Will HSUS's Egg Agenda Scramble the U.S. Constitution?

Disclaimer: No one at HumaneWatch is a constitutional lawyer. We don’t even play them on TV. So if any genuine legal eagles out there have a smarter or more cogent analysis of this, we’re all ears.

Maybe California Governor Arnold Schwarzenegger has forgotten about all those thermoses full of raw eggs he used to gulp down in his bodybuilding days. Or perhaps he’s still mad at the anonymous protester who hurled a raw egg at him during a 2003 campaign stop. (Schwarzenegger shook it off and said “this guy owes me bacon now.”)

But for whatever reason, the Governator signed a bill into law earlier this month (“AB 1437”) which could “Terminate” the concept of cheap, plentiful eggs in his state. The new law, heavily promoted and lobbied by the Humane Society of the United States, will extend the reach of Proposition 2—the 2008 ballot initiative requiring egg farmers to give their chickens far more precious real estate. AB 1437 requires eggs imported into California to follow the Proposition 2 standards imposed on in-state farmers.

Both Proposition 2 and this new companion law will take effect in January 2015. So we can expect four more years legal wrangling over just how much wing-flapping room the law requires for each bird.

Oh, goodie.

One California farm has already invested millions of dollars in larger cages that seem to satisfy the letter of the law, but no one seems to know for sure. A company vice president is complaining about the vagueness of the new benchmarks, saying “we are still in need of clear standards … How do you know what is Prop 2 compliant unless you define it?”

HSUS hasn’t exactly been helpful in clarifying what kinds of chicken cages—if any—might comply with Proposition 2. And predictably, the group is leapfrogging ahead to the conclusions that no such chicken coop exists, and that all cages must go. HSUS CEO Wayne Pacelle wrote recently that Schwarzenegger’s signature means “California will become a cage-free state.”

Will it really?

Since the very first hearing on AB 1437, Sacramento legislators have expressed concern that the bill could violate the U.S. Constitution’s “Interstate Commerce Clause” (at least as the clause has been interpreted by the Supreme Court). The conventional reading holds that only the U.S. Congress may “regulate Commerce with foreign Nations, and among the several States …” (emphasis added).

AB 1437’s central idea is that Californians can tell Missourians and Ohioans, for instance, how to produce eggs that are sold in the Golden State. And that doesn’t seem to be Constitutional.

In written advice to a California Assembly committee back in June 2009, one legislative analyst warned:

Since California does import eggs from out of state, this will impact out-of-state producers.  The committee may want to consider if this could be in conflict with the interstate commerce clause.

But don’t think HSUS put all its lobbying muscle behind a California law that has zero chance of passing Constitutional muster. They may be radicals, but they’re not stupid. It turns out that the Commerce Clause has a loophole big enough to drive an egg truck through.

Here’s how the U.S. History Encyclopedia describes HSUS’s best hope to keep AB 1437 alive (emphasis added):

State health, sanitary, and quarantine laws that interfere with foreign and interstate commerce … are also valid as long as they do not conflict with federal regulations on the subject.

Translation: A state’s local interest in safeguarding public health can override the federal government’s exclusive power to control commerce between one state and another.

For you Con Law students out there, the controlling federal case is from 1960, Huron Portland Cement Co. v. City of Detroit. Detroit was sued for enforcing an anti-pollution ordinance against ships owned by a cement company. The company argued that since the federal government had already licensed it to haul goods from state to state, no local government could control how much its ships were polluting the air.

The Court sided with the city (emphasis added):

The ordinance was enacted for the manifest purpose of promoting the health and welfare of the city's inhabitants … [T]he Constitution when conferring upon Congress the regulation of commerce … never intended to cut the States off from legislating on all subjects relating to the health, life, and safety of their citizens, though the legislation might indirectly affect the commerce of the country.

Here’s how this will likely play out: By itself, California’s AB 1437 might be unconstitutional. But if it was enacted in order to protect the health of Californians—that is, if giving egg-laying hens more room makes the eggs safer to eat—then AB 1437 could actually trump the U.S. Constitution.

Whoever drafted the bill (and there’s no reason to believe it wasn’t HSUS’s lawyers) clearly anticipated this. Here’s how the law’s text begins (emphasis added):

The Legislature finds and declares all of the following:

(a) According to the Pew Commission on Industrial Farm Production, food animals that are treated well and provided with at least minimum accommodation of their natural behaviors and physical needs are healthier and safer for human consumption.

(b) A key finding from the World Health Organization and Food and Agricultural Organization of the United Nations Salmonella Risk Assessment was that reducing flock prevalence results in a directly proportional reduction in human health risk.

(c) Egg-laying hens subjected to stress are more likely to have higher levels of pathogens in their intestines and the conditions increase the likelihood that consumers will be exposed to higher levels of food-borne pathogens.

(d) Salmonella is the most commonly diagnosed food-borne illness in the United States.

(e) It is the intent of the Legislature to protect California consumers from the deleterious, health, safety, and welfare effects of the sale and consumption of eggs derived from egg-laying hens that are exposed to significant stress and may result in increased exposure to disease pathogens including salmonella.

See? The lawyers seem to have looked three moves ahead, just like a good chess player. AB 1437 intends to protect Californians’ health. But two questions remain.

First, does it actually do that? Does science really show that cage-free eggs are safer to eat?

And second, does it matter? In other words, if an egg is an egg is an egg, is the legislature’s stated intention enough to cancel out good science?

The second question is for the Constitutional lawyers out there to bicker over. But the first one isn’t exactly a slam dunk for the more expensive eggs that AB 1437 (and HSUS) prefers.

Ironically, on the same day Schwarzenegger signed the bill into law, TIME magazine published a report about some new USDA research. The latest science gives the health-and-safety edge to eggs from hens kept in the very kind of cages that Proposition 2 outlawed:

[I]t's worth it to pay more because you're getting a healthier product, right? Wrong. Most of the time, according to a just-released study by the U.S. Department of Agriculture (USDA), the eggs are indistinguishable. When there is a difference, it's often the factory eggs that are safer …

[And] with the environmental contaminants … the factory eggs have the edge. Research in both the U.S. and the E.U. has shown that free-range chickens have higher levels of PCBs, simply because they get out more and can peck almost anywhere. "There was a study in California of a free-range or organic farm with a wood-processing facility nearby," says [USDA immunologist and microbiologist Peter] Holt. “The chickens there had 100 times the PCB level of battery-cage chickens.”

Oops. The Orange County Register may have summed it up best, editorializing that same morning: “[I]t obviously makes a lot of us feel better to treat chickens more humanely. Just don't think our moral compass will automatically point the way toward a healthier diet.”

But what about salmonella? In the language of AB 1437, that’s what appears to matter most. In December 2009, HSUS published an online article citing five recent studies [1, 2, 3, 4, 5] in which salmonella levels among caged hens were higher than in cage-free birds. But here’s what HSUS isn’t telling you.

  1. USDA scientists have found that only about 1 in every 20,000 eggs might be contaminated with salmonella. (At current consumption rates, the average American might encounter one of those eggs every 84 years.)
  2. Even if an egg is contaminated with salmonella, the only way it can translate into a human illness is if the egg isn’t refrigerated or cooked properly.
  3. Salmonella-egg studies usually measure the total level of pathogens in the chicken manure collected from an egg facility. A big reason lower levels are found in “cage-free” farms is that they tend to have fewer hens. In other words, a pile of manure from 100,000 birds could pose a greater health risk than a pile of manure from a flock of 5,000 cage-free birds. But that doesn’t mean an individual egg from either farm is safer.

We were curious about the real-world implications of all this, so we called United Egg Producers and asked how many human illnesses the Food and Drug Administration had traced back to salmonella in eggs during the past three or four years. Their response? “We don’t know of any, and we would know.”

Keep one last thing in mind. Prop 2 and AB 1437 only apply to “whole” eggs, still in the shell. “Processed” eggs produced in (or shipped into) California in liquid or powder form aren’t covered at all. There’s a good reason for this: The USDA has required the pasteurization of all “processed” eggs since the Egg Products Inspection Act was passed, way back in 1970. And pasteurizing food, if you recall your high-school science, pretty much neutralizes salmonella and other pathogens.

Here’s the bottom line: California’s new law clearly won’t make Californians any healthier. But the state legislature’s (misguided and misinformed) good intentions may be enough to consign lots of good science to the “irrelevant” pile. And what was that our grandmothers always said about good intentions?