States that, until recently, sold a total of 2 billion shell eggs a year in California clearly don’t intend to give up on that lucrative Golden State market without a fight. After first getting tossed from federal court, they’ve now returned with bulked-up arguments to the U.S. Court of Appeals for the Ninth Circuit. The appeal filed last week came a little over two months into California’s ban on the retail sale of raw shell eggs from both in-state and out-of-state producers caging laying hens in spaces not large enough for the birds to spread their wings. California consumes about 9 billion eggs a year, but only produces about 5 billion. California voters imposed the cage requirements on state egg producers via a 2008 ballot measure known as Proposition 2. The campaign portrayed Prop 2 as advancing animal welfare and food safety. eggsinbulk_406x250During a lengthy lead time to allow California egg producers to adapt to the change, the California Assembly amended Prop 2 to “level the playing field” by extending its provisions to the out-of-state egg producers needed to provide the additional 4 billion eggs state residents consume. In the appeal and accompanying amicus brief filed March 4 in San Francisco, attorneys for six egg-producing states have dramatically upped their game in challenging the legal authority of California to restrict its egg market only to producers that comply with the new cage-size requirements. Their initial challenge to the imposition of the California law on producers was dismissed by a lower federal court this past October without getting to the merits. That action allowed the new law to take effect as scheduled on Jan. 1, 2015. In an 80-page appeal brief filed on behalf of the states of Missouri, Nebraska, Oklahoma, Alabama and Kentucky, and Iowa Gov. Terry E. Branstad, the appellants cite 56 previous findings of case law in support of their arguments. The accompanying amicus brief filed in support by Parker Douglas, Utah’s federal solicitor, includes 30 case citations of its own. J. Andrew Hirth, deputy general counsel for Missouri Attorney General Chris Koster, authored the appeal to the Ninth Circuit. The first barrier he must overcome is to persuade the appeals court panel that the lower court judge erred in dismissing the original complaint “for lack of parens patriae standing.” Parens patriae is a legal doctrine that is often used to give states legal standing in federal courts. The Latin phrase is translated as “parent of the fatherland,” and the doctrine, according to legal dictionaries, allows the state to intervene on behalf of those citizens who are in need of protection or help. The lower court judge ruled that private egg producers in states outside California were the only interests being represented by the states, and that was not enough to merit standing through parens patriae. “The court’s ruling was erroneous and should be reversed because Appellants sufficiently alleged injury-in-fact to our quasi-sovereign interests in (1) the economic well-being of our people, and (2) securing the benefits that should flow from Appellants’ participation in our federal system,” Hirth states in the appeal brief. In his legal argument, Hirth notes previous case law finding that the standing of states should be recognized by federal courts unless it is “beyond doubt” that there is no set of facts that supports the claim. “The Supreme Court has long recognized that a State’s interests in the health and well-being of its residents extend beyond mere physical interests to economic and commercial interests,” Hirth writes. “A State may establish parens patriae standing based on this quasi-sovereign interest by showing that unlawful conduct or the enforcement of an unconstitutional regulation ‘limits the opportunity of (its) people, shackles (its) industries, retards (its) development, and regulates (the State) to an inferior economic position among (its) sister States.’” Egg markets in California and across the U.S. have been impacted since Jan. 1, the date the new law took effect. A shortage of eggs legally available for retail and restaurant sales in California is forcing consumers there to pay some of the highest prices ever paid. Take restaurant and food service eggs, which are sold in boxes containing 15 dozen eggs. A box of those eggs that went for $8.50 a year ago are now fetching $53. There are also reports of eggs diverted from the California market being sold elsewhere and brining egg prices down in other areas. The six egg-producing states that have gone to the Ninth Circuit are suing California’s Attorney General Kamala D. Harris and Secretary of Agriculture Karen Ross. The Humane Society of the United States, which pushed Prop 2, and the Association of California Egg Farmers, which lobbied to include out-of-state producers under the law, are named as intervenor defendant appellees. The non-California egg-producing states want the shell egg restrictions declared unconstitutional and stopped from being enforced. The appeal suggests that the food safety rationale for Assembly Bill (AB) 1437, the bill amending Prop 2, was bogus. The stated purpose of AB 1437 was “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 that may result in increased exposure to disease pathogens including salmonella,” Hirth writes. “However, no scientific study conducted to date has found any correlation between cage size or stocking density and the incidence of salmonella in egg-laying hens,” he continues. “Additionally, the most recent studies establish there is no correlation between cage size or stocking density and stress levels in egg-laying hens.” Further, Hirth writes that the legislative history of AB 1437 instead suggests that the true purpose of the amendments “was not to protect public health but rather to protect California’s egg farmers from the market effects of Prop 2 by ‘leveling the playing field’ for out of state egg producers.” Hirth points to the California Department of Food and Agriculture’s (CDFA) own analysis of the enrolled bill report for AB 1437 where the agency states that finding a public health justification for limiting the confinement of laying hens will “prove difficult because, giving the lack of specificity as to confinement limitations, it will invariably be hard to ascribe any particular public health risk for failure to comply.” While doubting the “federal judiciary” will allow it, CDFA nevertheless urged the governor to sign the bill because to not do so would mean that its egg producers would no longer be economically competitive and the state would experience a significant loss in jobs and tax revenues. In signing the bill, then-Gov. Arnold Schwarzenegger made no mention of public health, but instead said that an amended Prop 2 was good for both California egg producers and animal welfare. The appeal states that as the effective date of the new shell egg law approached, the six states turned to the federal courts to blunt California’s attempt to regulate commercial conduct within their respective sovereign borders. It also notes that 90 percent of the caging systems used to house the 280 million laying hens required to produce 80 billion eggs consumed annually by Americans are the ones California wants to ban for economic purposes.