Justice Department urges Supreme Court against hearing cage-free egg lawsuit

Which came first—the anti-confinement law or demand for the cage-free egg?

On Friday, the Department of Justice (DOJ) made a move that could have significant ramifications for the American egg industry. It advised the Supreme Court against hearing a lawsuit filed by 12 major egg-producing states over California’s ethical farming laws.

Should the Supreme Court take DOJ’s lead, it would effectively validate and uphold California’s first-of-its-kind legislation, which bans the sale of eggs laid by hens in confinement.

First, some background. In 2008, California voters overwhelmingly approved the Prevention of Farm Animal Cruelty Act—commonly known as Proposition 2—a ballot initiative that banned California farmers from using confinement methods that did not allow animals to stand up, turn around freely, lie down, and fully extend their limbs. Voters approved Proposition 2 by a 27-point margin.

Immediately following Proposition 2’s passage, California egg producers clamored for its repeal. After all, logic went, if they could no longer farm eggs at the high density achieved through animal confinement, they would be at an economic disadvantage to producers in other states.

Hearing these concerns, the California legislature then passed a law banning the sale of any and all eggs laid in confinement—that included eggs produced in other states and sold in California. That law, which went into effect in 2015, has since drawn the ire of producers nationwide.

Twelve states are claiming that California is ruining eggs for everyone.
So much so that last year, a band of 12 states—led by Missouri and including Iowa, the country’s biggest egg producer—asked the Supreme Court to strike the law down, saying that California’s laws were preempted by the Egg Products Inspection Act (EPIA), the federal law that oversees egg production, and that they violated the Interstate Commerce Clause, a section of the U.S. Constitution that gives the federal government power to regulate commerce between states.

Bottom line? The 12 states claimed that California was ruining eggs for everyone, particularly shoppers who were ostensibly subject to higher egg costs. The law, in other words, was doing economic harm to producers and eaters alike, whether they live in California or not.

The Supreme Court asked DOJ to weigh in, and on Friday, it got its answer.

“[California’s egg laws] are not preempted by the EPIA, because USDA’s egg-grading standards do not address confinement conditions for egg-laying hens,” Solicitor General Noel J. Francisco wrote in the DOJ’s amicus brief.

Besides, Missouri’s lawsuit, said Francisco, isn’t serious enough to warrant the Supreme Court’s attention because none of the 12 states involved are seeing their sovereign function jeopardized by California’s egg laws. If egg producers themselves want to sue California’s officials, go right ahead, the amicus said, but states aren’t in a place to do that.

And finally, according to DOJ, California’s anti-confinement law may be a factor in the rising cost of eggs, but it’s just one of many.

Missouri isn’t about to take the amicus lying down.
“Plaintiffs’ allegations regarding economic harm to state residents and institutions are insufficient because they do not persuasively show price increases outside California that are directly attributable to California’s Egg Laws,” the brief read.

Average egg costs may be rising, the government concedes, but that could also be due to more and more eaters choosing cage-free on their own volition. The DOJ also pointed to 2016 reporting by NPR’s Dan Charles, which found that many big food companies were sourcing cage-free eggs, and that many producers were switching to cage-free systems to meet rising demand. Which came first—the anti-confinement law or demand for the cage-free egg? Who’s to say?

Missouri isn’t about to take the amicus lying down.

“We respectfully disagree with the positions in the Solicitor General’s brief and we will continue to press the case forward,” Missouri Attorney General Josh Hawley said in a statement provided to The New Food Economy.

In the meantime, states may carve out their own protections for egg producers. Earlier this year, Iowa passed a law that required grocery stores to sell conventionally-farmed eggs, under the guise of protecting consumer choice. But that’s a different story. For this one, now we’re just waiting to hear what SCOTUS has to say.

A previous version of this story misstated the name of the Missouri Attorney General. He is Josh Hawley, not John Hawley.

Jessica Fu is a staff writer for The Counter. She previously worked for The Stranger, Seattle's alt-weekly newspaper. Her reporting has won awards from the Association of Food Journalists and the Newswomen’s Club of New York.