What should the regulations for animal confinement be?

Voters in Massachusetts are poised to decide in a November ballot question whether the state should ban the sale of whole eggs, pork products, or veal from animals that can’t turn around or stretch their limbs within their cages. The prohibition would apply to producers both in and outside the commonwealth, with one of the biggest changes being that eggs sold in the state be “cage-free” when the law goes into effect in 2022, if voters agree to the proposal.

Proponents of the ballot initiative contend giving animals more living space improves their well being, ultimately leading to a higher-quality product and increased productivity. Consumers also stand to benefit, they argue, from a reduction in foodborne illness, as disease is less likely to spread as quickly in barns with more spacious quarters. Food producers, on the other hand, say doing so results in higher prices for consumers. They maintain battery cages and gestation stalls for breeding pigs—which the National Pork Producers Council said are used by more than 80 percent of producers nationwide—make it easier to ration feed, prevent animals from hurting one another, and administer medicine and other care.

The proposed referendum signals a sort of trend: Animal welfare groups are targeting the purchasing power of liberal, coastal states to gain momentum for later pushes in agriculture-heavy states. As the president of Retailers Association of Massachusetts, Jon Hurst, put it: They’re navigating a “path of least resistance.”  

And in Massachusetts, it’s likely to be a costly battle. A 2008 California proposal known as Proposition 2, on which the Massachusetts initiative is based, drew more than $10 million in spending from either side of the issue. Citizens for Farm Animal Protection, the coalition backing the Massachusetts initiative, had more than $925,000 cash on-hand as of January 22, according to state filings. Paul Shapiro, the vice president of farm-animal protection with the Humane Society, said he expects the coalition’s budget to reach “seven figures,” after additional fundraising and spending.

The Massachusetts legislature has a May 3 deadline to either approve or reject the initiative—the latter is the likeliest course, given animal welfare advocates have attempted to pass similar farming provisions through the capitol for a decade. If the legislature rejects it—or simply doesn’t act on the issue—then advocates will need an additional 10,000 signatures by July 6 to get on the November ballot.

If passed, the ban’s impact would primarily be felt beyond the Bay State’s borders. An overwhelming majority of Massachusetts’ eggs, pork, and veal is imported across state lines, and the few producers who remain in the state largely have moved away from the confinement practices targeted in the ballot initiative. Animal rights advocates say only one Massachusetts producer still uses “battery cages,” the cramped enclosure used for egg-laying hens that’s arguably the main mark for campaigners. The Massachusetts initiative specifies each hen would need 1.5 square feet, or 216 square inches, of living space, compared with the 67 square inches conventional battery cages offer.

The egg industry, which was the largest affected group in California and stands to be in Massachusetts as well, contends that the Golden State ballot proposal sent production into a tailspin and raised prices for consumers. Operating cage-free facilities increased costs per dozen eggs by 36 percent compared with battery cages, according to a March 2015 study by the Coalition for Sustainable Egg Supply, a research group compiled by the industry-funded Center for Food Integrity. The logic is “basic economics,” Hurst said: Producers who don’t comply with the law will shut down or scale back the number of hens they use to create more space, which will reduce supply while demand for eggs remains the same, in turn escalating prices.

Egg production and the number of hens laying eggs in California dropped sharply once its factory-farming law went into effect in 2015. The state produced 270 million eggs in January 2015, a 32 percent drop from the 397 million in January 2014, according to the Department of Agriculture. The total number of egg-laying hens in California also dropped to 11.5 million in January 2015, a 31.1 percent decrease from the previous year.

The Department of Agriculture fingered California’s regulations for generating uncertainty that widened the price gap between eggs sold in Southern California and New York to more than $1 per dozen. Prices for a dozen Grade A large eggs in California have since fallen to $1.94 after approaching $6 per dozen in the wake of the avian flu outbreak in 2015. Supporters of cage requirements have also pointed to a University of California-Riverside study that concluded producing cage-free eggs would cost less than a penny more per egg.

Chad Gregory, the president of industry group United Egg Producers, said farms that sell into Massachusetts could feel the pinch if the ballot proposal passes. “Because Massachusetts imports 99 percent of its eggs from other states, there is no question that this proposal, if passed, could have far-reaching, negative consequences for residents in the state who purchase and consume eggs,” Gregory said.

Still, it’s not clear whether the Massachusetts law would be enforceable, or even legal—the egg industry contends the California law conflicts with the Constitution’s commerce clause. A federal court dismissed a challenge brought by six states in 2014, saying no party had standing, but other egg-producing states are appealing the ruling on the grounds that laws in one state cannot induce a regulatory effect on the same industry in other states or place a burden on interstate commerce.

Some animal rights activists also say California law isn’t properly implementing its law because the proposal left both enforcement and measurements for animal confinement ambiguous. A recent report by animal rights group Direct Action Everywhere about a facility owned by JS West, a large California egg producer, found hens tightly packed, some with “growths and abscesses” and others dead and decomposing on the floor.

The Massachusetts initiative, however, improves upon the California design, said Wayne Hsiung, the co-founder of Direct Action Everywhere. It specifies dimensions for hen, veal calf, and pig living spaces while also making the attorney general responsible for issuing and enforcing regulations. Private citizens would be able to file complaints and the attorney general could hit producers with a $1,000 fine per violation. But verifying that producers across state lines are following the rules also presents its challenges, Hsiung said, adding that private-citizen whistleblower cases are tough to litigate—and that it would be difficult for such citizens to gain access to sites to allege wrongdoing in the first place.

Proponents are confident. The law would require retailers get “the equivalent of an affidavit from a supplier,” Shapiro, of the Humane Society, said. Nancy Perry, the senior vice president of government relations with the American Society for the Prevention of Cruelty to Animals, compared the enforcement regime to other consumer-protection standards in which the attorney general can stand up to wrongdoing by actors in other states. Advocates also believe producers are running out of reasons to maintain battery cages, gestation stalls, and veal crates because the private sector is moving away from them, too. Big purchasers such as McDonald’s, Walmart, Denny’s, Burger King, Sodexo, and Aramark have committed to going cage-free, subsequently driving producers to alter their practices. Legislation to outlaw gestation stalls in nine states has also pushed producers like Smithfield, the world’s largest pork producer, to eschew the pens.

“I think especially when you’re dealing with major producers I can’t really see folks taking the risk. The industry is definitely moving on in terms of all the major corporate announcements,” said Chris Green, the executive director of the animal law and policy program at Harvard Law School. But if the Massachusetts ballot initiative is taken up, it’ll be the voters who decide.