Like most animal advocates, I was thrilled when California’s Proposition 2 passed back in 2008, as it prohibited three of the cruelest agricultural practices of our time: battery cages, gestation crates and veal crates. Prop 2 promised future animals a better life – or, perhaps more precisely, a less horrible one.
Ensuring that millions of hens have “less horrible” lives is nothing to sneeze at: incremental change can be an important tool for benefiting animals. But as a recent investigation released by DxE shows, Prop 2 has already proven a colossal failure, and worse yet, it has helped perpetuate the misperception that the problem of animal suffering in farms has already been solved.
Prop 2 was doomed from the start, due in large part to a failure in legislative drafting. To begin with, Prop 2 required that egg-laying hens have sufficient space to “fully spread both wings without touching the side of an enclosure.” While this is a simple enough concept and sufficiently specific to survive constitutional scrutiny, in practice, the lack of a numerical minimum space requirement has created a situation where producers are reluctant to expand the enclosures for egg-laying hens, fearing that competitors will seize upon the statutory language’s ambiguity to undercut them.
Indeed, while the Humane Society of the United States says that Prop. 2 requires at least 200 square inches of space per hen, Dr. Joy Mench of UC Davis, in a study commissioned by the California Department of Food and Agriculture (“Determination of Space Use by Laying Hens“), concluded that while an individual hen would require 322 square inches to be in compliance with Prop 2’s wing flapping requirement, as little as 90 square inches per hen might be sufficient in an enclosure holding 60 hens because “hens spend a significant portion of their day standing” and hens aren’t likely to be flapping their wings all at once. This same paltry 90 square inch figure was cited as potentially sufficient for Prop 2 compliance by the Association of California Egg Farmers. Still other egg producers rely instead on California’s Shell Egg Food Safety regulations, which require just 116 square inches of space per hen.
Even more problematic than the lack of an exact dimensional space requirement for hens, however, is Prop 2’s complete lack of a viable enforcement mechanism, such that any and all administration of Prop 2 falls to local animal control and sheriff’s departments, who have neither the resources nor the background knowledge necessary to hold facilities accountable. Indeed, I spoke with several local animal control and sheriff’s’ departments who had never heard of Prop 2, and upon being so informed, stated that “the USDA deals with farm animal stuff.”
Most shockingly of all, in the seven years leading up to Prop 2’s effective date and the eight months since, local law enforcement and animal control departments have yet to receive a single word of guidance from the state as to how Prop 2 should be enforced. Lacking any direction from the state, local animal control and sheriff’s departments have little choice but to limit enforcement of Prop 2 to responding to complaints. Of course, this type of passive enforcement approach amounts in practice to zero enforcement, since the only people with consistent access to these facilities (i.e. producer-employers and employees) tend to have no interest in making such complaints. It comes as no surprise then that in the eight months since Prop 2 took effect, not one local law enforcement department in California’s 58 counties has made a single Prop 2-related prosecution, nor even received a single Prop 2-related complaint.
As for out-of-state enforcement, subsequent to the Prop 2’s passage, California lawmakers passed AB 1437, a law that requires all eggs sold into the state be produced in compliance with Prop 2. However, seeing as local law enforcement lacks the capacity to respond to out-of-state complaints, Prop 2’s out-of-state application has been rendered null. Moreover, even assuming that California egg buyers, such as grocers, sought to require some confirmation from its out-of-state suppliers that its eggs conformed with Prop 2, there is currently no way of verifying that claim by the out-of-state egg suppliers.
For all its glaring flaws, Prop 2 could nonetheless have had a positive impact for animals, serving as persuasive evidence that California voters care about animals’ well being. Unfortunately, the value of any political momentum secured by the Prop 2’s passage has been outweighed by the deception perpetrated against those same voters in the interim. For seven years, Californians have operated under the reasonable assumption that battery cages would be obsolete come January 1, 2015, with any non compliant producers facing criminal liability as a result. Instead, Prop 2 has served as yet another painful reminder that when it comes to even the most ballyhooed animal welfare laws, absent an enforcement regime, it’s all just words on a piece of paper.
And yet it’s not too late to salvage Prop 2 as effective legislation for the protection of animals. Rather than futilely waiting for a parade of whistleblowers to miraculously emerge from the woodwork with Prop 2 complaints, the burden falls on animal advocates to register such complaints themselves by participating in and/or supporting investigations of the relevant facilities. And when (1) these investigations inevitably reveal conditions so painfully crowded that filth-covered hens cannot even turn around or flap their wings, and (2) law enforcement drags their feet in taking any enforcement action, we will then (3) share our evidence with the public, finally disabusing it of the notion that Prop 2 has made conditions for egg laying hens even slightly “less horrible.”