Profit v Protection: Can Commercial Benefit Override Animal Welfare Law?
Animals often live within commercial industries, where measures intended to improve welfare may affect costs, productivity, competitiveness or the viability of established commercial practices.
This raises an important question: can commercial benefit ever override animal welfare law?
The short answer is no. Profitability, convenience, efficiency or established commercial practice cannot justify conduct that falls below the level of animal-welfare protection imposed by law.
A Principle First Established More Than a Century Ago
The courts first confronted the relationship between animal suffering and commercial benefit more than a century ago.
In Ford v Wiley (1889), a farmer was prosecuted for sawing the horns off adult cattle. This caused them extreme and prolonged pain. The farmer argued that the practice made the cattle quieter, prevented injuries, allowed more animals to be accommodated, enabled them to fatten more quickly, and increased their sale value.
The Court accepted that causing pain to an animal is not necessarily unlawful where it is reasonably necessary to achieve an adequate and legitimate purpose. However, obtaining a higher sale price, accommodating more animals and avoiding occasional injuries were all benefits that might be convenient or profitable to the farmer, but could not be described as necessary. There had to be a reasonable proportion between the object pursued and the suffering inflicted. In Ford, the extreme suffering caused by dishorning was found to be wholly disproportionate to the limited commercial benefits it obtained.
This principle was reaffirmed in Waters v Braithwaite (1913). A farmer deliberately left a dairy cow unmilked before taking her to market, causing her pain and difficulty walking. The purpose was to demonstrate her milk-producing capacity to prospective purchasers. The farmer argued that presenting cows for sale in this condition was a well-established local custom.
The High Court held that the farmer should have been convicted. Neither the age of the custom, nor its commercial advantages, prevented the statutory protection from applying.
Together, Ford and Waters established an enduring principle: profitability, convenience and industry custom cannot justify suffering that is unnecessary or disproportionate. A practice does not become lawful simply because it is commercially beneficial or widely accepted.
When Commercial Considerations Can Be Relevant
Commercial considerations are not irrelevant in every animal-welfare case. Where legislation pursues more than one objective, they may form part of an assessment of whether a welfare measure is proportionate.
This was considered in Mas Group Holdings (2019), which concerned legislation protecting animals during transport. The regulations in question required organisers to make arrangements in advance to minimise journey length and meet animals’ welfare needs. The regulations identified animal welfare as their primary objective, but also pursued secondary trade-related objectives.
The Claimants sought approval for a route through Ireland which would take approximately 90 hours. The alternative route between Ramsgate and Calais would take around 20 hours. The Claimants argued that being required to use the shorter route meant using a competitor's service at a price which significantly reduced, or eliminated, their profits.
The High Court rejected their challenge. It held that commercial considerations could not ‘trump or override’ the legislation’s primary animal-welfare objective. Even if the shorter route was commercially less attractive, this did not, by itself, make it disproportionate to require its use.
The Court did not, however, treat commercial consequences as entirely irrelevant. Where two options both remain consistent with a statutory scheme, their effects on costs, profitability and trade may be considered. A route which was only slightly longer but offered substantial commercial advantage might therefore have been permitted. By contrast, it was proportionate to reject a route that was more than four times longer.
This distinction is important. Commercial benefit may sometimes influence the choice between legally permissible options. It cannot justify reducing welfare below the minimum standard required by law.
Where the Law Draws a Firm Line
The limits of commercial considerations were considered more recently in Humane League (2024). The case concerned fast-growing breeds of chickens that were selectively bred to reach slaughter weight more quickly. These chickens are associated with a plethora of welfare problems including increased mortality, heart and circulatory conditions, leg disorders, and a reduced ability to perform natural behaviours.
Paragraph 29 of Schedule 1 to the Welfare of Farmed Animals (England) Regulations 2007 provides that animals may only be kept for farming if it can reasonably be expected, on the basis of their genotype or phenotype, that they can be kept without any detrimental effect on their health or welfare.
The Court of Appeal held that this provision is a prohibition subject to a proviso. It is concerned with the detrimental characteristics inherent in the breed that cannot be eliminated by changing the conditions in which the animals are kept. It does not prohibit keeping a breed where its particular needs can be accommodated through appropriate environmental conditions.
Once a qualifying and unavoidable detrimental effect has been established, however, paragraph 29 does not permit that detriment to be balanced against productivity or economic advantage. The Court held that the provision ‘unequivocally prioritises animal health and welfare over commercial benefit’, and a breed subject to such detrimental effects cannot be kept ‘no matter how profitable or convenient’it may be.
The Court did not determine whether any particular fast-growing breed was kept unlawfully. It did, however, establish the applicable legal principles. Where legislation imposes an express welfare prohibition, commercial benefits cannot justify conduct that falls within it. The decisive question is whether the statutory threshold has been crossed, not whether crossing it produces sufficient economic advantages.
What this Means for Today
Animal welfare laws continue to operate within industries where stronger protections have commercial consequences. These commercial factors may sometimes be relevant when choosing between different options that remain consistent with the law. They cannot, however, dilute the minimum level of protection Parliament imposed.
The case law stretching back one and a half centuries draws a clear distinction. Commercial considerations may influence how a welfare provision is applied where the legislation permits a proportionality assessment. Profitability, convenience, efficiency, and industry custom cannot, however, excuse suffering or welfare determinants that the law prohibits.
For regulators, business and courts, the starting point must be the wording and purpose of the relevant legal provision. The economic importance of an industry does not place it beyond animal-welfare law. Where the legal threshold has been crossed, commercial benefit is no defence.
