Nearly 30% of eggs labelled “free range” in supermarkets come from farms where chickens are housed in conditions grossly defying the minimum standards for poultry welfare, according to the peak body representing egg producers in Australia.

The model code of practice for the Welfare of Animals stipulates that the acceptable housing density for free-range birds is 1500 per hectare. But the Australian Egg Corporation notes some 30% of farms labelling their eggs free range stock hens at densities higher than 20,000 per hectare. Although the code was officially endorsed by state and territory ministers for agriculture in 2002, it is unenforceable under law in most places.

“There is no legal definition of free range; there are only expectations over what free range is,” Lee McCosker from Humane Choice, an organisation holding an Australian Competition and Consumer Commission “free range” accreditation, told Crikey. According to McCosker, farmers raising free-range hens and consumer and animal advocate groups Crikey spoke to, there is general a consensus that an even greater proportion of so-called “free-range” producers stock hens at densities ranging from 1500 to 20,000.

“Virtually all the eggs you buy in the supermarkets labelled free range have absolutely nothing to do with that,” Phil Westwood from Freeranger Eggs told Crikey.

In Australia, management for animal welfare falls under the jurisdiction of state and territory governments, but only Queensland and the ACT have incorporated the code of practice into legislation. For all other states the code is unenforceable and remains as merely a set of guidelines. But pathways to prosecution exist in straightforward cases of “substitution” where a farmer has knowingly slapped a “free-range” label on an egg they have taken out of a cage.

In September last year, the ACCC took a South Australian producer — Rosie’s Free Range Eggs — to court for selling 670,000 cage eggs labelled as “free range”. The year before, the ACCC instigated court proceedings against a Western Australian wholesaler which had “labelled and supplied cartons of eggs prominently using the words ‘free range eggs’ when in fact a substantial proportion of the eggs were not free range”.  Each was consequently fined $50,000 under the Trade Services Act.

“We’re not arguing against intensive farms. Just don’t try and call them free range.”

“Our main concern is that we only have this model code standards and it’s voluntary so it’s really difficult for consumer protection agencies to act even if they have evidence eggs labelled as free range come from operations that are well over the model code limit,” said Angela McDougall from Choice Consumer Group.

Stocking density is not the only measure of free range, but McDougall says it is the easiest. Other model recommendations include ready access to the outdoors for at least eight hours a day, adequate measures to protect birds from predators and ensuring the land they are exposed to is not contaminated with poisonous or harmful organisms.

In May last year, Choice conducted a consumer survey that found 93% of participants had chosen free-range products in the previous 12 months, 85% of which flagged animal welfare as being the primary reason for buying free range. Supermarket giant Coles also ran its own research, finding 95% of customers would switch to free-range eggs if the price were lower. Consequently, Coles launched its home-brand free-range eggs earlier this year, priced at $0.6 per 100g (in comparison, Pace Farm Eggs Free Range are $1.11 per 100g, while the Sunny Queen brand goes for $1.00 per 100g). But the home brand eggs come from farms holding 10,000 birds per hectare, which Coles says is “far better than most of Australia’s free-range egg production”.

“The retailers are certainly ahead of industry,” said Lisa Chalk from Animals Australia. “But it’s still much higher than what consumers would expect for free range. We always said we welcome retailers setting a standard and it’s certainly better than what industry is doing, but we believe they should call it something else.”

Last year, the AECL applied to the ACCC for a trademark “free range” certification proposing to bring the definition of free range in line with a stocking density of 20,000 per hectare and under. The ACCC rejected the proposal with concerns that the industry was trying to redefine the standard in order to legitimise unethical popular practices. The ACCC said that 20,000 was “a significant departure from all current free-range egg production and registration standards”.

Crikey understands the ACCC has recently sent out surveys to hundreds of farmers asking them to justify their free-range claims. Westwood of Freeranger Eggs thinks this is a positive step towards reigning in rogue producers taking advantage of lax standards.

“We’re not arguing against intensive farms,” said Westwood. “Just don’t try and call them free range.”

Meanwhile, food labelling amendment bills to bring the model code into state legislation were tabled in the NSW and SA parliaments last year. For now they remain dormant.