CA Prop 2 Hen Cage Law Found “Not Vague”

HSUS Prop 2 and the Hen Housing

Los Angeles U.S. District Court, Central District,  Judge John F. Walter  on
September 12, 2012  apparently dismissed a case brought by
William Cramer, which  challenged the hen housing
requirements of Proposition Two, passed by voters in November 2008, as
unconstitutionally vague under the U.S. Constitution. The case was alleged to have failed to state a case or controversy which was “ripe” for review and did not establish that Prop 2 was vague in all applications (as required under Federal law.)  This was apparently the second case filed by a poultry business, in an attempt to determine the specifics needed to comply with Prop 2.

The first challenge in 2010, by JS West, sought a declaratory judgment that the colony housing system at the facility met the requirements of Prop 2. The court finding that JS West was not challenging the validity of Prop 2 and had no actual or present controversy,  declined to exercise its discretion to hear the case for declaratory relief, sustaining the demurrers of the State and HSUS which apparently claimed JS West was seeking an improper advisory opinion.

Perhaps if the Eggie People had taken a hard look at how HSUS was setting them up from the beginning, by making the public believe the law was about other animals and not egg farmers, the law may not have passed the way it did.  In regard to the CA egg law, slated to start in a few years, representative Congressman Steve King of Iowa has already added a provision to the not passed yet Farm Bill, which is intended to stop laws exactly like Prop 2, stating that laws like Prop 2 violate the Commerce Clause.

We believed an interstate commerce issue might arise  when the law was first set up, because it forced CA egg companies to adhere to the standards, but said nothing about any eggs being sold to the state. HSUS later got another follow up law which provided that ALL eggs sold to the state of CA must come from the same required housing for hens. [See our other post on the PICA provision, Protect Interstate Commerce Act by congressman Steve King, Iowa]

Apparently about 30% of the eggs coming into CA are from Iowa, which are now not using the HSUS “enriched” housing.  So to maintain the sales to CA from Iowa, the egg layer farmers in Iowa would HAVE to incur increased costs to modify their hen’s housing.  Mr. King, representing Iowa, stated on the website………..

“I am pleased that the Committee passed my amendment, the Protect Interstate Commerce Act (PICA) because states are entering into trade protectionism by requiring cost prohibitive production methods in other states,” said King. “PICA blocks states from requiring ‘free range’ eggs or ‘free range’ pork but covers all agriculture products listed in section 206 of the Agriculture Marketing Act of 1946. By 2014 California will require only ‘free range’ eggs be sold and the impact of their large market would compel producers in every other state to invest billions to meet the California standard of “means of production.”

Back to the eggies, of course out of state producers could  avoid selling eggs to California. But it would seem that if the farmers selling eggs in CA would have to invest millions to become compliant with HSUS law, the cost would be borne by consumers paying more for eggs. How much more for the eggs is not exactly known.

The question in the CA Federal Court challenge, (the second challenge),  according to Judge Walter, was whether Proposition Two required California egg farms to be cage-free.  Since HSUS drafted the law and did not include any data which gave specific numerical dimensions, and for which spokesperson Jennifer Fearing specifically stated, well in advance of the law’s implementation, that a CA egg farmer which had upgraded to so-called “enriched” housing could be wasting their money because the “housing” would not meet the law’s requirements.  This led some to believe that the specs were not listed by HSUS because HSUS intended to try and force a no cage type of setup with the new law.

“There is nothing in the language of Proposition Two that requires California egg
farms to be cage-free,” Walter concluded. “The statute is clear that, provided
the cage does not prevent the egg-laying hen from lying down, standing
up, fully extending her limbs and wings without touching the side of the
cage or other egg-laying hens, or turning in a complete circle without any
impediment and without touching the side of the cage, the use of such a
cage would not violate Proposition Two.”

Walter added that the answer to the question of how much space this actually requires “is certainly not a mystery and is capable of easy determination by egg farmers.”  While Judge Walter may believe that the “easy” determination is not a difficult task, we think that perhaps Judge Walter (in Los Angeles Federal Court) does not really know how HSUS works.

We think that such a determination could be quite involved, because not all chickens are the same size, not all have the same wing spread, and chickens move all over the place and not necessarily at the same time or place or numbers.  We would be willing to bet that it could be possible that based upon the way the HSUS wording was quoted in the case, “does not prevent the hen from fully extending her limbs and wings without touching other egg laying hens” or “turning in a complete circle without any impediment” is pretty ridiculously worded. Because even if hens were free ranging it is possible that these conditions would not be met all the time. One cannot force chickens to stay in any particular area except by confining them, and even if the area is open, they will still likely tend to gather in groups on their own.

One could assign a particular amount of space per hen, but for every hen, or only some of them to be able to do whatever acts HSUS claims they should be able to do, would not necessarily even be possible simply due to the chickens themselves moving around. Exactly how would one enforce that? if 3,000 hens all moved to one area of the cage and 50% could not do the things HSUS wants them to do, is the cage preventing them from being able to do these things since they are all against one side? Would undercover ARs get inside and take pictures of just one side with 3,000 hens all against the wall?  Would that mean 3,000 violations? There are farms that have a million hens. This could be in 3 buildings and X number of cages. Regardless of the “sizes” of any cages or enclosures, we just don’t believe it’s possible to ensure the hens can always do all the things HSUS wants them to do, as hens are not robots. Do we really think that assigning space allotment is going to do the trick for HSUS?  We think not.



Researchers from the University of California-Davis determined that Prop 2 would bankrupt just about every egg farm in California. “Our analysis indicates that the expected impact [of Prop 2] would be the almost complete elimination of egg production in California within the six-year adjustment period,” they wrote.

The USDA reports that 98 percent of farms are family operations. HSUS pushed a law that would bankrupt just about every egg farm in California and cost 3,000 jobs. It doesn’t take a logician to conclude that HSUS hurt family farmers with Prop 2.

Now there’s one more problem: Egg farmers who are trying to comply and stay in business can’t even figure out exactly what Prop 2 requires. And HSUS keeps shifting its position—despite crafting the initiative itself.

Following Prop 2, one California egg farm built roomier enriched cages that would seem to comply with the law’s requirements. But HSUS claimed in 2010 that it was “crystal clear” that Prop 2 required all farms to go cage-free.

Now, HSUS’s tune is different. HSUS says 200 square inches of space per bird is OK under Prop 2. (This differs from a UC-Davis poultry expert who deems 90 square inches appropriate.) Then, HSUS vice president Jonathan Lovvorn, who by the way is a defendant in a federal RICO lawsuitoddly claimed that “We don’t want to tell farmers what kind of cages to use.”  PD note:  DUH– HSUS wants NO cages so of course they won’t say how big they should be. That would be silly.

Except that HSUS is telling egg farmers what cages to use, in a way, by pushing for minimum sizes. It’s doing so in a federal bill that would mandate egg farmers use enriched cages with a minimum of 125 square inches per bird. (90? 125? 200? Cage-free? Who knows.) Even if you bought every farm chicken in America a treadmill, a chaise lounge, and an iPad mini, HSUS still wouldn’t like the fact they were being raised in captivity to feed humans.

Going back to family farmers, this is all a bit ironic. Who best copes with government regulation? Bigger businesses. Small guys find it much more difficult to secure financing for costly infrastructure mandates. It’s just a recipe for more of the consolidation that Pacelle complains about.

and more…………………………..

click link to read entire article, below are just 2 paragraphs……………

There has been no move to develop any new complex in California since passage of Proposition #2 in 2008.  Producers in California should have commenced building by now to achieve conversion to an acceptable system to meet the deadline of January 1, 2015.  In fact June 2013 could be considered the “point of no return” with regard to ordering new equipment for previously planned operations.

The fact that the California legislature enacted AB 1437 in July 2010 requiring that eggs introduced into California must conform to the restrictions of Proposition #2 will not protect California producers from competition represented by eggs shipped in to the state.

The law was predicated and worded as measure to “protect the health of California consumers” (read SE in eggs from Mexico).  The legality of the various provisions of the Act have not been tested but it is generally accepted that the justification relating to “health” is blatantly spurious and that the law effectively is in conflict with federal legislation impeding interstate commerce. 


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