HSUS and the 'pottery barn rule'

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If you walk into a store with a lot of fragile objects, you might see a sign that says, “You break it, you own it.” Although the pottery barn doesn’t have this rule, despite the common misconception, it is a principle firmly ensconced in legal precedent. And by the same reasoning, the fate of the potentially broken California egg industry is now owned by the Humane Society of the United States. Even if you’re not in the egg business, the scrambling and the disarray are worth noting.

HSUS was the major funder and promoter of the Proposition 2 campaign in California. HSUS pushed that campaign to require more space for egg layers in spite of research showing that the regulations could bankrupt the state’s egg industry—so said UC-Davis agronomists. Promar International, an agricultural research firm, came to a similar conclusion.

In short, HSUS pushed a campaign with the knowledge and obvious intention of driving the state egg farmers out of business. For every job lost in California as a result, HSUS needs to take responsibility.

HSUS might reply that it tried to get national egg standards that would spread the pain across the industry, i.e. the “level-playing-field” argument. That’s just a ruse. By increasing production costs for more farmers, it would simply spread the job loss as smaller farms with less access to capital closed because they couldn’t afford the federal mandate. There would be losses nationwide instead of just in one state—but that’s hardly something to crow about.

At this writing, we are now presented with the following playing field: The federal Egg Bill requiring larger cages hasn’t passed; there’s Prop 2 compliance uncertainty with an approaching deadline; and there’s the possibility of the King amendment passing in Congress, which prevents California from banning out of state eggs from farms not in compliance with CA standards. 

If King’s amendment passes, we’ll be right back to where we were after Prop 2: With an HSUS law that was logically going to result in putting state egg farmers out of business. If that’s the case, farmers may move elsewhere.

But let’s assume the King Amendment doesn’t pass, and that the Egg Bill likewise doesn’t pass. Where does that leave Prop 2 and egg farmers both in California and elsewhere?

Right now, that still seems up in the air — thanks, again, to HSUS.

While a state court recently upheld Prop 2, rejecting claims from farmers that the law was unclear, it remains to be seen if further litigation will occur—from HSUS. Since Prop 2, HSUS has been dodgy on just how much space per chicken is required to abide by the law.

This summer, the California Department of Food and Agriculture defined Prop 2 as requiring 116 square-inches per hen. But HSUS has, over the course of the past several years, given differing answers on the square inches it sees as satisfying the law. HSUS claimed in 2010 that it was “crystal clear” that Prop 2 required all farms to go cage-free. Then, this year, HSUS said that 200 squares inches would meet the requirements of Prop 2.

So which is it?

HSUS has told the media that, if the federal egg bill fails, it will as a general rule not accept 116 square-inches as an acceptable housing standard for egg-laying hens. So it’s fair to wonder whether, if the egg bill doesn’t pass before January 1, 2015, when Prop 2 goes into effect, whether HSUS will challenge the California Department of Food and Agriculture’s determination that 116 square-inches is sufficient under Prop 2. (Is your head spinning yet?)

Frankly, there’s no reason to think that HSUS won’t sue. If it didn’t, it would be ceding territory on its own initiative. And the result of a challenge to the CDFA could be damaging to California egg farmers, many of whom have likely already started investing in Prop 2 compliance.

If California tries to enforce the law that applies Prop 2 to anyone trying to sell eggs in the state, litigation will likely be launched in federal court on the grounds that it interferes with interstate commerce. And that will continue the drama for several years. A state may interfere with interstate commerce in limited circumstances when the health of citizens is at risk, and the writers of AB1437 stretched themselves into an argument that eggs produced in non-Prop-2-compliant housing would be a health risk.

But the evidence that larger cage or cage-free eggs are significantly more Salmonella-free is weak at best. It’s quite possible that a court could toss the protectionist AB1437. That scenario would leave egg farmers in California where they were right after HSUS successfully passed Prop 2: Screwed, thanks to HSUS.

So what’s the lesson here for anyone in the ag community? Don’t let HSUS make inroads and get the upper hand. These vegans and their attorney friends will pull out the stops to attack agriculture. Sometimes it’s a frontal attack. Sometimes it’s through a backdoor approach. In any event, it’s important to be proactive and to stay on offense. If you don’t, HSUS will happily take the initiative. And they aren't afraid to own the breakage in the industry. 

Rick Berman is Executive Director of the Center for Consumer Freedom, a nonprofit coalition supported by restaurants, food companies and consumers to promote personal responsibility and protect consumer choices. The views presented here are expressly those of the author. Visit HumaneWatch.org to learn more.

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maggie b    
USA  |  September, 23, 2013 at 08:47 AM

I'm surprised that the farmers aren't up in arms over the new USDA APHIS rules governing the sale of pets. We don't care because we are exempt and don't sell pets is short sighted. Farm animals are specifically included in the rules if sold as pets. While that doesn't seem a big deal it is the foot in the door. For a person raising Dwarf Goats it can be problematic as they can no longer ship a goat as a pet which means the small males will have to go as meat or someone has to pick them up in person. Rabbits are included. Right now meat, fiber & breeding animals are exempt but the stroke of a pen at animal right riddled USDA can change that just like it did for hobby breeders. The whole thing is to "control puppy mills" but what has that got to do with goats or rabbits. Why should the public be restricted from free commerce because there are people breaking current animal cruelty laws? "Ask not for whom the bell tolls...."

maggie b    
USA  |  September, 23, 2013 at 08:52 AM

Right now in West Hollywood it is illegal to buy a fur coat. Goose livers are banned from Restaurants, pet stores aren't allowed to sell certain pets if any at all, to breed a dog or cat you have to pay a large fee. If we don't stop being complacent about these inroads into our freedoms as Americans we'll wake up one day regulated out of business. This article says it well: http://time4dogs.blogspot.com/2013/09/rock-bottom.html? utm_source=feedburner&utm_medium=email&utm_campaign=Feed%3A+Time4Dogs+%28Time+4+D ogs%29

Iowa  |  September, 23, 2013 at 09:19 AM

Agricultural standards change. Nobody has to tell the American farmer that. Just like every business in the world, farming incorporates new technology and new information every day. One thing has remained true, though. Miserable animals don't produce. If egg laying hens were really horribly mistreated, the HSUS wouldn't have to try to put egg farmers out of business. The hens would do it for them. If there is any measurable welfare advantage to open housing of chickens, farmers will move to it naturally over time, because it will make good business sense. The HSUS, on the other hand, doesn't care about business sense. They only care about depriving you of the right to choose a diet that includes animal protein. They talk animal welfare and food safety, but their real goal is to put an end to animal agriculture. I feel sorry for the egg farmers of California and the egg consumers of California. I can only hope that seeing the effects of HSUS-driven legislation will open the eyes of California's voters.

kansas  |  September, 23, 2013 at 12:41 PM

Great article and even better Comments from Maggie b & Tonia. I'm hoping everyone will get a chance to read their wise and accurate words... AND that THEY are or will be in LEADERSHIP roles in our industry. Keep up the good work people!

Ohio  |  September, 23, 2013 at 02:27 PM

First the poultry producers need to follow the Florida lead and file an inverse condemnation law suit to force the state to pay for the updates to their facilaties that the state demanded. Second if the King ammendment does not pass, then come Jan 1, 2015 eggs in California will go to $10.00 / dozen and dissapear as consumers want to know what happened. They producers need to be ready introduce an initiative to repeal prop 2. Let the deadline happen. As for HSUS filing a law suit - they have no standing.

Joisey  |  September, 25, 2013 at 07:18 PM

"HSUS has told the media that if the federal egg bill fails, it will as a general rule not accept 116 square inches as an acceptable housing standard for egg laying hens." Who put HSUS in charge of the animal agriculture industry? HSUS is not a government agency. Are they misleading the media about that? People do not donate to the HSUS in order to enable them to attack farming. Pacelle and his minions are all about economic sabotage. When they were younger, the sabotage was accomplished through direct action - raiding fur farms, property destruction, promoting arson, etc. Today, their economic sabotage consists of regulation, legislation, and litigation. HSUS has neither the credibility nor the expertise to do any of this. And an organization as corrupt as HSUS should certainly not be setting the ethical standards for people who actually work for a living. That would be the centerpiece of my argument if I were involved in farming. A wacky judge in New York just announced that the NY Police Department would soon be overseen by a bunch of anti-police activists, race baiters, academics, and lawyers. Crime has already risen there. HSUS overseeing animal agriculture is just as destructive.

Andreas Briese    
Germany  |  October, 07, 2013 at 08:41 AM

Have in mind that even a space-allowment of 116 square-inches per hen would be far behind the European legal minimum requirements for hen-housings.

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