Vivisectors and Robber Barons
by Jeremy Beckham

 

The vivisection industry has dealt with imposition of laws and regulations governing their cruelty in the same manner since at least the 1950s. It is reminiscent of the ways in which industrialists, known as “robber barons”, resisted progressive regulation in the 19th and early 20th century. First, claim to the public that laws and regulations are not necessary, because organizations and institutions of self-policing have been established that adequately oversee the use of animals. Second, claim that the regulations will be costly and detrimental to the public good. Third, if the regulations are passed, seek to weaken their enforcement with the relevant agency and try to find legal loopholes, sometimes through litigation. If this doesn’t work, lobby to rollback these regulations through legislative repeal. Finally, claim that the remaining regulations are evidence of meaningful oversight.

 

Vivisectors and their advocacy organizations seem to believe that the public will not notice their duplicitous behavior and will swallow whole the claim that researchers gladly comply with the laws. This, they say, proves that further change inside the laboratories is no longer needed. In America, where our collective memory is so short, vivisectors rely on the fact that no one will likely remember that they resisted so forcefully these same regulations.

 

In 1950, the “Animal Care Panel” was born - a precursor to the American Association for Laboratory Animal Science (AALAS). The Animal Care Panel was presented to the government and the public as a meaningful self-policing and self-regulating organization to ensure the “humane treatment” of experimental subjects. The “Animal Care Panel” seemed to effectively stave off the low-key demands for change inside laboratories for at least a decade.

 

In the mid-1960s, concern over the treatment of animals in labs began to grow. In particular, the public was outraged over multiple instances of pets being stolen from people’s yards or taken from local animal shelters and sold laboratories around the country. A murmur for legislative action began. From the beginning, the research community was opposed to any legislation regulating the means in which laboratories acquired animals. They even opposed federal legislation merely to ensure dealers were not stealing people’s pets. Dr. George Wakerlin, Medical Director of the American Heart Association, testified to Congress that “the scientific community feels unjustly stigmatized by the way this bill and publicity surrounding it relates pet stealing only to research needs.”^[1]

 

Dr. Wakerlin was speaking on behalf of the largest pro-vivisection lobbyist organization in the country - the National Society for Medical Research (NSMR). NSMR, in the 1980s, restructured and became the National Association for Biomedical Research (NABR). In 1965, released a memo opposing proposed federal legislation. They alleged that the regulations would “complete a pincers movement on research animal supply.” They continued: “The stakes in this contest are nothing less than the pace of medical progress. The pawns are the countless thousands who will die sooner if discoveries come later.”^[2] Even the American Veterinary Medical Association (AVMA), always aligned with animal abusing enterprises, stated that they were “irrevocably opposed to federal licensing and policing of scientific investigators and laboratories.”^[3] Already, the vivisection lobby was using the public’s fear of death and disease to fight any improvements in conditions for animals in laboratories. They would continue to perfect this hoodwinking for decades. A New York Times editorial in 1965 specifically decried the fact that “most of the medical profession” was “vehemently opposed” to its passage.^[4] The public, however, was still very supportive of the legislation.

 

Understanding that the public’s growing concern was a threat, the vivisection industry, led by the American Medical Association, supported H.R. 5191, introduced by Rep. Edward Roybal (D-CA). The bill was a placebo that contained absolutely no enforcement mechanism or mandatory requirements on labs whatsoever. It did, however, provide for additional federal funding sources for vivisection laboratories. In addition, the industry also formed the Association for Assessment and Accreditation of Laboratory Animal Care (AAALAC) in 1965. AAALAC was formed by over a dozen trustee representative organizations, including the Pharmaceutical Manufacturers Association, the American Medical Association, and the National Society for Medical Research (now NABR). For a fee ranging from $100-$1,000, a representative from AAALAC would make a site visit and would give the institution accreditation for five years before requiring another site visit. Once again, the industry claimed that self-policing was the best policy and that external regulations were not needed.

 

On February 4, 1966, Life ran an expose titled “Concentration Camps for Dogs.” The cover of Life bore the warning: “YOUR DOG IS IN CRUEL DANGER.” This article described the disreputable practice of companies and individuals that would acquire dogs, sometimes through theft, for sale to laboratories. The text of the article was brief, but it was surrounded by photographs of horrific conditions at these dealers; dogs were pictured emaciated, filthy, frozen-to-death, and clearly abused. It also told the story of dog dealer Lester Brown, convicted repeatedly of animal cruelty but still in the dog-dealing business. Demands for government intervention swelled to a clamor.

 

The United State House of Representatives began committee hearings to consider legislation. The original federal Animal Welfare Act (then called the Laboratory Animal Welfare Act) grew out of these hearings. But the industry fought the law. They continued to claim in congressional testimony that AAALAC and self-policing were effective and stated that if legislators must pass a law, they should consider Rep. Roybal’s bill. The Animal Care Panel (now AALAS), trying to assure the public that all was well in their labs, testified that “For more than 14 years the Animal Care Panel has been putting that house in order. Mr. Chairman, that house is in order, and if there are those who would carp at that, let them come forward at another time and place to vent their concerns.”

 

Well, others were there to vent their concerns at that place and time. Samuel Peacock MD, Director of the Eastern Pennsylvania Psychiatric Institute, also testified at the house hearings regarding the formulation of AALAC:

Self regulation through the American Association for Accreditation for Laboratory Animal Care is a farce. For example, one of the facilities with which I am a consultant research associate, was inspected by a committee representing this organization. Their appointment was set up a week in advance. The animal colony attendant worked overtime for days cleaning up the colony, painting cages, etc. No cats were ordered for the week so that the usual overcrowding would be avoided...Had they arrived unannounced one week later, they would have seen four or five cats in cages designed for one cat, cages with dead cats among the living, neither food nor water in the cages...In short, the research community will not and cannot regulate itself. If they could, the present conditions would not exist.”

The legislature, responding to strong public outcry, passed the federal Laboratory Animal Welfare Act in 1966. However, the AWA was changed and weakened since its original introduction. In 1962, the bill’s stated intention was to “provide for the humane treatment of animals used in experiments and tests”. In the version that passed in 1966, the bill’s intention was only to “regulate the transportation and sale of animals.” The bill also explicitly listed what species of animals would be covered. Rats and mice, the animals that made up over 90% of the animals used in vivisection, did not make the cut.

 

The law would not impede on the ability of vivisectors to continue whatever cruelties they justify in the course of their actual experiments. When President Johnson signed the Animal Welfare Act, he made a brief statement, that included in part "[This] bill does not authorize any sort of interference with actual research or experimentation. They just must go on."^[5]

 

And in a televised interview shortly after the passage of the law, Dr. Frank J. Mulhern, the first director of the Animal Health Division of the USDA (a precursor to APHIS), in charge of enforcing the new law, also emphasized, “we do not intend to interfere with research."^[6]

 

In 1970, Representative Whitehurst (R-VA) introduced an amendment to the AWA in an attempt to broaden the numbers of species protected. Again, there was industry resistance. Dr. Helen Taussig of the American Heart Association testified in Congress against its passage stating that the bill would impose "a very heavy burden on medical research" and that "medical research should not grind to a standstill.” The National Society for Medical Research (NSMR) also worked to defeat its passage. They failed, and the amendments passed. Now, the definition of animal would include “such other warm-blooded animal, as the Secretary [of the USDA] may determine.” Immediately, however, the industry successfully lobbied the USDA to interpret the new law to continue excluding mice and rats - the species most commonly used in vivisection. For the next 30 years, this disparity between the law and its interpretation would remain the status quo.

 

In 1985, amendments were introduced to the Animal Welfare Act in the U.S. Congress. The amendments had bipartisan support. The primary sponsors of the legislation were Sen. Robert Dole (R-KS) and Rep. George Brown (D-CA). The amendments required that dogs used for research be given regular exercise, that a plan be established for ensuring the “psychological well-being” of nonhuman primates, and that every institution establish their own Institutional Animal Care and Use Committee (IACUC) to oversee and approve proposed research projects and ensure compliance with federal law. Again, the industry resisted.

 

The Journal of the American Medical Association printed an article in response to the proposed 1985 amendments to the Animal Welfare Act.^[7] The authors found the proposed regulations “neither necessary nor desirable.” In their article, Drs. Overland and Sales stated that:

“Most scientists and scientific organizations vehemently oppose any additional legislation that would interfere with the design and conduct of scientific research because of the initiatives that they have already taken in voluntary self-regulation of the use of animals in research, the verifiable data on the reduction in the use of animals in research and testing, and the remarkably small number of documented instances of laboratory animal mistreatment and abuse.”

The authors were even opposed to simply increasing funding to adequately enforce existing laws: “It is difficult to rationalize drastically increased funding for enforcement of animal protection programs at the same time that funds for human social programs are being drastically reduced.” Months later, the authors further elaborate in a letter to the journal that “the scientific community should vociferously oppose any proposed regulation that would prohibit or restrict the use of animals in research...Indeed, it is these misguided efforts to reform the scientific method that clearly represent the ‘greatest contemporary threat to biomedical research.’”^[8]

Frankie Trull, then-and-current president of the National Association for Biomedical Research (NABR), disputed the idea that dogs who leave their cage for exercise periodically have better lives than those confined to cages their entire lives. She states, “There are no scientific data which say any minimum exercise per day, or per week, is physiologically better [for dogs]. You just sleep better at night because you think if exercise is good for you, it must be good for the dog.”^[9] She also elaborated that she feared that “research institutions may be reaching the point where research will be sacrificed for economic reasons” due to excessive regulations.^[10]

 

These amendments also ultimately passed. But where they weren’t able to defeat the legislation on the floor of Congress, they instead tried to weaken the spirit of the law by pressuring the enforcement agency (USDA/APHIS) to interpret the statute in a fashion to the liking of researchers - just as they had done with the 1970 amendment. In her book on primate vivisection, The Monkey Wars, Deborah Blum explains:

When the USDA announced that it would toughen earlier regulations, NABR filed an [sic] 118-page legal brief in opposition to the changes. After the agriculture agency backed down, issuing rules far more to the liking of the science community, Trull wrote the agriculture department a congratulatory letter, offering to provide any information needed and adding that “the association looks forward to continued cooperation with you.”^[11]

NABR, complaining about the economic costs for laboratories, looked for ways to weaken the provision simply requiring that dogs be exercised periodically. On the floor of Congress, Senator Dole expressly stated that he wished the dogs be released from their cages and exercised. But, due to loopholes in the actual text of the AWA, NABR successfully lobbied for the USDA to interpret the exercise requirement in an absurdly narrow manner. Individually caged dogs need not be released if their cage is twice the regulation size. Also, labs that confine beagles in pairs in double cages need not release them for exercise. They claimed that a cage, only double the length of the beagle plus six inches, is room enough for the beagles to adequately exercise and so the dog may be left in the cage for years at a time - removed only for experimental procedures.^[12]

 

NABR and the vivisection industry also lobbied for weak interpretation of the provision regarding “psychological well-being” of primates. Members of Congress consistently spoke out against the size of the cages for primates in laboratories (3 ft x 2 ft x 32 in.) and hoped their provisions would change that. Instead, when the USDA issued their final regulations, nothing changed about the cage size of primates except that now vivisectors were allowed to avoid the minimum regulations if their institutional care committee approved of the exemption.

 

A lawsuit was subsequently filed over the final regulations. District Court Judge Charles Richey ruled in favor of animal protection organizations. Blum writes in The Monkey Wars:

Richey called the USDA’s refusal to upgrade cage sizes “arbitrary and capricious.” The judge himself hinted that he suspected biomedical researchers of having written the rules to their own liking. He insisted that larger cages should be available for captive animals - and soon.

The USDA, along with NABR, appealed the ruling. Sadly, in Animal Legal Defense Fund, Inc. v. Espy^[13], the Court of Appeals ruled that the plaintiffs lacked standing and overturned Judge Richey’s original decision. The court stated that because ALDF and the other plaintiffs were not themselves injured by the weak USDA regulations (only the animals were) - they had no basis to sue. The actual merits of their case, however, were not disputed. This is a common obstacle lawyers run into when trying to litigate on behalf of animals.

 

Senator John Melcher, a veterinarian and the legislator responsible for the amendment requiring psychological well-being of primates in laboratories, expressed disappointment that so many primates continued to be housed in tiny stainless steel boxes for their entire lives, deprived of any enrichment or social activity. While still affirming his support for some experimentation, he stated it was his intention with his legislation to end such practices.^[14]

 

However, the pesky provision that was inserted to the AWA in 1970 to provide protection for “such other warm-blooded animal, as the Secretary may determine” was coming back to haunt the research community much later. In 1999, the Alternative Research and Development Foundation filed suit against the USDA to force them to begin regulating research involving rats and mice. The USDA filed a motion to dismiss, but the motion failed. When it thus appeared the USDA’s prospects of winning in court were dim, NABR intervened and tried to stop ARDF’s suit. Subsequently, the USDA agreed to revisit their rules regarding regulation of mice and rats and begin a new program for overseeing their treatment in laboratories. Amazingly, NABR tried to intervene as a third party by filing a motion to vacate this agreement between the USDA and ARDF - but they failed. In a twist of ironic justice, the Court of Appeals ruled that NABR lacked standing and therefore had no basis to sue.^[15] The decision in this case meant that the USDA would now move forward with a plan to begin covering rats, mice, and birds under the Animal Welfare Act.

 

The vivisection industry was in an uproar at the prospect of having 95% of their animals now protected by even the tiniest of tiniest regulations. “What are they thinking?” exclaimed an angry Frankie Trull. The Association for American Medical Colleges also expressed their “disappointment” that there would be an “increased regulatory and paperwork burden”.^[16] Dan Vergano, reporter for USA Today, explains:

The research community, meanwhile, argues that extending the law to cover rats, mice and birds -- which make up about 95% of laboratory animals -- will require researchers to spend a fortune keeping track of redundant regulations, will generate thousands of pages of additional documentation and will open the door to further restrictions aimed at stopping fruitful medical research done with animals.^[17]

They immediately began pursuing other means of excluding mice and rats, since their options in court were now few and far between. They moved very fast. First, their lobbyists persuaded Congress to include a provision in their federal spending bill that would, for the moment, put off protecting mice and rats for another year. While the enforcement was postponed, an undercover PETA investigation documented horrific abuses to rats and mice and University of North Carolina at Chapel Hill. Included was undercover footage showing that rats were crudely beheaded with scissors without anesthesia. Amazingly, despite this investigation, NABR successfully got Senator Jesse Helms (R-NC) to introduce an amendment, defining “animal” to explicitly exclude rats, mice, and birds. The amendment was attached to a massive farm subsidy bill without any debate. This was a political trick - this would force any senator opposed to Helms’ amendment to also vote against popular farm subsidies. Helms also managed to have the bill become law even though it never went to a vote in the House. The United States Congress conference committee decided the amendment was not substantial enough to justify bringing the farm bill back to a vote in the House. The federal government no longer considers mice, rats, and birds to be animals. The vivisectors were quite pleased.

 

None of this is meant to imply that these regulations, although much resisted by the industry, actually do provide for the humane treatment of animals. Animal suffering in laboratories is pervasive, even for those 5% of animals in laboratories covered under the AWA. Existing regulations have done little to nothing to change that. An extensive amount of evidence can be offered to support this claim. Much evidence can also be provided to demonstrate that these weak laws are not and never have been effectively enforced.^[18] The researchers can even get permission from their local animal care committee to conduct research that they openly admit is in violation of federal law. With these committee-approved “exceptions”, the USDA inspector’s hands are tied and they may not issue a citation.

 

Despite this shameful legacy, the vivisectors and their advocacy organizations astonishingly continue to state that all is well within their labs because they happily comply with all relevant federal law. The Foundation for Biomedical Research’s FAQ states that “the Animal Welfare Act and the Public Health Service Act, regulate the alleviation and elimination of pain, as well as such aspects of animal care as caging, feeding, exercise of dogs and the psychological well-being of primates.”^[19] Perhaps, if they inserted the phrase “despite our best efforts” preceding this statement, they would be on a path to honesty and integrity.

 

The vivisection industry’s behavior over the last four decades clearly demonstrates their resolute willingness to lie and deceive. It also demonstrates their fear that, perhaps, one day, the public may actually get so angry with them that their cruelties will one day be stopped through legislative action. But for now, the regulations are accomplishing virtually nothing for animals inside labs and, instead, are providing the labs with a facade of oversight that serves only to assuage public concerns. They’ve learned well from the robber barons. In 1887, the Interstate Commerce Act was passed under the auspices of protecting consumers from the tyrannical railroad corporation. Railroad corporations, just like the vivisectors, originally resisted the legislation and wanted it repealed, but on further thought realized that:

“The Commission...is or can be made, of great use to the railroads. It satisfied the popular clamor for a government supervision of railroads, at the same time that that supervision is almost entirely nominal... The part of wisdom is not to destroy the Commission, but to utilize it.”^[20]