Koster picks up KingXs fight, files lawsuit against CA hen standards

By Agri-Pulse staff

© Copyright Agri-Pulse Communications, Inc.



Iowa Republican Steve King may not have persuaded farm bill conferees to include his controversial amendment regarding California standards for egg-laying hens, but he may eventually accomplish the same thing, thanks to a Missouri Democrat: Chris Koster.

The Show-me state's Attorney General followed through on his promise to sue - first announced to Missouri Farm Bureau members and reported by Agri-Pulse on Dec. 9, 2013 - in a lawsuit filed late Monday in United States District Court for the Eastern District of Fresno, California.

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The filing pits Koster against a fellow Democrat, California Attorney General Kamala Harris.

The issue has been brewing since California voters, swayed by the Humane Society of the U.S. and other advocacy groups, approved Proposition 2 in 2008. The ballot initiative sets parameters on the types of agricultural production methods that California farmers can use to house egg-laying hens. In 2010, the California State Assembly passed new legislation (AB1437) requiring egg producers in other states-including Missouri-to comply with Proposition 2 themselves in order to continue selling their eggs in California. Beginning in 2015, egg producers are required to comply with new regulations concerning the size of the enclosures housing egg-laying hens.  

“California has placed restrictions on the sale or transfer of a commodity based on production methods that have nothing to do with the health or safety of California consumers,” said Koster.  “If 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.”

On the federal level, HSUS partnered in 2012 with the United Egg Producers in a failed attempt to establish national standards for egg-laying hen cages. And King succeeded in including his amendment to invalidate the California standard in the House version of the now 2014 farm bill, only to have it dropped out of the final conference report because of opposition from the California delegation.

While Rep. King frequently argued that California violated the commerce clause in the U.S. Constitution by trying to dictate production standards for egg-laying hens in other states, Koster broadens the charges. He points out that the “purported public health purpose” of AB1437 - that is, to protect California consumers - is more clearly an attempt to protect California farmers from the market effects of Prop 2 by “leveling the playing field for out-of-state egg producers.”

The lawsuit cites a California Department of Food and Agriculture (CDFA) report that warned then California Governor Arnold Schwarzenegger that the danger in not signing the bill was “competition, not contamination.”

In addition, Koster argues that the purported public health purpose is preempted by federal law, citing the Federal Egg Products Inspection Act (EPIA).

Section 1301 of the EPIA makes clear that one of the express purposes of the law is to protect human health in connection with the consumption of shell eggs, but also notes that “no state or local jurisdiction may require the use of standards of quality, condition, weight, quantity or grade which are in addition to or different from the official federal standards,” Koster pointed out.

Missouri's 7 million egg-laying hens produce about 1.7 billion eggs per year, with about 540 million exported to California. If Missouri producers comply with the law, they face an estimated $120 million in capital improvements costs, plus a 20% increase in ongoing production costs.  If instead they choose to stop selling eggs in California, Missouri's egg producers will face a surplus of a half billion eggs, which could depress prices here at home and force some Missouri farmers out of business, Koster noted.

“This case is not merely about farming practices,” said Koster. “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.”

Agricultural lawyer Gary Baise, a principal at OFW Law who is also co-head of the litigation practice, describes this case as “monumental for agriculture” and he's optimistic that the relatively ag-friendly Fresno district court will give Koster a fair shot at winning. Plus, other attorneys general - in major egg producing states - may weigh in.

But after HSUS defeated the King amendment in the farm bill, Baise also doesn't expect the organization to stand down.

“HSUS will do everything it can to rally support against this lawsuit,” Baise adds.

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