Eggs and Federalism

By Mike Dorf

Last week, United Egg Producers and the Humane Society of the United States agreed to jointly lobby Congress for a new law regulating the conditions under which egg-laying hens are kept.  The agreement, if implemented through legislation, would roughly double the square footage allocated to each hen--from around the equivalent of an 8 inch by 8 inch square to the approximate equivalent of a 12 inch by 12 inch square.  It would also provide for some "enhancements" for hens, including a place to perch and to lay eggs.  And it would regulate ammonia levels and the practice of starving hens to shocking their systems into producing more eggs.  The changes would phase in over time, not becoming fully enforced on all egg-producing farms until 2029.

As an ethical vegan, I am ambivalent about the agreement.  The proposed law would not at all address some of the worst features of the egg industry, of which I will mention only two.

1) Egg-laying hens have been bred to concentrate their protein in their eggs, and as a result, tend to be scrawny. That is true of roosters of the egg-laying breeds too, but of course roosters do not lay eggs.  Thus, it is not in the economic interest of a farmer to raise male birds, whose meat is not nearly as desirable as the meat of "broiler" chickens, who have been bred to maximize their muscle tissue.  Meanwhile, because a typical egg-laying hen is "spent" after about a year (and thus unable to produce enough eggs to justify the farmers’ not killing her), egg farmers breed millions of new egg-layers each year.  However, half the chicks are males, and thus useless. What becomes of these male chicks? They are killed right after hatching, sometimes placed in garbage bags and suffocated, sometimes gassed en masse, and otherwise simply thrown fully conscious into a meat grinder.  These practices will continue under the UEP/HSUS agreement.

2) When chickens have plenty of room, they are social creatures, with the "pecking order" enforced in ways that avoid serious conflicts and violence to one another. But, like most other animals (including humans), their behavior changes under extreme crowding, creating the danger that they will hurt one another with their beaks.  Even under the agreement, hens will be crowded closely enough together that the pecking risk will motivate farmers to continue a practice of de-beaking, i.e., cutting off the end of each baby chick's beak without anaesthesia.  Chickens use their beaks much in the way that we use our fingers, so they have many nerve endings, making the de-beaking process very painful.

These and other practices on so-called cage-free and other supposedly more humane farms lead me to think that even if the agreement will improve conditions from unspeakably atrocious to merely atrocious, that is not exactly a reason to celebrate.  (For a quick slide-show, click here.) Still, the best should not be the enemy of the good, or even of the slightly less awful. Thus, if I thought that demand for eggs were unchangeable, I would regard last week's agreement as a tiny step in the right direction.  (For a view along these lines, with a more positive spin, click here.)

But demand for eggs varies based on a host of factors, including consumer perception of the health costs and benefits of eggs, as well as the public's ethical views. With respect to the latter, people will hear about the agreement and will see more eggs with labels like "eggs from hens not raised in battery cages."  (The agreement would allow larger cages called "colony cages" of 4 feet by 12 feet, housing about 50 hens.) I worry that consumers who care about the treatment of the hens who lay their eggs, but who lead busy lives and don't have the time to become fully informed, will now conclude that the hens are well-treated, and so people who otherwise would have reduced their consumption of eggs and other animal products, will not do so now.

In response to this worry, animal welfare advocates argue that campaigns to reform the worst abuses in animal agriculture have the beneficial side-effect of inducing reductions of overall consumption. The claim here is that people see things like battery cages and decide they don't want to eat any eggs, not just those that come from battery cages. Meanwhile, others contest these claims. So far as I can tell, the evidence is inconclusive, and so I don't know quite what to make of the point.

However, for argument's sake, I shall assume that the animal welfare advocates are right, that the media exposure that comes from campaigns to regulate the worst abuses suppress overall demand.  If so, then I think that makes the UEP/HSUS agreement worse, not better.  The reason is that if UEP and HSUS have their way, the federal statute implementing their agreement will preempt additional state animal welfare measures. Indeed, HSUS has already called off two state-level efforts to pass ballot initiatives regarding the treatment of hens. The current agreement is getting some media exposure now, but it will mean that the state-level campaigns that otherwise would have occurred across the country over the next decades now won't.  So on the welfarists' own logic, the agreement eliminates one of the main claimed benefits of their reform activities.

I'll conclude by taking off my ethical vegan hat and putting on my constitutionalist hat. I don't think the phenomenon I have identified is at all limited to the animal welfare and rights movements.  Legislative reform efforts often serve multiple functions for the political and social movements that stand behind them: They build an activist base; they forge bonds of solidarity; they raise public awareness of the movements more generally. So long as these movements seek change at the state and local level, they can continue more or less until they achieve all of their goals, and the attitudinal changes they engender may end up doing as much or more good than the legal changes. However, if reform efforts focus on the federal level--and if the organizational leadership accepts compromise measures that fall far short of their ultimate goals, as they likely will have to do, given competing interests with influence on Capitol Hill--then they will undermine their ability to reap the beneficial side effects of state and local activism.

That doesn't mean that social and political movements should never turn to the federal government.  Sometimes reform gets "stuck" at the state and local level.  Or the benefits of the federal legislation may outweigh the cost in the foregone beneficial side effects of state and local campaigns. But movements should always be leery of the very real costs of federalization.