that the USDA may not regulate research – that it may not “promulgate regulations, or enforce the AWA in ways that affect research design or conflict with researchers’ fulfillment of the objectives of their research”. 

It follows that, as also demonstrated above, there is no attempt by the AWA to balance welfare and scientific interests; rather, all welfare considerations are wholly and completely secondary (indeed, subservient) to any scientific considerations. 

‣ The AWA emphasizes and heavily relies on animal research industry self-regulation.

Despite mandating annual USDA inspections of animal research facilities (which, by the way, are not taking place), the AWA asked animal research facilities to establish internal committees to address animal welfare. These Institutional Animal Care and Use Committees (“IACUCs”) are tasked with reviewing the facilities’ animal-based research projects to ensure compliance with the AWA – nothing more. And, in fact, IACUCs are prohibited from regulating research, which is to say that they may not even consider research projects’ scientific merits or consider researchers’ science. (This is another stark example of how the AWA was crafted to maintain researchers’ interests as paramount.) 

Even aside from the science itself, IACUCs may not consider the ethics of using animals for any particular scientific purpose. This point is critical, because IACUCs are very often falsely described as “ethics committees”, when, in truth, ethics in no way inform their operations – they are administrative bodies tasked with checking legal boxes.

Effectively, then, IACUCs decide – in consideration of law vis-a-vis the AWA – “how much pain may be inflicted in experiments” . . . and, IACUCs have resoundingly decided “any amount”.  Indeed, IACUCs – whose members are appointed by the research facilities’ CEOs – (unsurprisingly) approve more than 98% of the research projects they review. 

IACUCs are also structured to shield animal research institutions’ animal welfare violations from public view. Pursuant to the AWA, IACUCs must only notify the USDA of “uncorrected” violations of law, researchers being given chances to correct violations before they are reported to the USDA. This means that any public records we uncover with regard to AWA violations document only those violations that a research facility self-reported or that the USDA happened to directly observe during one of its triennial, limited-scope visits; they do not represent anything close to the only breaches of applicable animal welfare regulations.  

‣ The AWA prevents state anti-cruelty laws from applying to animals in labs.

Inside laboratories, other-than-human animals are subjected – every second of every day – to pain and suffering that would be illegal outside of the laboratory. Yet, not only does the AWA allow for these actions, it both fails to include any criminal provisions applicable to scientific research and has been interpreted to preempt state laws – the latter meaning that state animal cruelty laws are not considered applicable to research activities covered by the AWA. The result? You can commit otherwise-illegal animal cruelty for a living if you’re employed by a registered animal research facility. 

The AWA does not ensure animal welfare and, by virtue of its deference to human interests, never could have. 

The truth is that animals in laboratories do not enjoy any meaningful legal protections under the AWA.

But, perhaps, even more problematically, it is not even clear that the welfare of animals in labs could be meaningfully protected by any iteration of the AWA – to wit, how would it really be “possible to advocate [for] animal welfare and at the same time give animals untested drugs or diseases, or slice them open to test a new surgical procedure”? 

We do not believe it possible, and this is just one reason we are champions of the animal research industry’s abolition (rather than its regulation) and of animal rights (rather than merely animal welfare). 

Join us in educating our communities about the truth of the AWA and help to change the legal conversation from welfare to rights. Please share this article on Facebook or X (Twitter) now. 

Harvard’s Animal Law & Policy Clinic is representing Rise for Animals in two lawsuits against the USDA for its failings to properly implement even the most lacking, existing protections of the AWA.

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