California voters sent a clear message four years ago when they overwhelmingly approved Proposition 2, a ballot measure banning the "cruel confinement" of certain types of farm animals.
What's followed has been nothing but confusion, complain commercial egg farmers. They're seeking certainty on what kind of enclosures for the state's 20 million laying hens will be considered legal under the law.
Proposition 2 did not provide specific dimensions for hen cages. It simply said that chickens needed to be able to perform certain behaviors, such as standing, turning and spreading their wings without bumping into the side of a cage or another hen.
The 2015 deadline to comply or face possible criminal prosecution is in the wings. "The clock is ticking," said Sacramento attorney Dale Stern, who represents the Association of California Egg Farmers. "We're still back to the question, 'How much space do we need to provide each hen?' No statute has defined that yet."
The Standards for Confining Farm Animals Initiative first called the Prevention of Farm Animal Cruelty Act by the Humane Society and other supporters was added to the California Health and Safety Code in 2010. The ballot measure received more votes than any initiative in state history, and included calves raised for veal, pregnant pigs and egg-laying hens.
The latter has caused the most confusion and concern, in part because the law covers not only eggs laid in California, the nation's fifth-largest producer, but those brought in from out of state.
Proposition 2 has faced two court challenges already. The first, filed in Fresno Superior Court in 2010, unsuccessfully sought clarity as to the type and dimensions of hen housing called for by voters. A federal judge dismissed the second lawsuit, brought by a Riverside County egg producer, in August. That suit alleged that the legislation's "vagueness" violated the federal due process clause.
Attempts to grapple with the issue are also under way on Capitol Hill. The Humane Society and the United Egg Producers unlikely bedfellows teamed up with other supporters to back an amendment to the federal Egg Products Inspection Act. The legislation, co-sponsored by California Sen. Dianne Feinstein and strongly opposed by most cattle and pork producers, spells out national hen-housing standards and puts an end to the state-by-state approach.
Under the proposed federal law, egg farmers would have up to 18 years to provide hens 124 square inches of space apiece, and would be required to label specifically which type of caging they use.
California farmers would be the exception; they still would need to comply with the 2015 deadline approved by state voters.
"It's a very difficult pill to swallow, but it's better than having no clarity and no national standard at all," Stern said.
Feinstein faces opposition from lawmakers such as Rep. Peter King, a Republican from Iowa, the nation's No. 1 egg producer. He also backs an amendment to the federal farm bill that would block states from enacting their own laws like Proposition 2, which could keep Iowa eggs out of California.
His amendment, the Protect Interstate Commerce Act, says that individual states cannot ban certain food products from outside their borders even if they object to how they were produced.
State egg farmers say they'd hoped for specifics in implementing Prop. 2, and looked to the California Department of Food and Agriculture for guidance. The agency, in turn, says it has no plans to issue instructions, telling The Bee this week that, "While we recognize that Prop. 2 has a significant impact on many of our egg producers, it does not provide for the development of clarifying regulations by the Department."
The department did hire hen behavioral specialist Joy Mench from the University of California, Davis, to weigh in on how much space hens need.
"The real kicker is (to) raise both wings without touching the sides of the enclosure or another bird. Of all the behaviors that are listed, that's the one that consumes the most space. What makes it also a little more complicated is that the hens hardly ever perform that behavior," Mench said. Still, she determined through measuring and videotaping hens from all angles that they would need at least 90 square inches apiece to meet the intent of Prop. 2.
That's slightly less than the European Union's 116-square-inch standard, which its members use for cages that include nesting boxes and other amenities.
In contrast, most of California's commercial egg producers still use cramped "battery cages," adopted by the industry in the 1950s.
One California firm that already has revamped its hen cages is Modesto-based JS West Companies, which built two new barns in recent years that reflect the European model of "enriched colonies."
Each barn houses 4-by-12-foot enclosures holding 60 birds apiece. That's nearly twice the space of the normal cages, and includes the nesting boxes, perches and scratch areas that allow hens to display more of their natural behaviors, said Senior Vice President Jill Benson, whose great-grandfather started the egg business.
JS West spent $3.5 million per barn. So far, just 15 percent of their 1.8 million hens are living in the bigger cages, Benson said. The firm will likely refurbish the remainder of its barns instead of building new facilities.
"We can really tell that the hens are very content," Benson said. "They produce a little bit more. They have lower mortality. They're living better. The downside, of course, is that they eat a little bit more."
Wayne Pacelle, president and CEO of the Humane Society of the United States, said his organization compromised on the per-square-inch space requirements in the Feinstein law pending in Congress. But if the bill fails and California is left with Proposition 2, he argues that 124 square inches per hen, even with enrichments like nesting boxes and perches, won't be enough to satisfy the voters' intent.
"We think that if the birds had 200 square inches, not 124, then that would be satisfactory for Prop. 2 compliance." he said. "Two hundred inches is very safe."