On December 19, 2017 and June 9, 2018, we blogged about the challenges 13 states had launched against California’s minimum space requirements for egg-laying hens. They also challenged a similar law in Massachusetts.  The petition sought leave to challenge those requirements via an action in the Supreme Court under the Court’s original jurisdiction.

On May 29, 2018, and June 20, 2018, we blogged about the challenges to California’s ban on traditionally produced foie gras, in which several producers asked the Court to grant a petition for certiorari. In both cases, the Court asked for the views of the Solicitor General.  In both cases, the SG sided with California.

In the egg case, petitioners argued that (a) the Egg Products Inspection Act (EPIA) preempted the state laws at issue; and (b) that California and Massachusetts were violating the dormant commerce clause by attempting to regulate economic activity in other states.

The SG’s principal argument was that the Court should exercise its discretion to decline an original action. The Court rarely exercises such jurisdiction, he argued, and the grounds set forth by the plaintiffs here did not satisfy the requirements for original jurisdiction.

The first ground was that the states and their citizens were forced to pay higher prices for eggs as a result of California’s space requirements. The SG argued that, because many other factors affect the price of eggs, this injury was not sufficiently direct.  The second ground was that federalism concerns were core sovereign issues.  The SG retorted that the Court had never held that such interests, standing alone, warranted the exercise of original jurisdiction.  The third ground was that allowing California egg inspectors to inspect egg farms in other states infringed their sovereignty.  The SG argued that no such concerns existed if the owners of the farms invited the inspection so they could legally sell in California.

Separately, the SG argued that an action in the district court would be a much superior alternative to an original action in the Supreme Court. The states and their egg farmers would have standing to file such a suit.  And the complex and difficult factual issues surrounding the dormant commerce clause claim could be much more easily addressed by a court that regularly dealt with fact finding.

The SG did briefly argue that the EPIA did not preempt California’s egg law, but that argument was very much of an afterthought.

In the foie gras case, petitioners argued that the federal Poultry Products Inspection Act (PPIA) preempted California’s ban on foie gas produced by force-feeding. The PPIA prohibits states from imposing different or additional requirements on “ingredients” in poultry.  The SG argues that the word refers to the physical or chemical properties of the food, whereas California only regulates a method by which the product is produced.  The producers argued that the effect of that regulation would be to ban all types of foie gras.  The SG responded that nothing in the record suggests that force-feeding is necessary to produce foie gras.

The SG acknowledged that the issue would be closer if, in fact, force-feeding was the only way to produce foie gras. As we previously explained, the Court had held that the National Meat Inspection Act (NMIA), which contains a preemption provision almost identical to that in the PPIA, did preempt a California statute that banned the slighter of certain kinds of cattle.  Given the absence of evidence that only force-feeding could produce foie gras, the Court did not need to answer that hypothetical.

The SG argued that the NMIA did not control this case, even though the wording is the same, because its prior ruling dealt with a different part of the NMIA. The SG gave similarly short shrift to petitioners’ other preemption arguments.

Given the deference that the Court affords the SG, his position on both cases does not augur well for success.

On December 19, 2017, we blogged about the efforts of several states, including Missouri, to overturn California’s egg regulations by suing California directly in the Supreme Court. A California referendum requires all egg-laying hens in California to have substantially more cage space than is the industry norm.  California egg farmers were understandably concerned about being placed at an economic disadvantage vis-à-vis their out-state competitors, so they lobbied the legislature to require that all eggs sold in California be laid by hens in cages that comply with the space requirement.  As a practical matter, there is no way to comply with that requirement without providing minimum cage space to all hens.

The State of Missouri sued California for declaratory and injunctive relief, alleging that its attempt to control the actions of out-of-state producers violated the Commerce Clause. Both the District Court and the Ninth Circuit rejected those claims, not on the merits, but because Missouri had not alleged that the regulations caused it any damage.

Last December, 12 states joined with Missouri in a motion for leave to sue California in the Supreme Court under the Court’s original jurisdiction.  They supported the motion with an expert report asserting that the California measure has raised the price of eggs across the board.  The motion has been fully briefed by the parties and the Court has asked the Solicitor General for his views on the matter.  The Court will likely decide before the end of June whether to hear the case.

On March 16, 2017, and June 6, 2017, we blogged about Missouri’s legal challenge to California’s egg rules.  Now, there are two motions pending in the Supreme Court of the United States challenging the California law and a similar law in Massachusetts.

California requires its egg producers to provide substantially more space per egg-laying hen than is the industry standard. Obviously, that significantly raises the cost of producing any single egg.  To protect its producers, California prohibits the sale of eggs from any other state that do not conform to the same space standards.  Federal courts rejected Missouri’s pre-enforcement challenge on the ground that the State had sustained no concrete injury, and did not reach the merits.

In 2016, Massachusetts adopted a similar law via an initiative petition.  The Massachusetts law applies to pigs and veal, in addition to eggs.  Like California, it prohibits the sale in Massachusetts of eggs, pork or veal that does not comply with Massachusetts’ space requirements.

Earlier this month, Missouri joined twelve other states in seeking leave to sue California in an original action in the Supreme Court.  Missouri attached to its proposed complaint a 41-page expert report analyzing the increased costs imposed by California’s regulations.  According to the report, Missouri pays between $18,000 and $76,000 in additional costs to buy eggs for its correctional facilities.  Nationwide, the report estimates that consumers will pay between $227 million and $911 million in additional costs.  Thus, the Missouri complaint alleges both direct injury to the State in the form of higher prices it must pay for eggs and parens patriae injury to Missouri consumers.

The Missouri complaint alleges that the federal Egg Product Inspection Act (EPIA) preempts any state regulation of eggs that are “in addition to or different from” federal regulations issued under the EPIA.  In 2012, in National Meat Association v. Harris, a unanimous Supreme Court held that identical language in the Federal Meat Inspection Act preempted California’s attempt to regulate slaughterhouses.  Missouri also alleges that California’s egg rules violate the dormant commerce clause by effectively subjecting every State to its regulations. Continue Reading California Egg Update

We blogged most recently on December 27, 2018, about several states’ challenges in the Supreme Court to animal welfare laws enacted by both California and Massachusetts. The states sought permission to file suit in the Supreme Court under the Court’s original jurisdiction. On January 7, 2019, the Court denied leave to file.

The Solicitor General had strongly recommended that the Court not exercise its original jurisdiction, asserting that a suit in federal district court would amply protect the challenging states and that the district court is far better equipped to resolve the complicated factual issues presented.

The newly sworn-in Attorney General of Missouri has announced that he will do exactly that.

Read more about the California Egg Law in our archive of posts on the subject-matter.

We had previously posted about the State of Missouri’s petition for certiorari to review California’s requirement that all eggs sold in the State conform to California’s minimum cage requirement for hens.  The Supreme Court has denied the petition.

The basis for the District Court’s and the Ninth Circuit’s dismissal of the case was that Missouri had not suffered any concrete harm to its sovereign interest, not the merits.  So it is likely that either Missouri or a Missouri egg producer will refile the lawsuit.

California egg law - carton of eggsOn October 19, 2019, and December 4, 2019, we blogged about the North American Meat Institute’s challenge to California Proposition 12.  Proposition 12 prohibits the sale in California of pork or veal derived from animals confined in conditions that do not comply with the strict California standards.  It builds on the previous ban on the sale of eggs discussed in Association des Eleveurs de Canards et d’Oies du Quebec v. Harris, 870 F.3d 1140 (9th Cir. 2017) (the foie gras case), about which we blogged on May 29, 2018.

As we reported on December 4, 2019, the District Court denied NAMI’s motion for preliminary injunction.  On October 15, 2020, the Ninth Circuit affirmed in a short, per curiam opinion.

The Ninth Circuit panel held that NAMI had presented no evidence that the purpose of the statute was to discriminate against out-of-state businesses.  It also held that Proposition 12 does not have a discriminatory effect because “it treats in-state meat producers the same as out-of-state producers.” Continue Reading Update on California Proposition 12

Our latest blog post on this proposition was on January 17, 2019, which discussed the efforts of various states to challenge California’s ban on the sale of eggs, pork and veal that have not been raised according to California’s strict standards for animal protection. Those standards establish minimum space requirements considerably more generous than the industry standards. The ban originally applied only to California farmers, but they quickly realized that they would be at a substantial competitive disadvantage if the ban did not apply to such foods produced in other states. In 2010, the legislature extended the egg ban to all states.

Continue Reading Update on California Proposition 12

On July 10, 2019, we last blogged about the several states’ war on advertising plant- or cell-based products as “meat.”  We suggested that the State of Missouri’s refusal to settle Tofurky’s lawsuit made no sense, because the State’s response to Tofurky’s motion for preliminary injunction effectively conceded the relief that Tofurky sought.  Judge Gaitan evidently agrees.  He has ordered the parties to participate in mandatory mediation.

Continue Reading Meatless Meat Update

We had previously blogged, most recently on December 27, 2018, about the constitutional challenge to California’s ban on the sale of foie gras produced by traditional force-feeding of poultry. On January 7, 2019, the Supreme Court denied certiorari in the producers’ challenges and that appears to end the matter.