What Would Question 3 Mean For Retailers?

The Recorder, October 31, 2016, by Richie Davis

Question 3 on the Nov. 8 ballot, to ban what its proponents say is inhumane treatment of farm animals in Massachusetts, would also ban the state’s retailers from selling products from mistreated farm animals anywhere.

Therein lies a hidden problem with a question that is expected to be approved by voters, directly affecting a Wendell family farm as the only agricultural operation in the state whose egg-laying operation would be affected.

The wrinkle is the Interstate Commerce Clause, which has kept a California law tied up in court for years despite victory of a ballot measure there, and which retailers believe may take place here if Question 3 passes. Ninety-eight percent of eggs sold in Massachusetts originate out-of-state, according to the New England Egg Council.

Question 3, which polls have shown is supported by about two-thirds of voters, would prohibit any farm owner from knowingly confining any breeding pig, veal calf or egg-laying hen in a way that prevents the animal from lying down, standing up, fully extending its limbs, or turning around freely.

The proposed law, which would take effect in 2022, also would prohibit any business owner or operator in the state from selling eggs intended for human consumption or any uncooked cut of veal or pork knowing that the animal was confined in prohibition of the law.

Diemand Farm in Wendell now keeps 3,000 egg-producing hens in cages in a way that could be interpreted by Question 3 proponents as inhumane, despite the family’s insistence that it’s safer than letting them run free. But until 2012, when federal new record-keeping regulations took effect, it had been raising 12,000 hens for eggs sold to Stop & Shop, Big Y and other area supermarkets.

“One of our arguments against Question 3 is that it violates the Interstate Commerce Clause,” said Bill Rennie, vice president of the Retailers Association of Massachusetts — a member of a coalition of opponents to the ballot measure focused on the added cost to consumers.

He accused the Humane Society of the United States, the prime mover behind the ballot question, of singling out Massachusetts as a liberal state where “we don’t have that type of production,” but the burden would be placed on other states to regulate animal confinement around the country.

“You’ll end up with another legal battle” if it passes and the state follows through with adopting the law, he predicts, but adds that since such a law wouldn’t take effect until 2022, it’s unclear when a legal challenge would be initiated, or by whom.

In California, where arguments were heard this week in a U.S. Court of Appeals case over a challenge to that state’s regulations after its HSUS-backed Proposition passed in 2009, eggs from caged chickens are still being sold in supermarkets, despite the fact that the state’s new regulations went into effect more than 18 months ago, according to Bradley Miller of the California-based Humane Farming Association.

“You can be guaranteed it will be challenged in Massachusetts” if Question 3 passes, Miller said, noting that California’s agricultural regulations specify 116 square inches of floor space per laying-hen, compared to a roomier 187 inches per individual cage at Wendell’s Diemand Farm. The lawsuit there is a result of California trying to impose its regulations on out-of-state egg suppliers.

Stop & Shop and Big Y spokesmen declined to comment for this article, referring their calls on this politically sensitive issue to their industry group, Massachusetts Food Association. Association spokesman Brian Houghton said its members are concerned that Question 3 will cause them added red tape because the measure would require them to obtain written certification that suppliers are farming according to the new rules, “and it is yet to be determined how it will be enforced and who is responsible for having these certificates.”

Meanwhile, the larger reality may be that perhaps seeing the handwriting on the wall, supermarket chains — including Wal-Mart, 7-Eleven, Publix and Kroger — announced that they plan to eventually sell exclusively cage-free eggs.

If that occurs, and the price becomes prohibitive, more people may resort to raising their own backyard laying hens, which Anne Diemand Bucci of Diemand Farms sees as a good thing, but adds, “Chickens (raised) for eggs are not supposed to have wild birds be able to have access to them. I throw my hands up a lot,” she adds, laughing at the reality that will likely lead her farm to drastically reduce their flock size and just sell eggs at the farm’s Wendell store.

Because Question 3 would also disallow pork products being sold if the pigs used were from sows raised in individual gestation pens, it also raises questions about the supply of pork in Massachusetts, even though there are no such commercial pig-raising operations that confine their animals in a way that prevents them from having sufficient room to move around, according to David Warner, a spokesman for the National Pork Producers Council.

Warner said the Interstate Commerce Clause would almost certainly be an issue because trade between states can’t be restrained unless it’s to protect public health and safety.

“That would affect a lot of pork,” he said, since 85 to 90 percent of sows in the United States are kept in confining pens. Although market hogs are housed in groups of 20 to 50 per pen, with room to “run around and lay down,” he said, they’re moved to much smaller gestation enclosures in which they can still lie down, but admittedly can’t turn around, largely to prevent the animals from hurting each other — a similar argument Diemand makes for keeping its laying hens in cages.