Hen Treatment Labeling Not Needed on Eggs, Ninth Circuit Rules

SAN FRANCISCO (CN) – The Ninth Circuit ruled Monday that federal agencies acted reasonably when they denied petitions by animal-rights groups to label egg cartons based on how hens are raised.

The ruling affirmed the District of Northern California’s 2014 grant of summary judgment in favor of the Food and Drug Administration, the Federal Trade Commission, the Food Safety Inspection Service and the Agricultural Marketing Service.

Animal Legal Defense Fund attorney Kelsey Eberly expressed disappointment with Monday’s decision.

“The court’s decision leaves the public in the dark regarding the cruel confinement of egg-laying hens and consumers at the mercy of dishonest egg marketers,” she said in an interview.

Compassion Over Killing and the Animal Legal Defense Fund sought a court order in 2013 directing the agencies to commence rulemaking after each one denied their petitions to label egg cartons as “free-range,” “cage-free” or “eggs from caged hens.”

The groups said the government acted in violation of the Administrative Procedure Act, which governs the way federal agencies propose and establish regulations, when it rejected their petitions.

They argued that egg carton labels featuring images or phrases that suggest hens are raised outdoors with space to move freely are misleading when the hens are in fact raised in restrictive cages.

According to the groups, approximately 95 percent of hens spend their lives in cages with four or five other birds. The tight space prevents the hens from stretching their wings and raising their heads, and osteoporosis from lack of movement is common.

A federal judge ruled in 2014 that courts must defer to an agency’s decision not to initiate rulemaking, and that the four agencies had acted reasonably when they denied the groups’ petitions.

In affirming the district court on Monday, the Ninth Circuit also deferred to agency discretion, siding with the FDA’s decision to go after individual egg producers instead of issuing new egg-labeling regulations.

It also said the FDA possesses discretionary authority to issue regulations to enforce the federal Food, Drug and Cosmetic Act, which prohibits the sale of misbranded food items.

“The decision to take enforcement action against misbranded eggs on a case-by-case basis, as opposed to promulgating regulations that would apply to all egg producers, is left to the broad discretion of the FDA,” wrote U.S. Circuit Judge Mary Murguia in the court’s 14-page opinion.

The three-judge panel did find, however, that the FDA “barely met its low burden to clearly indicate that it considered the potential problem identified in plaintiffs’ petition, and provide a reasonable explanation for not initiating rulemaking.”

“The FDA could have better addressed plaintiffs’ evidence of misleading representations that appear on egg cartons to demonstrate that the agency fully appreciated one of the primary bases for plaintiffs’ rulemaking petition—that information concerning egg-laying hens’ living conditions is necessary in order to correct the affirmative representations that frequently appear on egg labels and convey misleading information,” Murguia wrote.

However, the panel said that the FDA’s denial letter to the plaintiffs did show that the agency had considered their evidence.

“Because the FDA is generally free to choose its procedural mode of administration and prioritize agency goals, we see no reason to remand the matter to the FDA to reconsider plaintiffs’ petition in this case,” Murguia wrote.

Similarly, the court held that the Federal Trade Commission had reasonably denied the plaintiffs’ petition based on its discretion to remediate misleading egg labels through ad hoc enforcement proceedings.

It also agreed with the FTC that the evidence the groups had submitted didn’t show that egg labeling practices are either “unfair and deceptive” or “widespread.”

In addition, the Food Safety and Inspection Service and the Agricultural Marketing Service had correctly concluded that they couldn’t issue the groups’ proposed regulations because they lacked the authority to do so under the Egg Products Inspection Act and the Agricultural Marketing Act of 1946, according to the panel.

Eberly said the plaintiffs are assessing their next move, including going to the Supreme Court. In the meantime, she said they’re currently litigating similar cases over egg industry transparency and intend to file new ones.

“We are undeterred,” she said. “We’re not going to let this loss hold us back.”

The plaintiffs were also represented by Monte Cooper with Orrick, Herrington & Sutcliffe in Menlo Park.

The government was represented by Justice Department attorney Jeffrey Sandberg in Washington.

Both Sandberg and a Justice Department spokeswoman declined to comment on the decision Monday.

Circuit Judges Marsha Berzon and Michael Hawkins also sat on the panel.

 

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