Forcing animal cruelty down our throats, literally

Preventing animal abuse is an issue many Californians support. But now 13 states are trying to literally force animal cruelty down our throats. They have sued California over a law that says that if anyone wants to sell eggs here, the hens who lay them cannot be treated cruelly. These states are willing to put profit over animal welfare. But as consumers, we decide what we buy -- and have made that position eminently clear with our laws.

As a policy and legal matter, their argument makes little sense, and the lawsuit has already been lost twice. Missouri and six other states sued California officials over the law in 2014. A judge in Sacramento threw out the case. Then the 9th U.S. Circuit Court of Appeals affirmed and agreed that there was no problem with this law. Yet Missouri now found seven more states to pile on, and they have gone to a different court with the exact same claims.

The states erroneously rely on constitutional doctrines of preemption and commerce clause violations. First, they claim a federal statute, the Egg Products Inspection Act, prohibits California's regulation of treatment of chickens. But that law is primarily focused on federal facilities where there are no "shell eggs" whatsoever, and requires minimal quarterly inspections by shell egg handlers. The EPIA has nothing to do with how birds are kept and cared for. In fact, it expressly leaves such decisions to the states. See 21 U.S.C. Section 1052(b).

Second, the suing states claim California is violating the commerce clause of the U.S. Constitution by discriminating against their egg producers. The discrimination claim is vapid. Every egg producer -- whether in California, Missouri or Vietnam -- must treat hens the same in order to sell eggs in California. Everyone treated equal is the antithesis of discrimination.

Plaintiffs also claim that the law is unconstitutional because eggs might cost a bit more if the hens are treated better. This claim fails for many reasons. As a general rule, the laws require us to spend whatever money necessary to comply -- whether it is registering our car or preventing animal cruelty or any other illegal act. It is no defense to a claim of animal abuse that you did not have the money. Nor does the commerce clause invalidate laws that might make prices go up. The 9th Circuit and other courts agree that the commerce clause is not triggered "merely because a non-discriminatory regulation precludes a preferred, more profitable method of operating in a retail market." Nat'l Ass'n of Optometrists & Opticians v. Harris, 682 F.3d 1144, 1154 (9th Cir. 2012).

The states' accounting is also speculative and selectively ignores the vagaries of agricultural economics. Egg prices fluctuate widely -- and always have -- based on multiple factors completely unrelated to California's law (e.g., extreme weather, disease outbreaks, market and consumer economics). According to the lawsuit's mathematical calculations, the average citizen would pay a whopping $2.68 more each year if these states had to comply with the California humane standards. Missouri was the lead plaintiff in the prior losing suit, and the current one, and even a Missouri editorial board noted, "We'd guess most Missourians would pay $2.68 more a year to eat eggs produced by hens raised in moderately humane conditions, not crammed into cages where turning around is impossible." "Why Did Missouri AG Josh Hawley File an Unnecessary Lawsuit?" Kansas City Times (Dec. 6, 2017).

Most importantly, we should remember the origins of this law. In 2008, more Californians voted for these standards than voted for President Barack Obama. By that vote and the passage of Proposition 2, Californians supported a ballot initiative that described the minimal amount of space that must be allocated to those hens. Cal. Health & Safety Code Sections 25990 et seq. That is the standard adopted by the law the 13 states now challenge.

To understand what it's like for hens who are not afforded the protections of Prop. 2, imagine being jammed with six other people into a small elevator. It's unpleasant and claustrophobic. Now add two more people -- the ones who wouldn't get in because it was too crowded -- who push themselves in so that everyone is in physical contact with a few people and can barely move. Now imagine never leaving the elevator -- for the rest of your life.

That is life for the vast majority -- more than 90 percent -- of the hens in other states who produce the eggs we eat.

Avian scientists repeatedly say that birds have inner lives and suffer pain and stress. So imagine what it would feel like to live in battery cages -- wire contraptions so small that hens cannot flap their wings, lie down, or even turn around. Nine out of 10 egg-laying hens in America (outside of the states that have banned battery cages) live this way. They stand night and day on painful, sloping wire mesh. A report in the Netherlands Journal of Agricultural Science ranked 22 different hen housing systems. On a zero-to-10 scale of animal welfare, battery cages rate as 0.0. And they are bad for people, too. Eggs from battery hens are the leading cause of human Salmonella infection, which kills more Americans than any other foodborne illness.

It's a simple concept. Californians have made it clear that they do not want to eat or buy eggs that are the products of animal cruelty. California laws repeatedly emphasize our right to prevent the products of cruelty from being sold in our communities. Just two months ago Gov. Jerry Brown signed Assembly Bill 485 (Health & Safety Code Section 12234.5), which will (as of 2019) prohibit pet stores from selling dogs, cats and rabbits produced and raised in cruel conditions. Just like with the hens, we have determined that there are serious health and welfare problems with how pets are being raised. And that we don't want those "products" of animal cruelty sold here.

Thirteen states want to import animal cruelty into California. Hopefully the unlucky number of plaintiffs presages a quick end to this misguided effort to stop the progress of humane legislation -- in California and around the world.