Animal Identification - An Overview

Reviewed July 18, 2007

Background

An animal identification system traces the whereabouts and movement of certain animals. While government officials and private industry had been working on the issue prior to the discovery of bovine spongiform encephalopathy in late 2003, USDA announced that it would expedite its efforts in the wake of the discovery. On April 27, 2004 Secretary Veneman announced a framework for the implementation of the system called the National Animal Identification System (NAIS) that was developed with the collaboration of USDA, private industry, and state animal health officials and is largely based on earlier work done with the United States Animal Identification Plan. The plan will eventually encompass all livestock and poultry in the United States. The NAIS will provide information on the whereabouts of animals from their original birthplace to the slaughter plant. It does not include tracing the meat through the plant to the consumer. Although not currently mandatory, the goal of the NAIS is to be able to trace all livestock and poultry within 48 hours of a certain event such as a disease outbreak.

General Framework

The Animal Health Protection Act provides USDA with the authority to restrict the interstate movement of livestock and to carry out operations to detect, control, and eradicate animal disease. Because the NAIS is not mandatory at this time, there are no mandatory regulations. There is, however, a general framework for the relationship between USDA, state health officials, and private industry. In general, the plan addresses the need for fundamental information in the system: identification of premises where animals may spend time (including farms, auction markets, and meatpacking plants), identification of the animals (either on an individual or lot basis, depending on species), and a record of the animals' movement. Interested parties are continuing to develop a system for storing and retrieving the information. Industry participants are mainly concerned about the possible cost of implementation, of which there is no concrete estimate because the actual shape of the program is still to be decided.

Confidentiality and Liability

The NAIS also raises legal issues, such as the confidentiality of the information provided to the NAIS and whether the NAIS increases risks of liability. In the area of confidentiality, the Freedom of Information Act (FOIA) may apply to the system and thus require that federal agency, in this case an agency within USDA, disclose information in the NAIS to the public. FOIA, however, does include exemptions that may cover the NAIS or Congress could pass legislation that expressly limits disclosure of NAIS information. Confidentiality concerns also exist where the information is held by a private party even though FOIA does not apply to information created and maintained by a private party. The privacy issues in this case revolve around the private contract between the provider and maintainer of information that could allow or restrict sharing of information.

FOIA is not the only method of obtaining access to information provided to the NAIS. Private parties in the course of litigation pursuant to a court's subpoena power could seek disclosure of certain information. The NAIS may affect the risk of liability because a key component of any lawsuit is knowing who caused the harm. Livestock producers have always been liable for the livestock they produce, but many in the production chain have been able to remain anonymous because of the marketing structure of the particular industry. The degree to which the NAIS changes this dynamic may be limited given that NAIS does address tracing the meat through the processor to the consumer. The two main liability theories are negligence and strict liability. In either theory, proving causation is a major factor. Negligence is the failure to exercise reasonable care, such as administering illegal drugs or ignoring withdrawal times.

Strict liability is not concerned with reasonable care but focuses on whether one has introduced a defective product that is unreasonably dangerous into the stream of commerce. The law is not clear on whether animals would be deemed "unreasonably dangerous products." Closely related to strict liability is implied warranty of merchantability, which has been adopted in most state in their commercial code, a set of laws regulating sales and usually based on the Uniform Commercial Code. The implied warranty of merchantability states that a merchant who sells goods warrants that the goods are fit for the ordinary purposes for which the goods were sold. Yet most states that have animal agriculture as a major part of their economy limit livestock producers' exposure under implied warranty provisions. These exemptions generally state that livestock producers cannot be considered "merchants," and thus cannot be held to the higher standard. This type of exemption is not included in the uniform law but is a variation that many states have adopted.

Conclusion

The law surrounding the NAIS is in nascent of development. Although the program is not initially designed to be mandatory, it may become so eventually. At any rate, the government's approach to the precise data requirements and maintenance of information will affect participants of the livestock industry. Further, as the system is developed, participants will need to be mindful of settled law concerning the confidentiality of the information and the liability of those raising and processing livestock.

For more information related to Animal Identification, please visit the Country of Origin Labeling Reading Room and the Food Safety Reading Room.