LEFTOVERS FOR LIVESTOCK - School Of Law
LEFTOVERS FOR LIVESTOCK:A Legal Guide for Using Food Scraps as Animal FeedAugust 2016
I. Introduction.1II. Federal and State Regulations.3A. Federal Laws for Using Food Scraps in Animal Feed.3a. Federal Swine Health Protection Act.3b. Ruminant Feed Ban Rule.4c. The Food Safety Modernization Act Preventive Controls Rules.5i. Food covered by the Preventive Controls rule for animal food.5ii. Facilities covered by the Preventive Controls rule for animal food.51. Facilities not in compliance with the human food rule.62. Facilities already in compliance with the human food rule.63. Primary and secondary production farms.64. Qualified facilities.75. Facilities not required to register with FDA.7d. FDA Regulations Regarding Adulteration.7B. State Regulations.8a. Interaction between state and federal law.8b. Overview of state laws.8III.Recommendations for Using Food Scraps as Animal Feed.11IV.Appendix A.13This guide was written by Emily Broad Leib, Director of the Harvard Law School Food Law and PolicyClinic (FLPC); Ona Balkus, Senior Clinical Fellow at the FLPC; Christina Rice, Clinical Fellow at theFLPC; Michelle Maley, Rohan Taneja, and Robin Cheng as law students in the FLPC; Nicole Civita,Director of the Food Recovery Project at University of Arkansas School of Law; & Tiffany Alvoid, asa candidate for a LL.M. in Agricultural and Food Law at the University of Arkansas School of Law.August 2016Leftovers for Livestock: A Legal Guide for Using Excess Food as Animal Feed x
LEFTOVERS FOR LIVESTOCK:A Legal Guide for Using Food Scraps as Animal Feed1I. IntroductionIn the United States, approximately 160 billion pounds offood are wasted every year.2 The U.S. spends 218 billioneach year growing, processing, transporting, and disposingof this food.3 As wasted food breaks down in landfills, itemits methane, a potent greenhouse gas with 56 times theatmospheric warming power of carbon dioxide.4 Given thesignificant environmental impacts of wasted food, there hasbeen increasing interest and investment in diverting foodfrom landfills in creative ways.The Environmental Protection Agency (EPA) has developedthe “Food Recovery Hierarchy” (pictured below), a hierarchyof methods for recovering excess food. The Hierarchydisplays that wholesome, edible food should be kept in thehuman food supply whenever possible. When food is nolonger edible for humans but still safe and wholesome foranimals, the hierarchy recommends diverting these foodscraps to feed animals. This guide aims to provide bothgenerators of food scraps and livestock farmers with a basicunderstanding of the laws and regulations bearing on thepractice of feeding food scraps to animals, in particular,swine. By acquainting stakeholders with the relevant legalrequirements, this guide further aims to encourage theappropriate and lawful diversion of food scraps to animals,which in turn can create mutually beneficial partnershipsbetween food-waste generators and livestock growers, and,ultimately, to reduce the negative environmental impacts ofwasted food.EPA Food Recovery Hierarchy: d-recovery-hierarchy (last accessed June 2, 2016)1 The use of food scraps as animal feed has been a commonpractice worldwide for centuries.5 The vision of a classicagrarian homestead often features the farmer’s childrenbringing dinner scraps out to “slop the pigs” and feed thechickens. Yet the practice of feeding food scraps to animalshas declined precipitously since the 1980s, when severaldisease outbreaks were linked to animal feed (specifically,animal products in livestock feed), including foot-and-mouthdisease in swine and bovine spongiform encephalopathy(BSE), commonly referred to as mad cow disease, in cattle.In an attempt to prevent the spread of such diseases, federaland state laws and regulations that restricted what is oftenpejoratively referred to as “garbage feeding” were enacted.Some of these policies were overly restrictive, and many ofthem impose conflicting requirements among neighboringstates. Thus, they contributed to a decline in the amount ofleftover food being used in animal feed. Indeed, by 2007,just three percent of U.S. hog farms fed food scraps to theirlivestock.6Although recent decades have seen a decline in thetraditional, informal farm-scale practice of “garbagefeeding” in the U.S., large-scale food processing and feedproduction facilities continue to capture the byproducts ofhuman food manufacturing and repurpose these humaninedible or unpalatable portions of our food supply intocommercial feedstock for animals.7 The practice of utilizingexcess food to feed livestock never fully disappeared, it justchanged scale and became more industrialized. However,as a result of the shift in scale, scope and methods, manysmaller but substantial sources of food scraps suitable foruse as animal feed have gone unused. Recently, there hasbeen rising interest in the practice of using a wider arrayof safe, properly-treated food scraps from a range ofsources—including unsold retail food and post-consumerfood scraps—as animal feed. This practice can be mutuallyLeftovers for Livestock: A Legal Guide for Using Excess Food as Animal FeedAugust 2016
beneficial for food businesses and regional farms thatpartner to reduce their respective waste disposal and feedcosts and enhance the sustainability of their operations.As increasing numbers of farmers, food entrepreneurs,and consumers become aware of and concerned aboutthe environmental and economic problems associatedwith food waste, there is renewed enthusiasm for the useof food scraps as animal feedstock or feed supplement.Using food scraps as animal feed in a safe, resourceefficient way can be an environmentally friendly andenergy-efficient alternative with multiple benefits forfarm and food businesses, consumers, and communities: conventional waste disposal (that is, sending food scrapsto landfills). The experience of the MGM Grand Buffetin Las Vegas is apt, as it demonstrates that divertingfood scraps for animal feed can generate significant costsavings.9 MGM increased its food recovery amountsfrom 3,350 tons in 2007 to over 14,000 tons in 201110while saving between 6,000 and 8,000 per month.11Through partnerships with a local farm, these foodscraps helped feed 3,000 pigs.12 Farmers can save money. Feed is often the most costly,and certainly the most constant input needed for animalagriculture. As commodity prices continue to rise,farmers may be able to economize by sourcing excessfood to be used as a feedstock or feed supplement.While some studies show that the nutritional qualityof food scraps can be comparable or even superior totraditional feeds,8 it is important to be mindful aboutthe sourcing, selection, and handling of non-commercialor non-traditional feed sources. Farmers who carefullyselect types and combinations of food scraps that arenutritionally appropriate for and readily digestible bytheir animals should be able to simultaneously promoteanimal health and wellbeing, secure a reasonable rateof growth, make use of food that would otherwise go towaste, and save money.Businesses can save money in garbage disposalcosts. From the perspective of many businesses andinstitutions that produce, process, sell, and servefood, diverting food scraps as animal feed presents theopportunity for significant cost savings in the form ofreduced tipping fees that landfills and waste haulerscharge for disposal of food scraps. Waste-generatingfacilities typically realize savings after comparing thecosts of feeding food scraps to animals to the costs ofAugust 2016New partnerships could result in educationalopportunities. Partnerships between businesses andfarms create educational opportunities and mutuallybeneficial exchanges. There are several universities andprimary schools that divert food scraps to local farms.Rutgers University dining halls divert foodscraps to a nearby farm at half the cost ofsending the waste to landfills.Rutgers University, for example, has been able toimplement a system in its dining halls where food scrapsare diverted to a nearby farm at half the cost of sendingthe waste to landfills.13 The University of California atBerkeley has had similar success in its dining halls.14Once a business relationship is established between theschool and the farm, other exchanges may follow. Forexample, farmers/growers could participate in schoolcareer days at elementary and secondary schools.Students could take field trips to the farm and use thefarm for research or 4-H projects. Diversion may shift commodity demand and reducethe environmental impact. Using food scraps asanimal feed can help reduce food waste while savingfarmers money by reducing the amount they spend oncommodity crop feed and hauling costs.15 The majorityof commodity crops, including over 80 percent of U.S.grains (such as wheat and other cereal crops), corn,and soy, are dedicated to feeding animals.16 Thesecommodities are consumed by domestic and overseaslivestock, poultry, and fish. In the “finishing” phaseof pig growth, during which pigs more than doublein weight, a pig typically consumes 5-8 pounds offeed per day, which takes large amounts of land andnatural resources to produce,17 and growing hogs eat5-6 pounds per day.18 At the same time, the waterfootprint of irrigated soybeans is 2600 square metersper ton.19 Feeding food scraps to livestock could lessenthe amount of commodity crops needed to support thelivestock industry. As more food scraps are recycled foranimal feed, lower amounts of energy, water, and otherLeftovers for Livestock: A Legal Guide for Using Excess Food as Animal Feed 2
resources could be dedicated to growing crops to feedanimals.20 A recent study shows that roughly 4.4 millionacres in the European Union—currently dedicated tothe production of soybeans and grain to feed pigs—could be spared by instead feeding pigs treated,recycled food scraps.21 In particular, significantly lessland would be needed for crop production. This landcould be reforested or used for other agriculture, such asgrowing more diverse crops to feed humans. Additionalenvironmental benefits are realized by diverting foodfrom landfills where it decomposes and emits methane,an extremely potent greenhouse gas.A recent study shows that roughly 4.4million acres in the European Unioncould be spared by instead feeding pigstreated, recycled food scraps.When done responsibly—by ensuring that waste-basedfeed is properly treated, stored, and handled—directingleftovers to livestock has many economical, educational, andenvironmental benefits. For these reasons, EPA promotesthis practice as one of several methods of reducing foodwaste.To provide guidance to food scrap generators, farmers, andother stakeholders interested in using food scraps as animalfeed, the next section discusses federal and state regulationsbearing on animal feed safety. This paper concludes bylaying out a core set of considerations for those interestedin feeding food scraps to animal feed.II. Federal and State RegulationsBoth the federal government and state governmentsregulate the use of food scraps in animal feed by settingrequirements, which largely concern the type of animalsthat may be fed food scraps and the kind of food scraps thatmay be fed to animals. The federal regulations function asa floor, and most state regulations go beyond them. Stateregulations take many different forms and vary widely. Thisguide identifies and analyzes these regulations in orderto provide clarity on this field of law. First, this guide willexamine the federal statutes and regulations on feedingfood scraps to animals, which are encompassed in theSwine Health Protection Act and all of its implementingregulations, as well as the Ruminant Feed Ban Rule, the FoodSafety Modernization Act Rules on Preventive Controls, andFDA regulations regarding adulteration. Next, it will examinethe state statutes and regulations regarding food scraps inanimal feed, and it will describe several types of provisions3 that commonly appear in these state laws. For descriptionsof each state’s law, please consult Appendix A.A. Federal Laws for Using Food Scraps inAnimal Feeda. Federal Swine Health Protection ActThe federal Swine Health Protection Act (SHPA)22 aims toprotect human and animal health by ensuring that foodscraps fed to swine are free of active disease organisms thatcould sicken consuming swine.23 SHPA requires that meatand animal-byproduct-containing food scraps are heattreated in a manner that is sufficient to kill disease-causingbacteria.24 In practice, this generally means that, beforeit can be fed to swine, most animal-based “garbage”25must be heated at boiling temperature (212 degreesFahrenheit/100 degrees Celsius at sea level) for at least 30minutes by someone who holds a valid license or permit forthe treatment of garbage.26SHPA requires that meat and animalbyproduct-containing food scraps areheat-treated in a manner that is sufficientto kill disease-causing bacteria.Food scraps consisting of animal products that wereindustrially processed or rendered need not be subjectedto this second kill-step before being fed to swine.27Industrially processed products are those that have“undergone an industrial manufacturing procedure toprevent spoilage or add shelf stability” and have beeneither cooked to a temperature of 167 degrees Fahrenheitfor at least 30 minutes or “subjected to an industrial processdemonstrated to provide an equivalent level of inactivationof disease organisms.”28 Rendered products include wastematerial derived from the meat or material of any animal(including fish and poultry) and any associated refusethat has been ground and heated to at least 230 degreesFahrenheit to make products such as animal, poultry, orfish protein meal, grease, or tallow.29 Moreover, certaincategories of food scraps are exempted from SHPA’s halfhour boiling protocol: bakery items, candy, eggs, domesticdairy products (including milk), Atlantic Ocean fish caughtwithin 200 miles of the continental United States or Canada,and fish from inland waters of the United States or Canadathat do not flow into the Pacific Ocean.30SHPA also aims to prevent swine from coming into contactwith untreated garbage. Regulations require construction offacilities that prevent swine of all ages and sizes from enteringareas where garbage is handled, stored, transported, orLeftovers for Livestock: A Legal Guide for Using Excess Food as Animal FeedAugust 2016
treated.31 Untreated garbage must be stored in covered,leak-proof containers until it is treated.32 Treated garbagemust not come into contact with untreated garbage or withcontainers or vehicles that were used for untreated garbagebefore disinfection with either a permitted brand of sodiumorthophenylphenate, a permitted cresylic disinfectant,or a disinfectant registered under the Federal Insecticide,Fungicide, and Rodenticide Act with tuberculocidal claimslabeled as efficacious against any Herpes virus.33the use of mammalian protein (i.e., animal tissue) in feedsfor ruminant animals. This ban covers all “ruminants,”meaning animals that have a stomach with four chambersthrough which feed passes during digestion, such as cattle,sheep, goats, deer, elk, and antelopes, among others (Swineand fowl are not ruminants.).37 The regulations apply toany “protein derived from mammalian tissue.”38 The banspecifically lays out the types of products that can andcannot be fed to particular types of ruminants.39SHPA does not regulate direct feeding of household foodscraps to swine grown on the same premises where thewaste was generated.34 Thus, a family farm can directlysupplement the diet of its pigs with its own kitchen scraps,including those that contain unprocessed meat, withoutfirst undergoing the SHPA boiling procedure.(BSE)/Ruminant Feed Ban Rule prohibitsthe use of almost all mammalian protein(i.e., animal tissue) in feeds for ruminantanimals.SHPA sets federal minimum standards but does not preventstates from imposing their own, more stringent proceduresor from flatly prohibiting the feeding of food scraps toany animals, including swine.35 Indeed, many states havelegislated in this space. For more details on state policies,see Appendix A.b. Ruminant Feed Ban RuleThe Food and Drug Administration’s (FDA) Bovine SpongiformEncephalopathy (BSE)/Ruminant Feed Ban Rule36 prohibitsAugust 2016Producers of waste-based ruminant feed must certifycompliance and keep detailed records of inputs andprocesses; they are also subject to inspection by FDA.40 Theregulations require any company or individual that processesanimal products unfit for human consumption or meatscraps to 1) follow specified labeling guidelines indicatingthat the products are not to be fed to other ruminants and2) maintain records tracking the receipt, processing, anddistribution of the products.41 Alternatively, processorscan use manufacturing and testing methods approved byFDA to prevent transmissible spongiform encephalopathyLeftovers for Livestock: A Legal Guide for Using Excess Food as Animal Feed 4
diseases, including BSE.42 Those who intend to separatequalifying protein products from other food scraps aresubject to additional processing and inspection guidelines.43Finally, ruminant-feeding operations must maintain copiesof purchase invoices and labeling for all feeds containinganimal protein products, which may be subject to FDAinspection.44c. The Food Safety Modernization Act PreventiveControls Rules for AnimalsThe Food Safety Modernization Act (FSMA), signed intolaw in January 2011, is a broad reform of U.S. food safetylaws. FSMA vests FDA with authority to develop regulationsthat aim to prevent foodborne illness at the processingstage of food production. One of FDA’s FSMA regulations—Current Good Manufacturing Practice, Hazard Analysis, andRisk-Based Preventive Controls for Food for Animals45—addresses animal food safety.The Preventive Controls rule for animal food is complex, andindividuals in the feed industry may struggle in determiningwhether and to what extent they are subject to the rule.In general, the two most determinative features of therule are the type of (1) food being produced and (2) facilityproducing it.i. Food covered by the Preventive Controls rule for animalfoodThe Preventive Controls rule for animal food regulatesbyproducts of human food production that will be usedas animal food.46 FDA has described such byproducts asportions of processed food that may not be nutritious,suitable, or desirable for human consumption, but that stillmay be a source of energy and nutrition for certain speciesof animals.47 Examples include culls, peels, trimmings, andpulp from vegetable manufacturing/processing; chaff,bran, and middlings from grain milling; wet brewer’s grainsfrom beverage brewing operations; and liquid whey fromdairy facilities.48 This definition embraces food unfit forhuman consumption, which might include animal meat,but recall that the
a candidate for a LL.M. in Agricultural and Food Law at the University of Arkansas School of Law. August 2016 Leftovers for Livestock: A Legal Guide for Using Excess Food as Animal Feed x
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