California

Who Can Put Suit Challenging Cali's Egg Law Back Together Again?

The answer? Farmers.

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Eggs
Luisfi / Wikimedia Commons

Last week a federal court in California threw out a multi-state lawsuit challenging California's looming egg production rules. Earlier this year, attorneys general in six states challenged the California rules, which apply to farmers in other states, including theirs.

The lawsuit, as Food Safety News puts it, "argued that California was not acting to make food safer nor animals healthier, but to advance its own purely commercial interests."

Specifically, the California law, set to take effect next year, would require egg producers within and without the state to house egg-laying hens in cages or other enclosures that permit the hens to stand, lay down, turn around and fully extending their wings.

The state attorneys general argued that California was legislating in other states, in direct violation of the Constitution's Commerce Clause.

In her ruling, U.S. District Judge Kimberly Mueller doesn't dispute that argument. In fact, her decision clearly contemplates a way forward for egg farmers to challenge the California law. Judge Mueller is pretty clear that egg farmers—and not governments of states where egg farmers raise hens—have standing.

"Plaintiffs' arguments focus on the potential harm each state's egg farmers face," Judge Mueller writes in her decision. "The alleged imminent injury, however, does not involve an injury the citizens of each state face but rather a potential injury each state's egg farmers face when deciding whether or not to comply with" California law.

But Judge Mueller ruled that "the states did not prove California's law would hurt their citizens, only some egg producers."

In short, the wrong people made the right arguments.

I have no problem with the standing rule, which requires a party that is suffering or might suffer injury to sue. I also support farming practices that treat animals that provide us with (or are turned into) food with respect. I actively seek out cage-free eggs. I also oppose so-called "ag-gag" laws.

But I also oppose California's efforts to tell its own farmers—and certainly famers in other states—how to raise their hens. And I oppose such rules even if those provisions—such as those that apply to farmers in other states—are probably unenforceable. This hypothetical illustrates that fact:

California inspector: Hi, Iowa poultry farmer. I'm from California's agriculture department. Lovely farm you have here. I'd like to see inside your barn.

Iowa farmer: Get off my farm.

California inspector: How big are your hen enclosures?

Iowa farmer: Piss off.

California inspector: Well, okay then.

If California may dictate standards for raising animals in other states, then any state—in keeping with the hypothetical, let's say Iowa—could pass a law that prohibits, say, farmers from raising crops in drought-stricken areas. The justification? It's not a good use of water, and water should be conserved (rather than exported in the form of produce) in times of drought. Since California is in the midst of a decade-long drought, then that rule would effectively bar California crops from Iowa. If a handful of other states followed, then the rule could doom California agriculture—including, for example, the state's enormous wine industry.

The Constitution was established, in part, to prevent states from enacting laws like these. Here, the Constitution is supposed to prevent states from acting like petulant children.

"To put it simply, it has been the genius of the American system that we have free trade between states," wrote Blake Hurst, a Missouri farmer, in a piece on California's egg law in the American Enterprise Institute's online magazine earlier this year.

But California's egg law (along with its foie gras ban) violates that constitutional mandate of free trade.

So what now?

Advocates of laws requiring larger hen cages are pleased with the ruling.

"We are delighted that Judge Mueller has dismissed this baseless lawsuit, and ordered that it can never be filed again," says Paul Shapiro, vice president of farm animal protection with the Humane Society of the United States, which joined the lawsuit in support of the California law, in an email to me earlier this week. "The Judge's opinion not only found that Attorney General Koster and the other attorneys general do not even have standing to file their case, but that their entire theory for why California's food safety and hen protection law will harm egg farmers is totally without merit."

The states may appeal—though because the judge barred them from doing so, they'd first have to appeal their lack of right to appeal.

Missouri AG Chris Koster, who first filed the lawsuit in February, says the state is now weighing its options. Iowa's agriculture secretary said his state is doing the same.

It doesn't appear the most likely substitute litigant will sue. Chad Gregory, president and CEO of the United Egg Producers, indicated in a statement emailed to me this week that his group sees the law as likely to take effect.

In the statement, Gregory notes that UEP "remains concerned about the impact of these laws and regulations," but notes that the cooperative, which represents the owners of 95 percent of egg producers nationwide, but that the group "will continue to be a resource for egg farmers and for our stakeholders as this process evolves and as the laws and regulations take effect." (emphrasis mine)

Why didn't UEP–—which certainly represents the right people—join the lawsuit when doing so may have made the standing issue largely irrelevant?

Professor Pamela Vesilind of University of Arkansas Law School calls the decision of literally every interested party in the country not to join the lawsuit a "fundamental mistake." Fundamental, yes. But not fatal.

So who might sue?

A smaller group, the National Association of Egg Farmers, opposed the California law and supported the lawsuit.

"Legislating new requirements on egg farmers will force smaller, family farms out of business," notes the NAEF.

Another possibility? An aggrieved individual farmer like Missouri's Blake Hurst.

I wrote a column supporting the lawsuit's reasoning and goals shortly after it was filed. I still feel the same about its merits.

Farmers can and should stand up for their rights. This temporary setback doesn't change that. In fact, it only serves to emphasize that point.

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  1. Hit em up JD I say hit em up.

    http://www.Ano-Web.tk

    1. Hit em up JD I say hit em up.

      This is Linnekin, not Tuccille, anonbot. Try to keep up!

  2. She’s got eggs,
    She knows how to use ’em….

  3. “Specifically, the California law, set to take effect next year, would require egg producers within and without the state ”

    This is not in a sense accurate. The California law bars the sale of eggs within California that do not meet the standards. A Missouri farmer can produce eggs anyway he or she wants, they just cannot sell them in California if they violate these standards. The farmers are arguing that California is such a big market it has the practical effect of what the article states, but that’s not quite the same thing.

    “The Constitution was established, in part, to prevent states from enacting laws like these. ”

    I appreciate that argument, and I don’t care for coercive measures like these (though I think libertarians often disagree on animal welfare laws which all involve some restriction on trade or property use), but I am not sure all state legislation that impacts trade in some way is unconstitutional. For example (an over the top one for contemporary times for sure), under the author’s logic a state could not forbid the sale of products of child or slave labor.

    1. What if they pass a law all produce sold in the state must be ‘organic’?Can they ban fruits and veggies from other states?Don’t think that can’t happen,it’s for the children.

      1. or ban all fur or cigs or sugary drinks

        1. and let’s not forget veal

    2. This is clearly the type of restraint of trade that the commerce clause was intended to prevent.

      So of course the modern left and the courts will let it stand as the CC has been twisted to mean everything and nothing.

      1. “This is clearly the type of restraint of trade that the commerce clause was intended to prevent.”

        1. I’m not sure. They seemed to be thinking of protectionist type laws at the state level. This is a ‘morals’ law, like barring the sale of alcohol or out of state lottery tickets from outside the state. That has a pretty long history.

        2. Even if it were, it’s not clear the Commerce Clause was meant to be used according to judicial enforcement of a ‘dormant’ commerce clause rather than empowering Congress to deal with such state measures.

        1. As far as 1. goes, it is always possible to masquerade protectionist laws as being for some “moral” reason. This is already done for many other kinds of laws that progressives push.

      2. Nothing of the sort. The ICA is there to prevent one state from preventing or restricting commerce across their borders. SC can outlaw NC cotton in their own state but cannot prevent cotton from NC getting to GA through its borders in order to make SC cotton more financially attractive in GA. Alabama can outlaw dildos for its own citizens, but it cannot prevent dildos from being transported through the state from one dildo legal state to another.

    3. “This is not in a sense accurate. The California law bars the sale of eggs within California that do not meet the standards. A Missouri farmer can produce eggs anyway he or she wants, they just cannot sell them in California if they violate these standards.”

      Even if it’s legal, it’s still totally shit-headed.

      Yeah, the rest of the country wants California’s food standards imposed on the rest of them–like California imposes its stricter emissions standards on the rest of the country?

      Yeah, right.

      And what’s the point of this rule, anyway? To improve the quality of life of chickens?!

      If consumers in California care about that, there’s probably a Whole Foods Market somewhere near them. Do you realize what this is going to do to the price of eggs for poor people?

      Even if this is legal, it’s asinine.

      1. “Yeah, the rest of the country wants California’s food standards imposed on the rest of them”

        My point is the only sense they’re ‘imposed’ on anyone out of state is to the extent they want to sell their products in California.

        1. You don’t seem to get that Sacramento sees its ability to impose itself outside the state as a big feature.

          They’re doing the same kind of thing with emissions controls–there are bikes motorcycle companies won’t bring to the United States because of California’s stupid emissions laws.

          Even on bikes that could and would pass California’s stupid emission standards, it’s so expensive to go through and test all of that stuff, that it doesn’t make sense for smaller series specialized bikes–so consumers throughout America never get access to them. Thanks California!

          On some of them, no doubt, the manufacturers could decide to sell them everywhere but California, problem is that it tarnishes the brand and pisses off customers when they a) move to California or b) sell the bike to someone in California.

          And when you go try to register a bike in California that hasn’t cleared emissions testing in California? They send you home with temporary registration, and in a couple of weeks you get a letter in the mail telling you that your bike isn’t registered, never will be registered, and then they give you 30 days to give them proof that the motorcycle is no longer physically within the borders of California–or they start fining you!

          1. This is just one example of many ways in which California tries to do this. Sacramento is clearly trying to impose itself on the rest of the country, and just because you’ve pointed out the means of their coercion doesn’t mean the effects of their disgusting polices aren’t coercive.

            No regulation without representation!

      2. Do you realize what this is going to do to the price of eggs for poor people?

        These are the same people who feel that raising the minimum wage will magically cause employers to pay young and inexperienced workers more than they can produce.

        1. If they’re economically illiterate, I can see how they would make a mistake like that.

          Artificially raising the price of eggs on poor people is plain mean. No economic illiteracy involved, you have to hate people to do something like that.

          Maybe it’s not hate–I guess it’s more like contempt. Maybe the lawmakers hold the poor beneath contempt. Who gives a shit if the poor have to pay twice as much for eggs? …the important thing is that the chickens are happy?

          This chicken thing was a PETA marketing campaign. It was meant to drive donations–not to drive policy! …not to make poor people hate PETA. Their shooting themselves in the foot.

          1. I don’t think it’s contempt or hatred, it’s just a lack of thinking.

            In my state there is a price floor on milk. Go across state lines and milk is a dollar less a gallon.

            This is to help dairy farmers. Talk about it in terms of how it hurts the poor, and the response will be “Why do you hate dairy farmers? Why do you want local dairy farmers to be put out of business by teh corporations? You just want to help teh rich!”

            1. The damn progressives would eat poor babies if they could.

              1. I have A Modest Proposal about that.

                Jonathan Swift

      3. If consumers in California care about that, there’s probably a Whole Foods Market somewhere near them. Do you realize what this is going to do to the price of eggs for poor people?

        Actually, Whole Foods here has cage free eggs that are the same price as the “regular” eggs at other supermarkets. The “regular” eggs go for about $2.30-$2.60 per dozen large eggs and they charge $3.99 or more for cage free. Whole Foods sells the cage free eggs for $2.59 for a dozen large eggs.

        1. Whole Foods has a relatively narrow distribution channel completely devoted to that shit, and their profit margins (at about 3%) are much higher than your average grocery store. Whole Foods typically tries to keep the price of staples like eggs and milk competitive with regular groceries–and generates much of their profit from more specialty items and house brands.

          You’re not trying to suggest that cage free is somehow cheaper than the alternative, or that the price of eggs won’t go up for consumers if farmers are forced to go cage free, are you?

          Point remains, if consumers want cage free, they can go buy that. This is an attempt by California to force consumers to do something they don’t want to do. We know that because consumers keep not choosing cage free. Isn’t that right?

          1. I mean, if cage free is so cost competitive at scale, or if consumers care so much about the chickens that they don’t mind paying extra, then there’s no need for the regulation, is there.

  4. How is this a new issue? California has been doing this for decades in the guise of emissions standards and engines. If they can do it for that, then they can do it for this.

    Nevertheless, California is nuts. The wealth of Silicon Valley and the farmers enabled the hippies to enact their insanity.

  5. Free trade between the states was why the commerce clause was written.Not to stop someone for growing wheat for their own use.We’er doomed.

  6. This isn’t even advancing the cause of animal rights.

    There are certain things animal rights organizations do to get into the news and make people think–like when PETA sued the California Milk Advisory Board for false advertising because their ads claim that “Happy come from California”.

    PETA just does stuff like that for the headlines. It’s free advertising for their cause when the news services pick it up; suddenly people are commenting about animal rights on blog everywhere…which is exactly what organizations like PETA wants.

    The funny thing about California is that the Democratic Party there takes the shit these groups say seriously! The government of California is so easy to troll! It’s like when they shut the water off during a drought to save a fish species that had already been extinct!

    You can troll the idiots that run California’s government into doing practically anything!

    1. “Like when PETA sued the California Milk Advisory Board for false advertising because their ads claim that “Happy [cows] come from California”.

      Fixed!

      https://www.youtube.com/watch?v=IyNpEqTM9sY

    2. This is all true. PETA has no actual interest in helping animals.

      Case in point: PETA raised a shitstorm over the “mistreatment” of the horses on the HBO show Luck and effectively got it canceled. (It had already been picked up for a 2nd season before that.) 1 of 3 horses used on the show’s teaching segments died in an unpredictable freak accident. The other 2 had to be put down despite every precaution being taken to make sure they were healthy, sound, & fit for the very light shooting schedules. (No horse could run more than half a track length per day & only a maximum quarter-track segment at a time.) Horses die with alarming frequency in horse racing. The safety standards on set were much higher than for active race horses.

      1. The horses used on Luck were mostly retired race horses that had nowhere to live. Their legs were inspected before and after every shooting day to test for possible bone weakness that could lead to accidents. The people working with the horses–by every account except the anonymous person’s who tipped PETA off–loved the animals and took great care of them.

        And after the show was forced off the air? PETA displayed no interest in helping the retired, now homeless horses find homes. (No interest in the handlers fired, either.) They provided no help at all, because they got what they wanted: publicity for PETA.

  7. how about kosher food?

  8. My wife and I have been discussing keeping chickens or ducks, or both, in the backyard. We had figured that we probably could not produce our own eggs for less than we can buy them. Costco sells eggs pretty damn cheap. However, if prices go up significantly, then the economics of the situation changes.

    BTW, butter is over $4/lb. for Pete’s sake.

    1. I don’t have enough room to keep cows. I might have enough to keep a pig or 2.

      1. Damn roosters are loud.

        …and if you don’t buy one? The dominant hen starts acting like a rooster.

        1. You don’t need roosters, and you rarely get a hen acting like a rooster in any significant way. Hens in general can be aggressive to new birds, but not something to fret over.

          Keeping your own chickens definitely doesn’t lower your egg costs unless you can free range 50%+ of their diet. Selling eggs for profit is very tough. I get new batches of chicks at least once per year, and sell off part of those as they age and my oldest hens each year to keep laying numbers up and cut my costs.

    2. But if you add a rooster and raise chickens as well you not only get eggs, you get chickens which are also tasty. Then you start coming out better than even.

      Unfortunately you can’t get milk from a chicken so it’s no help with your butter situation.

  9. First, Petaluma will once again become the egg capital of California. Second, Texas, New Mexico, Arizona, Nevada, and Oregon will pass a law requiring all travelers from California wear a cowboy hat, chew tobacco, and say “howdy”, “y’all”, and “fixing to”.

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