As reported here, Missouri and twelve other states asked the U.S. Supreme Court on December 4, 2018 to hear their challenge to provisions of the California Prevention of Farm Animal Cruelty Act that require any eggs sold in the state to come from hens that have space to stretch out in their cages. The plaintiffs allege that California’s egg law violates the U.S. Constitution’s Commerce Clause and is preempted by the Egg Products Inspection Act (EPIA). An earlier challenge was dismissed without prejudice in 2016 when the Ninth Circuit Court of Appeals ruled Missouri and other states lacked standing where they failed to show the California law would affect more than just individual farmers. The new lawsuit asks the Supreme Court to hear the case directly and includes an economic analysis intended to cure the standing defect by showing harm to consumers, including state institutions, such as prisons, that the plaintiffs argue must pay higher prices for eggs as a consequence of California’s egg law.

The U.S. Department of Justice (DOJ) filed an amicus brief on November 30, 2018 that recommends denying the states’ request. While grading standards under the EPIA must be uniform throughout the nation, the DOJ concludes that California’s egg law is not preempted because the federal law has no standards that address confinement conditions for egg-laying hens. Regarding negative prohibitions of the Commerce Clause, the DOJ questions whether the plaintiffs could ultimately demonstrate standing because their claim of injury depends on speculation about numerous decisions of third-parties in the marketplace. The DOJ further notes that resolving questions of standing and the merits of the case would require resolution of complex factual disputes that are better suited to a district court. Thus, the DOJ concludes there is no direct harm imposed by California of the type that the Supreme Court considers when exercising its original jurisdiction.

Unless the Supreme Court disagrees with the DOJ’s recommendation, egg producers will be left to make their case in the district courts while the issue of harm gets murkier as several restaurants and retailers pledge to switch to cage-free eggs in response to consumer concerns for animal welfare.