Who to Call Chicken? Georgetown International Environmental Law Review

Corey Kestenberg - Chicken

Who to Call Chicken?

by Corey Kestenberg, Staff Contributor

It’s widely accepted that Americans’ heavy use of antibiotics has led to antibiotic resistance. From prescriptions to food, antibiotics permeate our lifestyle. However, some chicken producers have attempted to alleviate this issue by reducing their use of preventive antibiotics in their livestock. Regulators may be forced to step in as well, pending a Second Circuit decision.

Since the 1940’s, when penicillin was introduced on the US market, physicians have prescribed antibiotics to cure patients with known or probable bacterial infections. Despite the research community’s discovery, study, and manufacture of additional antibiotics, Americans’ heavy use of antibiotics has led to antibiotic resistance – the point where previously effective antibiotics no longer fight their target bacteria. Researchers claim that another cause of this resistance is the U.S. practice of feeding antibiotics to livestock who have no known bacterial infection, in order to prevent the animals from becoming ill and in order for animals to gain weight faster during their preparation for market.

“Researchers claim that another cause of [antibiotic] resistance is the U.S. practice of feeding antibiotics to livestock who have no known bacterial infection…”

When antibiotics are introduced into farm animals, they are also introduced into our environment. Although evidence on the specific affects of antibiotics on the environment is inconclusive, researchers have developed hypotheses and gathered some research on possible environmental effects. Researchers in Europe have found the antibiotic erythromycin to be very toxic to cyanobacteria and algae, two species that are key to maintaining healthy aquatic ecosystems. General research in the U.S. has noted antibiotics in groundwater and soil; researchers are studying the factors that contribute to antibiotics’ ability to move and break down in the environment, including exposure to sunlight and minerals.

Whereas in the past companies have used the uncertainty surrounding the effects of antibiotics to avoid changing their antibiotic use practices, recently there have been signs of change. Perdue, the third largest U.S. chicken producer, announced at the beginning of September that over the past 10 years the company has largely eliminated preventative antibiotic use in its livestock. This includes ceasing the process of injecting chicken eggs with antibiotics before hatching. At the beginning of October, Tyson, another poultry giant, announced it was following Perdue’s footsteps and would stop antibiotic use in its hatcheries. With large processors changing their practices, activists can hope that normative practices will change.

Change induced by societal pressures may be necessary if the FDA will not force the abatement of antibiotic use in livestock through regulation. On July 24, 2014, the Court of Appeals for the Second Circuit reversed the district court decision that said the FDA “is required by [statute] to proceed with hearings to determine whether to withdraw approval for the use of penicillin and tetracyclines in animal feed.” After a lengthy statutory interpretation analysis, the Second Circuit concluded that concerns about a drug’s safety do not require the FDA to hold a hearing. The FDA must hold a hearing after it makes a final determination that a drug is unsafe and before it withdraws its approval from the drug. But, if no final determination, then no hearing is required; the FDA gets to decide when to make the final determination – it cannot be forced.

“The Second Circuit concluded that concerns about a drug’s safety do not require the FDA to hold a hearing […] the FDA gets to decide when to make the final determination – it cannot be forced.”

In a legal environment where regulatory bodies can take their time in deciding what move to make concerning the preventative use of antibiotics in livestock, we may find that those with the most chickens are the least chicken to remove antibiotic use from their practices.

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