Why you should care
Whether you love bacon or pigs more, the outcome of this lawsuit will have effects far beyond the breakfast table.
Pooja Bhatia is an OZY editor and writer. She has written for The Wall Street Journal, The New York Times and the Economist, and was once the mango-eating champion of Port-au-Prince.
O, California. State of low emissions but too many cars, of latent faults and giant trees, of sun-kissed stars and prescription weed; look what those hippies are doing now.
They’re trying to save the chickens.
A law that would ban the sale of eggs laid by hens confined in tiny cages has caused a tizzy thousands of miles east. In February, Missouri filed a request for an injunction against the law, AB 1437, which is set to take effect in 2015. Since then, four other states have signed on; last week, the governor of Iowa did, too. All of them argue that the law violates the Constitution’s commerce clause.
Midwestern agribusiness is clearly ruffled, and beware, friends of hens: These guys have stronger legal chops than the goose-liver dealers who tried and failed to mount a constitutional challenge to California’s foie gras ban. California’s massive egg market isn’t the only thing at stake. The outcome will affect the future of animal welfare, ethical consumption, big farming and, yeah, the price of bacon.
Need we say an appeal is likely?
Switching to larger cages would raise California egg prices and push cost-prioritizing consumers to choose cheaper eggs from out of state.
In 2008, Californians passed Proposition 2, banning the confinement of hens in battery cages, wiry boxes that are smaller than a sheet of printer paper. And they passed it by the largest margin California’s referendum system had ever seen, says Joe Maxwell, a vice president of the Humane Society of the United States: a resounding vote against animal cruelty.
But the state’s poultry farmers fretted. Switching to larger cages would cost them millions in capital investment. It would push California egg prices up, while pushing cost-prioritizing consumers to choose cheaper eggs from out of state. (Currently, California is the largest market for eggs in the country, and Iowa is the largest egg producer.) So in 2010, California’s legislature enacted AB 1437, which bans the sale of any eggs, no matter their provenance, laid by battery-caged hens.
The law cites public health reasons, and some studies have linked the welfare of people to that of the chickens who lay their eggs, especially when it comes to Salmonella. But other motivations played a role, too, including concern for the welfare of animals and a desire not to put California’s egg producers out of business.
The law’s intent isn’t an idle question; it could determine whether AB 1437 withstands legal challenge. Missouri et al. argue that the law violates the commerce clause, which is typically interpreted to forestall protectionism: States can’t discriminate against other states’ business, and they can’t burden interstate commerce without good reason.
Protecting local farmers from cheap eggs wouldn’t pass the test. Protecting consumers from illness-causing bacteria such as Salmonella would have a better shot.
Isn’t preventing animal cruelty a good enough justification? Unclear. California’s ban on foie gras, enacted to protect geese from being force-fed, easily withstood commerce clause challenges.
But the egg law portends greater national consequences than the foie gras ban. The plaintiffs in Missouri et al. v. Harris argue that because California is such a huge market for their state’s eggs, the law amounts to an undue burden, and their farmers will face an unfair penalty. According to the most recent version of their complaint, which OZY obtained, Missouri farmers export a third of their eggs to California. If the law is enacted, they will have to choose between investing more than “$120 million in new henhouses or stop selling in California.”
The complaint foresees a chain of unwanted effects. If Missouri farmers invest in larger cages, their eggs will become too pricey to export to other, non-California markets. But if they don’t invest, they’ll flood state markets with hundreds of millions of surplus eggs, leading egg prices to crash.
The lefty animal welfare people are using a states’ rights argument, traditionally the bastion of the right.
The family farmers of Iowa, Missouri and Nebraska will surely face tough choices if the law stands, but they’re not the main Humpty Dumpties of this lawsuit. Big agribusiness stands to lose the most from the enactment of AB 1437, and observers note that agribusiness has a good deal of influence in Midwestern state politics. The man who spearheaded the suit, Missouri Attorney General Chris Koster, has designs on the Missouri governor’s mansion.
Supporters of the law, on the other hand, will likely rely on a states’ rights argument. “States have the right to protect their citizens,” says Maxwell, of the Humane Society. “There’s plenty of precedent on that; it’s a fundamental constitutional right.”
In other words, the lefty animal welfare people are using a states’ rights argument, traditionally the bastion of the right. Meanwhile, the conservatives are attacking the law with the commerce clause, usually a liberal workhorse.
It’s a nifty turnabout, perhaps another instance of what Maxwell calls “the California influence.” We like to call it a legal scramble.