California’s Egg Law Should Survive a Dormant Commerce Clause Attack Georgetown International Environmental Law Review

WillDerwinTitleCardCalifornia’s Egg Law Should Survive a Dormant Commerce Clause Attack

By Will Derwin, Staff Contributor

California’s egg law — requiring both in-state and out-of-state egg producers who sell eggs in California to raise their hens such that they have enough space to move around — should survive a potential dormant Commerce Clause attack by out-of-state egg producers.

In 2008, California voters approved Proposition 2, which requires California egg producers to confine their hens in ways that allow them to lie down, stand up, fully extend their limbs, and turn around freely.[1] In 2010, California passed Assembly Bill 1437, which requires out-of-state egg producers wishing to sell eggs in California to comply with its standards.[2] The requirements of Proposition 2 and Assembly Bill 1437, collectively referred to as the California egg law, took effect on January 1, 2015.[3]

Other states have already attacked the California egg law alleging that it violates the dormant Commerce Clause. Though one case — brought by the state governments of Missouri, Nebraska, Oklahoma, Alabama, Kentucky, and Iowa — was dismissed for lack of standing,[4] egg producers from these and other states will likely attack the California egg law again as a violation of the dormant Commerce Clause.[5] The law should survive such an attack.

First, the California egg law promotes the state interests of protecting public health and preventing animal cruelty. States have a legitimate interest in protecting public health, and they have broad authority to enact laws to accomplish this goal.[6] The egg law’s purpose is “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.”[7] States also have a legitimate interest in preventing animal cruelty.[8] Raising hens in battery cages causes hens psychological and physical stress,[9] and is thus a source of animal cruelty which the California egg law attempts to prevent.

Second, the California egg law is not facially discriminatory. It is unlike statutes the Supreme Court has struck down for directly discriminating against interstate commerce,[10] and similar to those it has upheld as only incidentally burdensome upon interstate commerce.[11] Whereas facially discriminatory statutes impose differential treatment of in-state and out-of-state economic interests,[12] the California egg law treats all businesses, whether in-state or out-of-state, the same way. It does not matter whether an egg producer is from California or another state; if the producer wishes to sell eggs in California, it must meet the uniform standards for raising its hens.[13]

Third, under the Pike balancing test, which is applied to laws that are only incidentally burdensome to interstate commerce,[14] the Court should uphold the California law because its incidental burdens on interstate commerce are not clearly excessive in relation to the legitimate state interests it advances. Though the law imposes incidental burdens on out-of-state (as well as in-state) egg producers who must upgrade their cage conditions, these burdens are necessary in order to achieve the public health and animal cruelty goals associated with the removal of battery cages.

Finally, even if the Court finds the California egg law to be facially discriminatory, it should still withstand the corresponding strict scrutiny analysis because the law advances legitimate state interests and nondiscriminatory alternatives are unavailable. Similar to Maine v. Taylor in which the Court upheld the facially discriminatory Lacey Act because it served a legitimate state purpose that could not be served as well by available nondiscriminatory means,[15] the egg law should be upheld because there are no less discriminatory alternatives for achieving the public health and animal cruelty goals associated with the prohibition of battery cages.

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[1] See Cal. Health & Safety Code § 25990 (2008).

[2] See Cal. Health & Safety Code § 25996 (2011).

[3] Cal. Health & Safety Code § 25990 (2008).

[4] Missouri v. Harris, No. 2:14-cv-00341-KJM-KJN, 2014 WL 4961473 (E.D. Cal. Oct. 2, 2014).

[5] See Dan Flynn, Despite Ruling, Midwest Egg Producers Unlikely to Give Up California Market without a Fight, Food Safety News (Oct. 6, 2014), http://www.foodsafetynews.com/2014/10/midwest-egg-producers-arent-going-to-give-up-california-market-without-a-fight/#.VFj0CvTF8x8.

[6] See, e.g., Clason v. Indiana, 306 U.S. 439 (1939); Barsky v. Board of Regents, 347 U.S. 442 (1954); H.P. Hood & Sons, Inc. v. Du Mond, 336 U.S. 525 (1949).

[7] Cal. Health & Safety Code § 25995(e) (2011).

[8] See, e.g., United States v. Stevens, 559 U.S. 460, 469 (2010) (finding a statute that criminalized the creation, sale or possession of depictions of animal cruelty overly broad and thus unconstitutional); Pacific Northwest Venison Producers v. Smitch, 20 F.3d 1008 (9th Cir. 1994), cert. denied, 513 U.S. 918 (1994) (upholding a Washington regulation that prohibited the private ownership and exchange of several species of wildlife).

[9] Letter from Dr. Ian Duncan, Dept. of Animal and Poultry Science, University of Guelph, to Dr. Nancy Halpern, New Jersey Department of Agriculture (June 25, 2003) (cited in Humane Soc’y of the United States, Scientists and Experts on Battery Cages and Laying Hen Welfare, available at http://www.humanesociety.org/assets/pdfs/farm/HSUS-Synopsis-of-Expert-Opinions-on-Battery-Cages-and-Hen-Welfare.pdf).

[10] See, e.g., Or. Waste Sys., Inc. v. Dep’t of Envt’l Quality, 511 U.S. 93, 99 (1994); BrownForman Distillers Corp. v. N.Y. State Liquor Auth., 476 U.S. 573, 578–79 (1986).

[11] See, e.g.United Haulers Ass’n v. Oneida-Herkimer Solid Waste Mgmt. Auth., 550 U.S. 330, 342 (2007); Ass’n des Eleveurs de Canards et d’Oies du Quebec v. Harris, 729 F.3d 937, 948 (9th Cir. 2013).

[12] See, e.g., Or. Waste Sys., 511 U.S. at 99; Brown-Forman, 476 U.S. at 578–79.

[13] See Cal. Health & Safety Code § 25990 (2008).

[14] Pike v. Bruce Church, Inc., 397 U.S. 137, 142 (1970); see also United Haulers, 550 U.S. at 342; Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456, 472 (1981).

[15] 477 U.S. 131, 151 (1986).

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