Edging Away From Cruel Eggs: Part 2—Slogging Toward Enactment

Read "Edging Away from Cruel Eggs: Part 1 - California’s Prop 2"

California’s Propostion 2, “Standards for Confining Farm Animals” passed in 2008, but the fight against it didn’t stop with its passage.  The forces aligned against it included many of the country’s top egg producers and their minions   “Egg producers” refers to the gigantic corporations that sell eggs and egg products.  It is a very misleading term.  I’m very sure that not a single one of the guys who run these companies has personally produced an egg, ever.  Egg production is really the job of the millions of caged chickens in their enormous “production facilities”.  And I don’t suppose that any of those guys resemble the image of the stereotypical farmer either.  They most likely spend their days behind a desk or at a boardroom table, and are about as likely to look like Old MacDonald as a giant chicken confinement building looks like a red mansard-roofed barn with a crowing rooster on top. 
 
Battery Caged Hens (Maqi~commonswiki)
In the previous post on this topic I talked about how in February of 2008, nearly eight hundred thousand California voters submitted signatures in favor of putting the proposition that would become Prop 2 on the Election Day ballot.  It prohibited “the confinement of farm animals in a manner that does not allow them to turn around freely, lie down, stand up, or fully extend their limbs.”  While the measure freed pigs and calves from confining crates, it also got chickens out of battery cages—it was the first legislation, ever, to end the abuse of chickens.  Then, after a vigorous campaign by both the proponents and opponents of the measure, it was approved in November, 2008 by 63.5% of those voting.

The proposition gave “egg producers” more than six years to prepare for the implementation of the law.  Many of them immediately started looking at what they needed to do to meet the guidelines provided in the new law and how they could accomplish those actions.  But many of those same “egg producers” rolled up their sleeves and got down to the business of doing and end run around the law. 

It's ironic that some of the very companies that railed against Prop 2 by arguing that it would “force” chickens outside decided, once it passed, that Prop 2 did not, in fact, ban chicken cages.  In 2009 some egg production companies began to suggest that they would meet the new standards by using “enhanced” cages.  “Enhanced” cages were the compromise that the European Union had arrived at in its own struggle between egg production companies and humane animal husbandry advocates (and that’s a story in itself!).  The EU compromise was not a good compromise for chickens.  “Enhanced” cages are also referred to as “enriched cages” or “colony cages”.  The operative word here is “cages”.  Because, yes, they are still cages.  Chickens in these cages are given slightly more room.  Somehow, perhaps totally arbitrarily, 116 square inches became the standard.  116 square inches is definitely better than the 67 square inch standard in battery cages—a hen that previously had less than a sheet of printer paper to live in now would have space equivalent to a sheet of legal paper in the new cages.  The cages also had roosts—but there were not enough for all of the chickens to roost simultaneously and engage in social roosting behavior, and often, because of the low cage ceilings, these “roosts” were at floor level.  And there were dust baths filled with wood chips or some other dry material—but in practice, the dust bath material was quickly scattered out of the dust bath by the chickens and then completely out of the cage through the wire mesh floor.  The hens were observed to stand in the empty dust baths and perform “sham dust bathing—pathetically going through the motions of dust bathing with no material.  And the cages also had nest boxes—but they were devoid of nesting material and there were not enough.  Hens often spent time in the nest boxes without actually nesting.  They would use the nests for sham dust bathing, or just as a place to escape all the other hens in the overcrowded cages.  While “egg producers” did spend a significant amount of money for these new cages, and while the lower density did mean fewer eggs, thus less profit per square foot of barn space, it did little to end the abuse of the laying hens.  Yet the companies rolled out these new systems with champagne toasts and great fanfare.  It allowed their PR staff to show that they were doing something for the welfare of their chickens.  But, all said and done, these cages did not really meet the standard dictated by Prop 2.

While the California egg industry was busy reacting to the impending new law, the California legislature was also diligently at work solving one big problem the law created.  The California egg companies rightfully claimed that the new law regulated them but did nothing to regulate eggs coming into California from Mexico and other states.  If California companies were to meet Prop 2 standards in the way they treated their hens, then they were at a financial disadvantage to outside egg companies that didn’t have to meet those standards.  The legislature agreed with this assessment and drafted legislation that stated that any eggs sold in California, regardless of where they were produced, would have to comply with the standards outlined in Prop 2.  The bill was labeled Assembly Bill 1437, passed both the Assembly and the Senate by large margins and was signed into law by Governor Schwarzenegger in July of 2010.  Now egg companies in the American Midwest and South were really paying attention.  California is huge market for eggs and if they wanted to keep that market, they were going to either have to change the way they did business or somehow get rid of the new law.  They got right to work trying both strategies.

JS West is a large California family owned agricultural company.  They distribute propane, they grow almonds, they mill grain, and they have lots of laying hens.  Lots and lots of laying hens.  They were one of the first to come up with idea of putting their hens into enhanced cages.  After spending a ton of money on new facilities with enhanced cages, they were incensed when the Humane Society of the U.S. and others suggested that enhanced cages didn’t meet the standard dictated by Prop 2.  In December 2010, JS West filed a lawsuit against the State of California and the Humane Society of the U.S. that argued that Prop 2 didn’t specifically say how much space a chicken really needed, nor did it say how many chickens could be in any given enclosure or what sort of “furnishings” should be provided to them.  By March, 2011 The Association of California Egg Farmers (ACEF), that represented seventy percent of California’s egg farmers, filed to join JS West in their lawsuit.  Debbie Murdock, executive director of ACEF said, “Compliance requires the egg farmers to spend a significant amount of money on construction costs…and they should not be forced to guess whether their new facilities will comply with Proposition 2." They no doubt also hoped that their suit would be resolved with a legal declaration that their enhanced cages met the standard set by the new law.

Jill Benson, a JS West vice president, hyped their new enhanced cages. “We call it an enriched colony system...The hens can perform their natural behaviors when laying eggs!”  she proclaimed.  “And we give them fresh feed and fresh water!” she added magnanimously.  Fresh feed and water, apparently, was the icing on the cake.

The Humane Society of the U.S. felt that while an exact space per hen was not dictated in the legislation that enhanced cages didn’t meet the standard.  Peter Brandt, the Humane Society’s senior attorney for farm animals, stated, “We’ve always made it clear that hens must be able to turn around, lay down, stand up and fully extend their limbs; it’s no mystery.”

In October 2011, the California State Court ruled against JS West and their friends and the case was dismissed, but the dismissal was accomplished with arcane legal maneuvers that delayed the battle but didn’t solve the problem.  The lawyers for the pro-Prop 2 forces filed a demurrer, which is the California State Court equivalent to a motion to dismiss.  The grounds for dismissal was “ripeness”—the legislation in contention hadn’t come into effect yet, thus there were no pending enforcement actions against JS West or anybody else.  The court sustained the demurrer and the JS West case was dismissed.  The can had been kicked down the road.  But it turned out to be a very short kick.  In early 2012 a family trust that owned a cluster of California egg farms sued the State of California in federal court, arguing that Prop 2 was “impermissibly vague in all possible circumstances”—it was the next but certainly not the last action in the unrelenting legal circus that surrounded Prop 2. 

In the next post:  The egg industry and friends continues to litigate rather than find ways to institute changes to meet the Prop 2 standards.

Read "Edging Away from Cruel Eggs:  Part 3 - Strange Coop-Fellows"

Read "Edging Away from Cruel Eggs: Part 4—California, and now Massachusetts!"

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