States Seek 9th Circuit Relief on Calif. Hen Law

(CN) - Six feather-friendly states urged the Ninth Circuit to revive their challenge of a California law on hen-cage sizing that has already contributed to a rise in egg prices.

Proposition 2, which California voters was passed in 2008, requires that farmers keep egg-laying hens in cages large enough to let them stand up, lie down, turn around and spread their wings.

An amendment that extended the law's reach to poultry farms that ship eggs into California prompted a federal lawsuit from Missouri, Nebraska, Oklahoma, Alabama, Kentucky and Iowa.

Alleging interference with interstate commerce, the Breadbasket and Dixie states complained that their farmers an unfair choice of having to either build larger habitats for their hens or lose money by no longer selling eggs in California.

U.S. District Judge Kimberly Mueller in Sacramento dismissed the lawsuit last year after finding that the states lacked legal standing because they only represented egg producers without showing that California's rules would harm their citizens.

Since the law took effect in January, the U.S. Department of Agriculture has reported that wholesale egg prices in May and June and into July were sharply higher than the previous year.

Compounding Prop. 2's role in the uptick, an outbreak of avian influenza killed more than 48 million chickens and turkeys in 15 states in the first six months of the year.

The states suing California appealed the dismissal of their case to the Ninth Circuit in March, arguing that they had sufficiently demonstrated that their citizens would suffer economic consequences as a result of the law.

In a July 30 follow-up brief, Missouri Attorney General Chris Koster argued that the states would be able to show standing if given a chance to amend their complaint.

The brief cites the doctrine of parens patriae, a Latin phrase that translates to "parent of the fatherland," which lets states intervene on behalf of those citizens who are in need of protection or help.

Even if the states did not have standing when they first filed their complaint nine months before the egg law went into effect, they can establish standing now that the law has been in effect for more than seven months, Koster said.

"Imposing new regulations on the quality and condition of shell eggs - regulations different from and in addition to the uniform national standards mandated by Congress under the Egg Products Inspection Act - the Shell Egg Laws threatened the livelihoods of grocers, bakers, and restaurant owners in plaintiff states," the brief states.

Koster says the Shell Egg Laws also threaten the well-being of consumers, especially those for whom eggs were the least expensive and most readily available source of protein, the attorney general said.

"Finally, the Shell Egg Laws threatened our citizens' right to participate in representative government," the brief states. "By conditioning the sale of shell eggs within California on producers' voluntary discontinuation of certain production methods employed legally (and now exclusively) outside California, the Shell Egg Laws have the practical effect of regulating conduct within plaintiff states' borders." (Emphasis in original.)

This does more than harm the individual farmers who have to make changes, it "usurps the democratic authority of our people as a whole by supplanting our public policy preferences with the priorities of California legislators we did not elect and cannot vote out of office," Koster said.

The attorney general pointed to a ballot initiative passed in Missouri, the "Missouri Right to Farm Amendment," which added to the Missouri Constitution that "the right of farmers and ranchers to engage in farming and ranching practices shall be forever guaranteed in this state, subject to duly authorized powers, if any, conferred by article VI of the Constitution of Missouri."

The fact that a majority of Missouri voters passed this amendment specifically to prevent their state from adopting legislation like California's new egg laws should cast doubt on the trial court's assumption that the lawsuit was brought only on behalf of the state's egg farmers, Koster said.

The six states involved in the lawsuit have sold an estimated average of 2 billion eggs in California each year, about 22 percent of the 9 billion eggs consumed in California.

U.S. Department of Agriculture reports shows that egg production in California has dropped significantly since the new law took effect.

Approximately 311 million eggs were produced in California in April, a decrease of 78 million from April 2014, according to the report.

Rather than spending money on building new facilities, many farmers cut back the number of chickens they house in one building to comply with Prop. 2, decreasing overall egg production.

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