A week after Missouri filed a headline-grabbing lawsuit charging that California's upcoming ban on the sale of battery-cage eggs violates the U.S. Constitution... the real work is just beginning for the Show-Me state. Missouri Attorney General Chris Koster will to have to show - no, make that prove - that the 2015 law actually violates the Commerce Clause. California's law requires out-of-state egg producers to comply with new cage standards for any eggs they sell in California. The Commerce Clause regulates trade by, among other things, barring states from enacting laws that protect their own citizens at the expense of other states.
A little background
In 2008, California voters passed the infamous "Prop2." That measure required California egg producers to provide their laying hens with cages big enough that they could do things like stand up, turn around and spread their wings. In order to give farmers time to comply, the law wasn't set to take effect until 2015.
The California egg industry worried that the market would be flooded with cheaper eggs from out-of-state producers who didn't need to comply with the new standards. So in 2010, California lawmakers approved an extra measure, AB1437, in order to level the playing field. That law required any producer selling eggs within the state's borders to meet the new standards as well.
While it may not loom large on California's radar screen - Iowa, Ohio, Indiana, Pennsylvania and California itself supply more eggs to California consumers - the California market is extremely important to Missouri. Nearly 1/3 of all the eggs it exports annually go to California.
Missouri's lawsuit alleges that AB 1437 and accompanying regulations violate the Commerce Clause because they unfairly advantage California egg producers. How? "...by eliminating the competitive advantage Missouri producers would enjoy once Prop 2 becomes effective." Missouri claims this puts a "substantial burden" on its farmers... who will either need to spend an estimated $120 million in order to comply with the California regulations or stop selling their eggs in California completely. "This case is not merely about farming practices," said Koster in a press release. "At stake is whether elected officials in one state may regulate the practices of another state's citizens who cannot vote them out of office."
Drama aside (more on that later), the argument isn't likely to work for a very basic legal reason. The California appellate court has already rejected it. Several times. In August 2013, the 9th Circuit Court of Appeals unanimously upheld the state's foie gras ban from a challenge brought in part by an out-of-state foie gras producer. The court found that the law applies to both "California entities and out-of-state entities...regardless of where the force feeding occurred.... Otherwise, California entities could obtain foie gras produced out of state and sell it in California." Translation? The egg ban involves only a production method, while the foie gras ban involved both the production and sale of that product. In other words, it presented an even stronger argument and was shot down. Similarly, just a few days earlier, that same 9th Circuit upheld another California law banning the sale, trade or possession of shark fins.
Missouri also argues that California gave its own producers nearly two more years to prepare for the new standards than out-of-state producers. True, but the numbers don't quite add up. Missouri still had five years of notice but is only filing its suit with one year to go. Notably, lawmakers in Idaho and Nevada didn't waste any time when they began their respective efforts in 2010 to simply try to lure California egg farmers away.
If at first you don't succeed...
As any first year law student already knows, never make a constitutional argument unless you have no other choice. They are notoriously hard to win, and lawyers simply don't go there if they can get to where they want to be by any other means.
So why did Missouri file a constitutional claim? Because others, including the Association of California Egg Producers, have already tried - and failed- to stop the new law on lesser grounds.
What's good for the goose...
On the other hand, it's not as if Missouri doesn't have its own laws that arguably regulate out-of-state commerce in just the same way. Its apple law doesn't list any exemptions, for example. So, a Washington State orchard that wants to sell its apples in Missouri would need to comply with Missouri's regulations. Missouri likewise regulates the sale and distribution of agricultural and vegetable seeds without regard to laws of the exporting state. And it specifically limits the amount of out-of-state materials that brandy and wine makers are allowed to use in producing their goods. Hmm.
So what's really going on here?
Missouri Attorney General Koster said in that same press release that "[i]f California legislators are permitted to mandate the size of chicken coops on Missouri farms they may just as easily demand that Missouri soybeans be harvested by hand or that Missouri corn be transported by solar-powered trucks."
That's a pretty emotional argument, especially coming from the state's top lawyer. He apparently made those sorts of (grandstanding) comments to the Missouri Farm Bureau before filing as well. That might explain (the sheer arrogance of) his legal demand (to a court that sits in California no less) that it restore a competitive advantage to his state at the expense of that court's home state.
But perhaps there's a bigger observation to be made here. Regardless of viewpoint, most people would agree that environmental, consumer, and more recently, animal-friendly laws are becoming more the norm than the exception. As the tides shift, those who oppose laws that don't put people - if not specifically themselves - first are increasingly the ones resorting to impassioned, and even vitriolic, pleas. Anyone else remember the protests when England banned foxhunting about a decade ago? British lawmakers had to suspend parliament in order to physically remove pro-hunting protesters who had barged in and disrupted the debate.
As with many other steps forward (think: car safety standards), California often leads the country - even if kicking and screaming - into a new and improved normal. Let's hope the same happens here.
There have been several newsworthy examples of private industry stepping up its game recently too. CVS announced last week that it would stop selling tobacco in its stores because it felt that such sales conflicted with its goal to become a bigger player in the healthcare market. Undoubtedly, the tobacco industry wasn't pleased. But it's unlikely to sue CVS to force the retailer to sell tobacco products anyway.
Likewise, Subway said that it will stop including an ingredient in its breads that is also used in yoga mats and shoe rubber. The announcement came after an online petition went viral, although the company maintains it had been in the process of phasing the chemical - which the petition noted is already banned from food in other countries - out of its U.S. breads anyway.
Google reaffirmed its commitment to gender equality when its signature homepage doodle featured Olympic sports against a rainbow-hued background as the Sochi games opened. Underneath, a phrase from the Olympic Charter condemned discrimination of any kind. In case Russian officials missed the point, Google translated the phrase into Russian for its service in that country.
In other words, both states and businesses are increasingly recognizing values other than financial profitability in their business decisions. Missouri would do well to recognize the trend.
No one is forcing Missouri to do anything. Sell eggs in California or not, it's your call. But it's unrealistic to expect any state to regress its laws just because another state doesn't want to evolve. For the amount of taxpayer dollars that Missouri will spend (read:waste) in attempting to force California's federal courts to allow it maintain its cruel status quo for the sake of convenience and profit, Missouri could offer its egg farmers subsidies to defray the cost of compliance. Or at least buy itself a good pair of glasses so it can see the handwriting on the wall next time.
------ Amy Breyer is the executive director of the Animal History Museum, a nonprofit museum dedicated to understanding and celebrating the human-animal bond. Visit AHM at: www.animalhistorymuseum.org, on FB & IG: animalhistorymuseum, on Twitter: @animal_history, and Pinterest: animalhistory/boards.
Prior to founding AHM, Breyer opened and ran the first animal law practice in the state of Illinois. She was the principal founder of Northwestern Law School's Student Animal Legal Defense Fund chapter, the Chicago Bar Association's Animal Law Committee as well as the Illinois State Bar Association's Animal Law Section. She has written about, spoken and guest-taught various animal law topics around the country.