Humane Society of the U.S. cuts deal with United Egg Producers to seek federal law

From ANIMAL PEOPLE,  July/August 2011:

WASHINGTON D.C.–“For years we’ve been clashing with the United Egg Producers over the treatment of laying hens,”  e-mailed Humane Society of the U.S. factory farming campaign manager Paul Shapiro from a July 7,  2011 press conference.  “If someone had told me that we’d be doing a joint press conference with the UEP,  I’d have thought they’d eaten some bad egg replacer. But indeed, that’s exactly what’s happening right now.  We’re announcing that both the UEP and HSUS will endorse federal legislation intended to improve the treatment of the 280 million laying hens used in the U.S. each year.”

The proposed law that HSUS and UEP agreed to push,  Shapiro summarized, would “require the nationwide elimination of barren battery cages,”  in favor of “phased-in construction of new hen housing,”  to “provide each hen nearly double the space they are currently provided,”  with “environmental enrichments,  such as perches,  nesting boxes, and scratching areas,  so  that birds can engage in natural behaviors currently denied to them.  The proposed law would also “mandate labeling on egg cartons to inform consumers of the method used to produce the eggs,  such as eggs from caged hens or eggs from cage-free hens,”  Shapiro said.  The proposed law would further “prohibit forced molting through starvation– inflicted on tens of millions of hens each year,  which involves withholding food from birds for up to two weeks to manipulate the laying cycle.”

Ammonia levels in hen houses would be limited.  The sale of eggs and egg products by non-compliant farms would be banned from interstate commerce nationwide.  Federal law may not restrict commercial activity occurring completely within a state,  such as keeping hens in battery cages to produce eggs only for consumption within the state.  But there are few if any egg producers whose output is not in some manner sold in interstate commerce,  if only as ingredients in products such as cake mixes and noodles.

“Some provisions [of the proposed law] will be implemented nearly immediately after enactment,”  said Shapiro, “such as those relating to molting,  ammonia,  and euthanasia [of ‘spent’ hens],  and others after just a few years,  including labeling and the requirement that all birds will have to have at least 67 square inches of space each,”  up from the present norm of 48 square inches each.

By 2029 the proposed law would require white laying hens to have 124 square inches of space apiece.  Brown laying hens,  who are larger,  would get 144 square inches apiece.  After 2011, UEP-certified egg producers will not be allowed to install new caging which cannot be modified to meet the agreed standards.  “The agreement does not ensure cage-free conditions,”  Shapiro acknowledged,  “which would be preferable,  but it is a remarkable step forward.”

HSUS president Wayne Pacelle and Farm Sanctuary founder Gene Baur issued similar summaries of the HSUS/UEP agreement several hours later. Farm Sanctuary called the agreement “A groundbreaking move that should result in the greatest advancement for farmed animals in U.S. history.”

Federal law normally pre-empts state legislation where there is a conflict,  but some federal laws,  such as those governing automotive emissions,  include exemptions allowing states to enforce higher standards than those that are federally prescribed.

“To protect Proposition Two,  the  landmark laying hen welfare initiative passed in California in 2008,”  Pacelle said, “Calif-ornia egg producers–with nearly 20 million laying hens–would be required to eliminate barren battery cages by 2015,  the date Proposition Two goes into effect,  and provide all hens with environmental enrichments,  such as perches,  nesting boxes,  and scratching areas,”  ahead of the national deadline.  “This will apply to the sale of all eggs and egg products in California,”  Pacelle added.

Proposition Two,  reinforced in 2010 by a law requiring all eggs sold in California to meet the Proposition Two standards by 2015,  required that laying hens be able to stand up,  lie down, turn around,  and fully extend their limbs.  HSUS had interpreted this to mean that laying hens must be kept in cage-free environments. But the American Humane Associ-ation in June 2010 announced a deal with the egg producer J.S. West,  of Modesto,  California,  which holds that Proposition Two allows the use of “enriched” cages like those that must be used in the European Union by 2012,  in place of traditional battery caging.

After J.S. West invested $3.2 million in becoming the first major U.S. producer known to use “enriched” cages, the AHA authorized J.S. West to use the “American Humane Certified” logo.  “There’s going to be a legal wrangle over this,”  Pacelle predicted then to New York Times reporter Erik Eckholm.

“Talks between HSUS and UEP started after HSUS said it recognized that there were benefits to [caged] colonies [of multiple hens per cage],  reversing a position that it only supported cage-free egg production systems,”  wrote Rod Smith of the agribusiness trade journal Feedstuffs.

“Proposition Two was facing a court challenge and the outcome was uncertain on what the ballot language would mean in terms of space,”  Pacelle told ANIMAL PEOPLE,  “so we are pleased to reach some agreement with the egg industry and have the new space requirement and enrichments take place on a faster timeline than the rest of the country.  The California sales ban on eggs that don’t meet these standards would also be implemented nationwide,  and the labeling of egg cartons would allow consumers to reach for a higher animal welfare standard.”

The latter provision won praise from Compassion Over Killing, whose lawsuits obliged the UEP to phase out the use of egg cartons labeled “Animal Care Certified” by April 2006.  When the cartons remained in use for two more years,  CoK sued UEP again.

UEP and the American Humane Association meanwhile agreed in March 2008 to a reciprocal labeling scheme which allows producers who pass an American Humane Certified audit and meet the UEP Certified Program guidelines to market eggs as both UEP Certified and American Humane Certified.  CoK has subsequently “urged the Food and Drug Administration to pass a Truth in Egg-Labeling requirement to address the rampant use of false or exaggerated claims throughout the egg industry,”  a CoK statement responding to the HSUS/UEP pact said.

“Part of the agreement involves the industry capitulating to federal rulemaking petitions filed earlier in the year by Compassion Over Killing and the Animal Legal Defense Fund that would have forced industry to tell consumers the truth about how hens who produce eggs live,”  said ALDF.  “If Congress moves quickly to pass the legislation” sought by HSUS and UEP,  “we can avoid an expensive lawsuit,”  ALDF added.

Industry response

The HSUS/UEP agreement drew a mixed response from agribusiness.  The National Pork Producers Council argued that federal legislation governing living conditions for laying hens “would set a dangerous precedent for allowing the federal government to dictate how livestock and poultry producers raise and care for their animals.”

But Smith of Feedstuffs saw the deal more positively.  “The concept is to have one national hen housing and space standard,” Smith wrote,  “rather than a patchwork of state laws and regulations that would create ‘chaotic marketplace disruption,'”  as a UEP statement put it,  “in which a producer with customers in several states would need to find ways to meet conflicting and different standards.”

Further,  Smith noted,  “As part of the agreement,  HSUS and UEP said they will not  ‘initiate,  fund or support’ any ballot initiatives or local or state legislation that would define hen space,  and they will not ‘initiate,  fund or support’ investigation of or litigation against each other or UEP members.”

Ballot initiatives

In compliance with the agreement,  HSUS suspended efforts to place measures similar to California Proposition Two on the next Washington and Oregon state ballots.

Reports suggesting that the agreement would end undercover investigations of factory egg farms by animal advocates tended to overlook that most such investigations have been done by animal advocacy groups other than HSUS–especially Mercy for Animals,  which has done more undercover videography inside factory farms than all others combined.

An Oregon Humane Society media statement quoting executive director Sharon Harmon “applauded the withdrawal of the short-sighted cage-free ballot initiative to be placed before Oregon voters,   and noted that a new Oregon law protecting egg-laying hens is now a model for proposed federal legislation,”  which “would require egg producers to fully transition to enriched colony systems by 2029. Oregon’s law,  in contrast,  would be fully implemented by 2026,” the Oregon Humane Society statement continued,  “a time frame that HSUS had criticized as being too slow.”

Added Harmon,   “I am concerned that the proposed federal legislation might preempt state laws,  as this means that fully implementing our new care standards could be delayed by three years if the law proposed by HSUS and the egg industry passes.”

Responded Pacelle,  to ANIMAL PEOPLE,  “The only reason that the Oregon Legislature took up the issue was the pressure HSUS applied.   The proposed federal law is stronger and has a broader reach than the Oregon state law in a number of ways.”

For example,  Pacelle said,  “The Oregon law would require 116 square inches per bird,  and nothing would be required until 2026.   The federal bill would require 124 square inches per white bird,  and 144 per brown bird,  with a faster transition [than in Oregon] as the new requirements are phased in,  with specific targets over a number of years until total 100% industry conversion.  The Oregon law has major exemptions and loopholes for eggs used in French toast,  noodles,  egg nog,  and other products, while the federal proposal would apply to the production and sale of all eggs and egg products.

“The federal proposal affects all 280 million laying hens in the [commercial] egg industry,”  Pacelle continued,  “including those in major egg production states like Iowa and Indiana where ballot initiatives are not allowed and state legislation was unlikely.”

Critics & skeptics

Charged Humane Farming Associ-ation founder Brad Miller, “This is a terrible,  terrible deal for farm animals.  Up until now, HSUS was condemning American Humane for being co-opted and going along with the industry on these exact issues.  The central provision of this so-called agreement would not even go into effect for another 18 years,  if ever.  Of course, the industry gets what it wants right away.  Immediately, the Washington and Oregon ballot measures are scrapped.  Immediately, the industry gains positive publicity and avoids the negative publicity of a ballot measure media campaign. Immediately,”  Miller anticipated,  if the proposed federal bill is passed without specific exemptions for stronger state legislation, as in the case of California Proposition Two,  “states would be explicitly prevented from outlawing cages–or doing anything to help laying hens beyond what the egg industry happily adopts on the federal level.  This is a frontal assault on state anti-cruelty laws,”  Miller said.

“Keep in mind,”  Miller warned,  “that once the federal legislative process is underway,  there is no way of knowing–let alone controlling–what the final outcome will be.  What enforcement will there be?  What criminal penalties will there be?  Nobody knows. For decades,”  Miller continued,  “farm animals and humane organizations have been haunted by the fact that commercial slaughterhouses have been largely beyond the reach of state animal cruelty laws due to federal preemption.   Now the industry is seeking to extend federal preemption into factory farms.”

United Poultry Concerns founder Karen Davis wondered what the HSUS/UEP-mandated “euthanasia” of “spent” hens might means “in the context of agribusiness.”

Davis also acknowledged the concern of vegan self-described “abolitionists” that “any effort to reform agribusiness will placate the public with illusions of ‘humane’ treatment of farmed animals having no basis in the reality of actual production.

“An additional reasonable fear in this particular case,” Davis continued,  “is that,  should a federal law be enacted, it will be a diluted version of the initial proposals.  Once the U.S. egg industry invests a projected $4 billion dollars into converting to ‘enriched’ so-called ‘colony’ cages,  that system will be firmly in place for the remainder of the 21st century, and probably far beyond.

“Acceptance of cages for laying hens [by animal advocates], however euphemistically ‘enriched,’  is a huge step backward,”  Davis opined.  “The only true way to animal welfare–to animals faring well,”  Davis said,  “lies in eliminating the demand for animal products in favor of vegan food.”

Commented Humane Farm Animal Care founder Adele Douglass,  “I am really pleased that HSUS and UEP have come together and agreed upon the UEP’s industry standard for laying hens.   That will end the wasteful time and expense of state ballot initiatives,  in which the HSUS was fighting to have cage-free production,  and the UEP was fighting for the ‘furnished cage.’  The time and money spent previously on these ballot initiatives–many millions of dollars–can now be spent by the industry in actually implementing the ‘furnished cage’ or ‘colony cage’ system,  and that will benefit laying hens in cages.
“We at Humane Farm Animal Care  will continue to only allow cage-free production,”  Douglass said.

“Consumers will continue to demand cage free production,”  she predicted,  “and eventually,  we believe that all egg production will be cage-free.”

Said Compassion in World Farming chief executive Philip Lymbery,  “We welcome the news.  We believe all egg-laying hens should live cage-free lives,”  Lymbery explained,  but  “This new development,  whilst not going far enough,  is a significant step in the right direction.”

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