Support for Temporary Prohibition on Live Animal Markets

REPORT

REPORT ON LEGISLATION BY THE ANIMAL LAW COMMITTEE

A.959 (M. of A. L. Rosenthal)
S.4311 (Sen. L. Sepulveda)

AN ACT to amend the agriculture and markets law, in relation to prohibiting the operation of establishments where animals and/or fowls are slaughtered and butchered for food.

THIS LEGISLATION IS APPROVED

I. SUMMARY OF THE PROPOSED LAW

Assembly Bill A.959 and Senate Bill S.4311[1] would amend the agriculture and markets law to temporarily prohibit the operation of live markets. This bill would place a moratorium on the operation of live markets in New York State limited to live poultry and small animal slaughterhouses that are open to the public. It would also establish a task force to examine the public health risks and animal welfare concerns presented by operating live markets.

II. ARGUMENT SUMMARY

The COVID-19 pandemic forced our collective efforts, both private and governmental, to further understand zoonotic disease and the origins of the COVID-19 (SARS-CoV-2) outbreak quickly, although there already were numerous historical examples of the threat to humans posed by zoonotic disease. Due to global efforts by experts to address the COVID-19 pandemic, a wealth of information has come to light about the transmission of zoonotic disease, making it clear that we must take immediate measures to prevent future outbreaks of zoonotic disease by restricting live markets in New York State. This report provides multiple rationales for this position, as follows: 1) live markets are a danger to public health and adversely impact neighborhoods, workers, consumers, and animals; 2) as a zoning matter, many live markets may be in violation of their zoning uses; 3) there are bipartisan efforts at the federal level against wildlife markets and worldwide support for restrictions on wildlife markets, and New York State should be in step with these efforts; and 4) animals deserve humane treatment and conditions.

III. BACKGROUND

Zoonotic disease quickly became a term in our daily lexicon.[2] In recent years, there have been multiple outbreaks of zoonotic diseases such as SARS, MERS, H5N1 (avian influenza), HIV, Ebola, West Nile virus, monkeypox, Nipah virus, and Hanta virus.[3] Since 2020, researchers, medical experts, and journalists across the globe have been scrutinizing the potential sources of the COVID-19 virus. Zoonosis is the most plausible of the two potential explanations for the COVID-19 pandemic according to scientists, reinforcing the link between diseases that originate in animals and their transmission to people through live markets and factory farming.[4] While many of us may think of live markets as a foreign concept, live markets are, in fact, in our own backyard.[5] Live markets in the United States typically sell animals such as chickens, ducks, turkeys, rabbits, goats, sheep, and cows, while outside of the United States, live markets may sell animals such as monkeys, bats, snakes, and other animals that are more exotic and not typically consumed in the U.S.[6]

There are over 70 live markets operating in residential areas in New York City alone. The potential for the spread of disease is inherent in live markets no matter the type of species being sold due to the crowding of animals, often multiple species, in unhygienic conditions where animals are inevitably stressed prior to slaughter a problem compounded by a lack of regulation and oversight. For example, by the early 1990s, live-poultry markets in the U.S. were recognized as the missing link in the epidemiology of influenza.[7] Further, the close proximity of slaughter workers to live animals has been linked to carriage of micro-organisms or occurrence of disease at pig and poultry slaughterhouses.[8] Presently, as a result of the COVID-19 pandemic, there is a growing movement among scientists, public health experts, and animal welfare advocates to permanently close live markets.

The New York State Department of Agriculture and Markets ( NYSDAM ) is responsible for licensing and inspecting slaughterhouses in New York under Article 5-A of the Agriculture and Markets Law.[9] A slaughterhouse license is issued for a two-year period. Under Article 5-A 96-b (2), no license may be issued to any person or entity to operate any place or establishment where animals and/or fowls are slaughtered or butchered for food within a fifteen-hundred-foot radius of a residential dwelling. This does not apply to any premises that have been continuously conducting business from a date prior to the effective date of this rule. Despite this Article 5-A provision, there are over 70 live markets that are operating within 1500 feet of residential areas.

Moreover, under Section 96-b(3) of Article 5-A, an applicant for a license pursuant to this article shall furnish evidence: (a) of his or her good character, experience and competency, (b) that the establishment has adequate facilities and equipment for the business to be conducted, (c) that the establishment is such that the cleanliness of the premises can be maintained and (d) that the product produced therein will not become adulterated. Additionally, under section 96-c, posting of inspection results is required and copies must be made available to the public upon request. However, there is little oversight to ensure adherence to these requirements and there are too few inspectors employed by the agency to oversee slaughterhouses statewide, in addition to their other duties.

IV. REASONS FOR SUPPORT

A. Live Markets are a Danger to Public Health and Adversely Impact Neighborhoods, Workers, Consumers and Animals.

According to NYSDAM, there are approximately 30,000 slaughterhouse facilities in the state of New York subject to Article 5-A inspection and there are approximately five inspectors available to inspect over 70 facilities in New York City.[10] NYSDAM requires New York State slaughterhouse facilities to acquire animals from approved sources to control the safety and quality of animals slaughtered for human consumption. Despite this, there are gaps in oversight and enforcement, and NYC sanitation issues pertaining to slaughterhouses are outside of the Department’s jurisdiction.

NYSDAM inspection reports reveal multiple categories of critical deficiencies found at live markets: (1) inhumane conditions for animals whose basic sanitary and health needs are disregarded and who are inadequately separated from kill rooms, (2) deplorable conditions for employees who work alongside rodent droppings and in dusty and poorly ventilated environments, (3) health risks to consumers who are sold products that are produced in squalid and unsafe conditions (e.g., improperly refrigerated food and food exposed to contaminants), and (4) offensive and unhealthy conditions introduced to the surrounding neighborhood, such as stench, rodents, insects, and a mix of animal blood and waste on sidewalks and streets which itself attracts flies, cockroaches and rodents.[11] Despite these violations, slaughterhouse facilities are generally allowed to continue in operation and are not stripped of their license unless there are egregious violations. As a result, violators are permitted to renew their licenses indefinitely under practical applications of Article 5-A.

NYSDAM states that it routinely monitors these facilities for avian flu. Nevertheless, as of May 26, 2023, the U.S. Department of Agriculture confirmed several cases of highly pathogenic avian influenza in four New York City live markets: one in Brooklyn and three in Queens.[12] Cases like this suggest that the spread of zoonotic disease is a constant concern one that is already under routine surveillance for viruses of varying levels of pathogenicity. It is unclear if NYSDAM has since added monitoring for other types of diseases such as SARS-CoV-2.[13]

According to the NYSDAM, U.S. live markets are different from those deemed to be connected to COVID-19. Relying on a Cornell University Fact sheet, the NYSDAM contends that unlike wet markets, which are mostly found in Asian and African countries, live markets in the U.S. are tightly regulated establishments that mainly sell poultry and follow strict separation of areas where animals are kept and slaughtered.[14] However, U.S. live markets are not much different from live markets around the world. As pointed out above, NYSDAM inspection reports revealed inadequate separation of animals. Factors such as these contribute to spillover events making the spread of zoonotic disease a threat to humans irrespective of the species of animals being sold.

While disagreements persist as to the origin of COVID-19, at least eight U.S. intelligence agencies have conducted their own investigations of the origin of the virus. According to a recent article by Scientific American, Four agencies concluded a natural spillover from animals is most likely, two favor a lab leak, and two are undecided. [15] The debate prompted President Biden to sign a bill requiring U.S. government information related to COVID origins to be declassified.[16]

According to Caitlin Rivers, an American epidemiologist, we know that an estimated 75% of emerging infectious diseases are zoonotic or originating in animals, including SARS-CoV-2’s related viruses, MERS and SARS.[17] Stating that spillover events happen when humans encounter animals , Rivers opines that [i]mplementing sustainable policies and practices in these areas could reduce the risk of future outbreaks. Believing that the origins of COVID-19 need not be settled prior to agreeing on the next steps, Rivers concludes that even as we continue to investigate the start of the pandemic, we can use the plausibility of origins scenarios as a to-do list for improvement. [18] This is precisely what this bill intends to do and why it is so critical that this legislation is passed. It is also important to note that the task force established by the bill to examine the public health risks and animal welfare concerns presented by operating live markets is for a limited amount of time. Therefore, this bill would not result in a permanent impact on patrons of these live markets. Moreover, customers will still be able to purchase animal meat of their choice from other food establishments that are properly inspected, properly regulated, and meet legal standards (for cleanliness, sanitation, disposal of animal remains, noise, and the like).

B. Existing Live Markets may be in Violation of Their Zoning Using.

Many New York City live markets are operating either without a certificate of occupancy or in potential violation of the uses permitted in the subject zoning district.[19]

Pursuant to the Zoning Resolution of the City of New York, effective as of December 15, 1961, as amended to date (the “Zoning Resolution” or “ZR”),[20] animal killing and slaughter establishments are included under Use Groups 16 and 18.[21] Use Group 16 uses are permitted only in commercial C8 and manufacturing M1, M2, and M3 Zoning Districts, include semi-industrial uses, and “involve offensive noise, vibration, smoke, dust, or other particulate matter, odorous matter, heat, humidity, glare or other objectionable uses, making such uses incompatible with residential uses and other commercial uses. [22]

Specifically, Use Group 16 includes poultry or rabbit killing establishments, for retail sale on the same zoning lot only.[23] Use Group 18 uses are permitted only in Manufacturing M3 zoning districts, which consist primarily of industrial uses that “either involve considerable danger of fire, explosion or other hazards to public health or safety” and are similarly incompatible with residential and other commercial uses.[24] Specifically, Use Group 18 includes stock yards or manufacturing establishments for the slaughtering of animals or poultry.[25] Recognizing the potentially deleterious effects of such uses, both Use Groups 16 and 18 are subject to performance standards governing odorous and toxic or noxious matter.[26]

Many of the licensed locations in New York City do not have a valid Certificate of Occupancy ( CO ), and/or are in a Zoning District that does not currently allow such use.[27] Twenty-six of the properties surveyed do not have a valid CO for the use of slaughter.  Buildings built before 1938 were not required to have a CO, so, unless such buildings were subsequently altered with respect to their use, occupancy, or egress, such buildings may be “legal.”  However, the lack of a CO may indicate illegality of the building or use in certain circumstances (i.e., the building was built after 1938; the use, occupancy, or egress of the building changed after 1938 and a CO was never obtained; a temporary CO (“TCO”) was obtained that has since expired without ever obtaining an extension of the TCO or a CO, etc.). While some of the 26 licensed premises that lack a valid CO for the applicable killing/slaughter use appear to have existed prior to 1938, many appear to have been built post-1938 and/or have a CO for a different use (i.e., residential dwelling units).

Twenty-five of the properties surveyed are in zoning districts that do not currently allow Use Group 16 or 18 uses.  While some of such uses may have existed prior to the current requirements of the Zoning Resolution, the Zoning Resolution is clear in its resolve to eliminate such uses in order to group compatible uses and promote and protect public health, safety, and general welfare.[28] Thus, the Zoning Resolution includes requirements that aim to eliminate non-conforming uses and incentivize a change from non-conforming to conforming uses.[29]  The Zoning Resolution allows the continuance of a Non-Conforming Use that was permitted at the time the use began, subject to certain limitations,[30] but the regulations governing such uses aim “to provide a gradual remedy for existing undesirable conditions resulting from such incompatible non-conforming uses, which are detrimental to the achievement of such purposes. [31] Clearly, the Zoning Resolution aims to eliminate such uses, which are inconsistent with the other uses permitted in the applicable zoning district.

Many of the licensed properties located in zoning districts that do not permit Use Groups 16 or 18 are in residential zoning districts that are wholly incompatible with such uses (for example, the 13 locations without a valid CO), and their continuance presents serious public health and safety issues.

These statistics demonstrate that many of the live market locations are potentially in violation of the respective zoning use.  Further, such uses are undesirable and, in many cases, incompatible with the other uses that surround them. In the opinion of the Animal Law Committee, those live markets that are non-conforming should be discontinued and do not deserve to be grandfathered in under law as a matter of public policy.

C. New York State Hold Should Take the Lead by Joining Global and Federal Efforts to do Away With or Place Greater Restrictions on Live Wildlife Markets.

On the federal level, Senator Chris Coons of Delaware (D) and Senator Lindsay Graham of South Carolina (R) introduced the Global Wildlife Health and Pandemic Prevention Act in the U.S. Senate which would require the U.S. Departments of State and Agriculture, as well as several agencies, to identify which species and practices in live wildlife markets are most likely to cause outbreak of zoonotic disease and to leverage international diplomacy to shut such markets down.[32] The president would also be able to sanction nations that continue harboring these high-risk markets. Additionally, the legislation would require U.S. agencies to coordinate their approach to zoonotic disease preparedness, minimize the interactions between humans and wildlife by protecting ecosystems, and reduce demand among food-insecure communities that depend on wildlife.[33]

Similarly, Senator Cory Booker of New Jersey (D) and Senator John Cornyn of Texas (R) introduced a bipartisan bill titled the Preventing Future Pandemics Act. This bill would establish measures to address the global public health risk caused by wildlife markets and direct the State Department to study and take action against countries that permit the operation of commercial wildlife markets.[34] In the House of Representatives, Representative Mike Quigley of Illinois (D) and Representative Fred Upton of Michigan (R) introduced a companion bill to shut down commercial wildlife markets globally and end the trade of live wildlife for consumption.[35] Both bills received bipartisan support.

Additionally, Congress resolved that the World Health Organization (WHO) should encourage all its member states to close live markets around the world.[36] And, in 2020, the U.S. House of Representatives introduced the HEROS Act to fund surveillance of zoonotic disease and to assist foreign countries to end the wildlife trade which represents health risks to humans. The funds would also be used to establish a list of species that could pose a biohazard risk to human health.[37]

Globally, there continues to be widespread support for restrictions on live markets by government and private actors alike. In 2021, the WHO issued interim guidance on reducing public health risks associated with the sale of live wild animals in traditional food markets. Together with the World Organisation for Animal Health (OIE) and the United Nations Environment Programme (UNEP), the WHO calls on national competent authorities to suspend the trade in live caught wild animals of mammalian species for food or breeding purposes and close sections of food markets selling live caught wild animals of mammalian species as an emergency measure. [38]

Domestically, even in the very early days of the outbreak of the COVID-19 pandemic, organizations knowledgeable about wildlife and farm animals, and representing more than 10 million supporters, were united in seeking a permanent ban on wild animal markets, which could become sources for future pandemics, and a commitment to end international trade in wild animals and their products, which contributes to the spread of zoonotic diseases.[39]

D. Animals Deserve Humane Treatment Before and During Slaughter

All animals are equally deserving of humane treatment, sustenance, and living conditions. Scientific studies have found that animals, both domestic and wild, have a consciousness, are capable of feeling stress, and can suffer pain.[40] Any pet owner knows this to be true from their first-hand experience and the bond they share with their companion animal. Congress has recognized the need for animal welfare in slaughter and prevention of animal cruelty by the enactment of the Humane Methods of Slaughter Act ( HMSA ), which states, No method of slaughtering or handling in connection with slaughtering shall be deemed to comply with the public policy of the United States unless it is humane (…). [41]

The experience of stress, anxiety, and pain is especially commonplace for factory-farmed animals and wildlife captured for slaughter. These animals often endure cramped and unsanitary living enclosures, food deprivation, poor air or water quality, long and uncomfortable transports, and exposure to unfamiliar and high-stress environments.[42] These factors together contribute to the animals’ experience of physical, mental, and psychological suffering.[43]

Animal welfare has been scientifically shown to be inextricably linked to animal health.[44] Therefore, improving living conditions and slaughter methods is critical to treating animals more humanely[45] and safeguarding against potential sources of zoonotic disease.

V. CONCLUSION

For the reasons stated above, the New York City Bar Association’s Animal Law Committee supports the proposed legislation.

Animal Law Committee
Robyn S. Hederman, Co-Chair
Rebecca Seltzer, Co-Chair