Decade of Advocacy

AV magazine issue 2, 2011 2011 Issue #2 AAVS + Advocacy Making History
Sue A. Leary and Crystal Schaeffer

Later this year, the U.S. Department of Agriculture (USDA) is expected to issue draft regulations establishing minimum care standards for some captive birds. In many cases, these regulations will bring about dramatic change, with the force of the law behind them, and whether used for exhibition in zoos, breeding for the pet trade, or laboratory research, these birds will have AAVS to thank for any improvements to the care and treatment they experience. The road to regulatory inclusion has been long and difficult, but it serves as an illustration of unintended consequences making positive change.

The Animal Welfare Act (AWA) was signed into law in 1966, in response to public outcry over the shocking disclosure that pet dogs and cats were being stolen for use in experimentation. Since then, the AWA has been amended to address conditions in laboratories and to extend protection to other warm-blooded animals like guinea pigs, rabbits, primates, and others, who are also used in research, testing, and education. AWA coverage for these animals includes minimal standards of care and treatment, such as food and water access and veterinary care. Importantly, the AWA also requires researchers to consider alternatives to procedures that cause more than momentary pain or distress and that a review committee must approve documents demonstrating a researcher's good faith attempt at determining the availability of alternatives.

However, early regulations that specify how the law should be enforced excluded birds and laboratory-bred rats and mice from the legal definition of "animal." As a result, mice and rats, who now comprise as many as 95 percent of animals used in research, have never been covered by the very law that was designed to protect animals in labs from serious neglect and abuse. Although this arbitrary definition was contested in 1989, animal organizations had lacked the legal standing to prevail in court.

Losing the Popularity Contest
Everyone said, "Don't do it." Chimpanzees, dogs, horses, cats, dolphins, baby seals—they are the kinds of animals who garner public sympathy to make a campaign "winnable." Birds, rats, and mice do not score very high in the animal popularity contest.

But AAVS and our affiliate, the Alternatives Research & Development Foundation (ARDF), had just prevailed in a very worthwhile campaign to have the National Institutes of Health promote the use of in vitro methods instead of mice to generate monoclonal antibodies, a common lab product. We learned from that campaign that 1) some campaigns hinge on legal points and scientific consensus, not on public opinion; 2) AAVS members are smart! They supported the campaign—not because they are all 'mouse lovers' but because gratuitous animal suffering is inexcusable; and 3) there was a missing piece: mice were not covered under the AWA, so what basis would inspectors have to check for consideration of alternatives?

An Act for All?
ARDF and AAVS worked with the Washington legal firm Kimbrell & Mendelson on a petition to the USDA that intended to gain AWA coverage for birds, rats, and mice. AAVS called the campaign Project Animal Welfare Act: An Act for All. Later, ARDF and other plaintiffs, including a college student who worked in a lab using rats, filed a lawsuit against the agency. USDA claimed that the plaintiffs did not have standing, which is based on being able to prove that you have suffered an "injury."

ARDF and AAVS's lawyers cited a then recent legal precedent, in which a regular visitor to a roadside zoo with tragically barren conditions claimed "mental anguish" as an injury. ARDF/AAVS's co-plaintiff had also suffered mental anguish when she was forced to witness mistreatment of rats in her school's lab, and the university was not subject to AWA regulations because rats were the only "non-animals" used in its experiments.

The judge agreed that the precedent applied, and on that basis, all the plaintiffs were awarded standing on June 22, 2000, allowing ARDF and AAVS to move forward with legal action against USDA. On October 3, 2000, the USDA formally agreed to a historic settlement to extend AWA protections to birds, rats, and mice. Many experts agreed at the time that this settlement was the biggest victory for animals in over 30 years.

Outside the Court
Although surveys showed that the majority of the scientific community supported AWA protection for birds, rats, and mice, the National Association for Biomedical Research (NABR), a small but influential animal research lobby group, voiced opposition, claiming that USDA was "pandering to activists who oppose the use of lab animals." NABR claimed that AWA protection for birds, rats, and mice would hinder research and cause a financial and bureaucratic burden to laboratories using these animals. Days after the settlement, and at NABR's urging, a rider was added to an Agriculture Appropriations Bill that denied funding to execute the AAVS/USDA agreement for one year.

A Strong Alliance
In order to call more attention to this critical situation, ARDF and AAVS formed the Working Group to Preserve the Animal Welfare Act and enlisted the help of a number of other prominent animal protection organizations in an effort to pool resources and urge supporters to contact their legislators. Additionally, household product giants Proctor & Gamble and Colgate-Palmolive wrote letters in support of including birds, rats, and mice under the AWA.

ARDF and AAVS also gained a high-profile ally in former Republican Senator Bob Dole, who helped write portions of the AWA. In a March 2001 letter addressed to ARDF, Senator Dole voiced support of legal protection for birds, rats, and mice. He called efforts to prevent coverage of these animals on the grounds that it would hinder research "preposterous," and added, "when Congress stated that the AWA applied to 'all warm-blooded animals,' we certainly did not intend to exclude 95 percent of the animals used in biomedical research laboratories."

It's a Rat's Life
In February 2002, North Carolina Senator Jesse Helms introduced an eleventh hour amendment "to exclude birds, rats of the genus Rattus, and mice of the genus Mus [bred for use in research] from the definition of animal under the Animal Welfare Act" to the Senate Farm Bill, multi-billion dollar legislation outlining spending and regulations falling under the umbrella of USDA. On the Senate floor, Helms claimed that "A rodent could do a lot worse than live out its life-span in research facilities," and labeled efforts made by animal advocates as "mischief-making."

Despite a mountain of evidence and support from scientists and advocates alike, on May 13, 2002, the Farm Bill containing the Helm's amendment excluding birds, rats of the genus Rattus, and mice of the genus Mus, bred for research, was signed into law. It was a devastating loss.

Saving Grace
Because the Helms amendment did not exactly mirror the previous regulatory exclusion, birds, rats, and mice not bred for research did gain legal protection under the AWA. The Working Group reconvened and expanded to present a united front of 27 animal protection organizations that signed off on comments to the USDA regarding writing the new regulations for these animals, especially birds, which brings us full circle.

In the future, AAVS and ARDF and our supporters will surely see the reversal of the Helms amendment, which was not a science based decision but a political one. It is past time to truly make the Animal Welfare Act an Act for All!

Read more from this issue of the AV Magazine
Ending the Use of Animals in Science