In a case that could affect farmers and consumers nationwide, six states are back in federal court to challenge a California ban on the sale of eggs from hens kept in cramped cages.
The governor of Iowa and the attorneys general of Missouri, Nebraska, Oklahoma, Alabama and Kentucky filed a notice Oct. 24 that they will appeal a U.S. district court’s dismissal of their case. They had argued that the law forces farmers in other states to make costly changes in their operations and violates the U.S. Constitution.
“We don’t want a trade war in America but we think that California is dead wrong on this,” said Iowa Gov. Terry Branstad, a Republican. Iowa is the country’s top egg-producing state.
“In Alabama, consumers are free to make their own choice of which eggs to buy at their grocery stores, and it is preposterous and quite simply wrong for California to tell Alabama how we must produce eggs,” Alabama Attorney General Luther Strange said in a statement. “If California can get away with this, it won’t be long before the environmentalists in California tell us how we must build cars, grow crops, and raise cattle, too.”
In 2008, California voters approved a ballot initiative, Proposition 2, prohibiting the state’s farmers from confining hens in a way that prevents them from turning around freely, lying down, standing up and fully extending their limbs. Two years later, California lawmakers banned the sale of eggs—from any state—that have been produced by hens in conventional or “battery” cages.
Battery cages provide each hen an average of only 67 square inches of floor space, smaller than an 8x10 sheet of paper. The 2010 law, which goes into effect Jan.1, cites the increased risk of salmonella from birds in large flocks in confined spaces.
About 95 percent of eggs in the U.S. are produced in battery cages. Farmers brought hens inside to battery cages in the 1950s as a way to reduce disease and produce a cleaner egg than those from barnyard chickens that pecked in filth. But animal welfare advocates, including the Humane Society of the United States, which pressed for Proposition 2, have long maintained that battery cages are cruel because hens are unable to behave naturally.
The Pew Commission on Industrial Farm Production’s 2008 report, “Putting Meat on the Table: Industrial Farm Animal Production in America” recommended the phaseout within 10 years of all intensive confinement systems, including battery cages. (Pew funds Stateline.)
Language from the U.K.
The language of California’s 2008 ballot measure echoed a 1965 United Kingdom report that advocated Five Freedoms for farm animals: to turn around, lie down, stand up, stretch and groom without restriction of movement. The European Union banned battery cages in 1999 with a phaseout period of 12 years.
“What farmers and ranchers need to recognize is that consumers are demanding higher animal welfare,” said Joe Maxwell, a farmer himself, former lieutenant governor of Missouri and a vice president of the Humane Society of the United States.
Some consumers are willing to pay higher prices for such products, Maxwell said.
But Blake Hurst, a farmer and president of the Missouri Farm Bureau, said he worries about people who may care about animal welfare but can’t afford to pay a higher price for eggs.
“That’s the person who doesn’t get a voice,” he said.
Plus, said Hurst, it’s not hard to imagine other states taking protectionist steps. Missouri grows grapes without irrigation for wine, for example. It might decide to prohibit imports of wine from grapes grown with irrigation, as in California, he said.
A Level Playing Field
In passing the 2010 law, California legislators wanted to protect California egg producers from being unfairly disadvantaged by out-of-state competition. It had become clear that complying with the 2008 requirements would cost California farmers more than out-of-state producers’ operations, so the law was extended to cover all eggs sold in the state, including those from other places.
Now Missouri farmers, who export one-third of their eggs to California, must decide whether to invest more than $120 million in new henhouses to conform to California’s law or stop selling to the largest egg market in the country, said Missouri Attorney General Chris Koster. The states filing the lawsuit claim California violated the commerce clause of the Constitution by requiring out-of-state farmers to meet production requirements.
U.S. District Court Judge Kimberly Mueller ruled Oct. 6 that the officials lacked legal standing to bring the lawsuit, because the law affects only the subset of farmers who are not planning to comply with California’s law.
Other States Act
Meanwhile, some other states are following California’s lead. Three states—Michigan, Oregon and Washington—have passed laws mandating more space for hens, and Ohio has banned the construction of new battery cages. Lawmakers in New York and Massachusetts also have considered bills. A proposal for a national standard for laying-hen cages was dropped from the 2014 farm bill.
While the six-state appeal makes its way through the court, egg producers around the country are scrambling to meet California’s requirements by Jan. 1. The 2010 law did not specify what size or type of cage is acceptable, which has led to confusion. Many in the industry believe the EU standard of 116 square inches per hen is about right. That provides each hen space slightly smaller than a sheet of legal paper, which is 8.5x14 inches.
“We’re in new territory,” said Dermot Hayes, an agricultural economist at Iowa State University, who estimates that 40 percent of the laying hens in Iowa will be killed to make room for the new henhouse space requirements for the California market by Jan. 1.
“Egg prices will go up everywhere – California, too, for a while,” Hayes predicted. Then, egg producers will build new barns and raise production and prices will settle down.
“It’s a sea change,” said Jill Benson, a fourth-generation egg farmer in Modesto, California, who started researching cages soon after Proposition 2 passed. Her family company, JS West & Companies, became the first in the country to choose “enriched colony” cages. These are the standard in the EU and are approved by the American Humane Association, a different group from the Humane Society of the United States.
About 150,000 of Benson’s 1.8 million hens live in enriched colony, also called furnished colony, cages. One cage typically houses 60 hens with each getting 116 square inches of space. The cages are outfitted with perches, a nesting box for laying eggs in private and space to stretch, perch and groom.
“We have been very pleased to see they can do all those behavioral things” listed in Proposition 2, she said. “We are compliant.” To show consumers how well the hens are treated, Benson has installed six video cameras in the henhouse that provide 24-hour Hens Live feeds online.
Is Cage Free Healthier?
Besides battery and enriched colony cages, some hens live in cage-free and free-range settings. Cage free typically means hens can move around the house and outside, if they wish. Free-range hens live mostly outside. The Humane Society is calling on California egg producers to go cage free.
“What level of animal cruelty do we want to tolerate?” said Paul Shapiro, vice president for farm animal protection at the Humane Society.
So is cage free best for hens? Again, there’s disagreement.
“Hen health is better in cages and worse in cage free,” said Joy Mench, professor of animal science at University of California Davis, who has done extensive research into hen housing. Enriched colony settings offer the protection of the cage from predators and give hens more opportunity to act like hens, she said.
The mortality rates for cage free are double those of conventional and enriched colony cages, in part because cage-free systems tend to house very large groups of hens, and that leads to cannibalistic behavior.
“I’ve seen some really awful cage-free systems that are without the things hens need,” she said, adding that amenities like perches, foraging areas and nesting boxes may be more important to hen welfare than cage size.
As for egg safety, both sides cite academic studies about cages and salmonella. The first federal study comparing hens in three commercial housing systems—cage free, conventional and enriched colony—found no difference in the rate of salmonella infection.
“I can’t really tell them I have a silver bullet,” said Deana Jones, research food technologist in the Egg Safety and Quality Research Unit of the U.S. Department of Agriculture Agricultural Research Service, who led that study and others.