Update: On October 4, 2019, the North American Meat Institute filed a lawsuit challenging the constitutionality of California’s Prop 12.

Update: On November 6, 2018, California voters approved Proposition 12 by a large margin, making the animal-cruelty prevention measure state law.

In 2008, when California voters passed the Prevention of Farm Animal Cruelty Act, it sounded like a clear-cut proposition. The purpose of that ballot measure, known as Proposition 2, was “to prohibit the cruel confinement of farm animals in a manner that does not allow them to turn around freely, lie down, stand up, and fully extend their limbs.”

At the time, Prop 2’s sponsor, The Humane Society of the United States (HSUS) and its supporters, the voting public—and even opponents, including the Association of California Egg Farmers—interpreted the initiative as an outright ban on battery cages for laying hens. Slated to go into effect on January 1, 2015, it also affected crate sizes for breeding pigs and veal calves. But nothing about Prop 2 turned out as expected.

In the aftermath, the measure faced a slate of protests from commercial egg producers, including J.S. West & Co., which challenged its vague language in court. In the absence of specifics—including the term “cage-free”—the California egg industry created its own standard known as the “enriched colony housing systems.” Larger cages nearly doubled the square feet of space per bird, living up to the letter of Prop 2, but not delivering on the cage-free promise supported by a two-thirds majority of the voters.

Ten years later, HSUS is looking to right these wrongs with Proposition 12, a new anti-confinement measure. Up for the vote on November 6, the prop not only defines the minimum space requirements for hens, sows, and veal calves, but also bans the sale of eggs and meat products from confined animals that don’t meet the minimum standard. By 2022, it will outlaw cages for all laying hens to be replaced with either cage-free or outdoor housing systems.

Josh Balk, HSUS vice president, calls Prop 12 an important update. “A law passed during the Bush Administration should be updated to where we are in society now,” he says. “Consumers, major food companies, and other states are clear that there is a bright line in the sand where there is lack of acceptance of extreme confinement for animals.”

Prop 12 also strengthens enforcement. Prop 2 left it up to local officials to investigate complaints when farmers didn’t update their facilities, and there were no prosecutions. Under Prop 12, that responsibility will rest with the California’s Department of Food and Agriculture and Department of Public Health. In addition to any misdemeanor charge, violations will also be punishable as “unfair competition” under the California Business and Professions Code.

“There is no city, state, or country that has a law as strong as what Prop 12 will be,” says Balk, who sees near-unanimous support and expects it to pass by a landslide.

But as with any animal welfare measure, the situation is far more complicated than that. Along with the egg and hog industry groups expected to oppose any agricultural legislation governing the lives of animals, the staunchest opposition to Prop 12 is coming from other animal protection organizations.

The Humane Farming Association (HFA) and People for the Ethical Treatment of Animals (PETA) are opposed on the grounds that they believe the measure sets an extremely low bar for animal welfare while misleading voters that Prop 12 will lead to more humane living conditions.

“We must not ingrain cruelty by passing a regressive law that will keep hens in abhorrent conditions,” Tracy Reiman, executive vice president of PETA Los Angeles, wrote in an October editorial in the Sacramento Bee.

And while Prop 12 includes pigs and veal calves, the controversy centers on laying hens and egg production both inside and outside of California.

The National Cage-Free Movement

In the past 10 years, the egg market has shifted dramatically toward cage-free production. With consumers more concerned than ever about how their food is produced, more than 200 American food businesses have pledged to switch to a cage-free egg supply by 2025. The move is also backed by science with studies showing that Salmonella is more prevalent in caged facilities than on cage-free farms.

Many credit California’s Prop 2 with kicking off the national cage-free trend. “Prop 2 really helped to set the stage to get animals out of cages,” says Rachel Dreskin, the U.S. executive director of Compassion in World Farming (CIWF), which supports Prop 12. She notes the significance of Prop 12’s inclusion of liquid eggs, which she says make up one-third of the egg market. When changes like these are mandated in the fifth-largest economy in the world, she sees great potential for nation-wide impact.

And there are also consequences for consumers. Before Prop 2 went into effect, the egg industry predicted economic catastrophe. Initially, the average price for a dozen eggs shot up by an average of 22 percent, according to a Purdue University study. But by 2016, egg prices settled down to a 9 percent per dozen increase over pre-Prop 2 prices. The Association of California Egg Farmers is warning that Prop 12 will likewise bring “supply disruptions, price spikes, and a shortage of eggs for sale.”

Farmers also faced increased costs for the new housing and competition from out-of-state producers after Prop 2 passed. So, the state legislature quickly stepped in to approve an “egg sales law,” AB 1437, which banned the sale of imported eggs that did not comply with Prop 2. It survived lawsuits from Missouri and five other states that were found to have no legal standing in California.

Meanwhile, 12 other states have passed farm animal confinement bans through similar ballot measures. A 2016 Massachusetts law—which, like California’s Prop 12, bans the sale of products from illegally confined animals—is mired in lawsuits from other states citing a violation of interstate commerce rules. Prop 12 is expected to incur its own legal challenges from state attorneys general—and from Congress, if the King Amendment, which bars states from blocking the import of any product that meets federal standards, survives in the final version of the 2018 Farm Bill.

The major tipping point in 2018 is that while industry groups, including the National Pork Producers and Association of California Egg Farmers, oppose Prop 12, many commercial egg producers support it. Since Prop 2 passed, many farmers recognized the consumer demand for cage-free eggs and began investing in new housing systems to meet that demand, including J.S. West & Co., one of the companies that originally opposed Prop 2 and sued the state in 2010.

J.S West is not alone among large-scale operations that have experienced a change of heart. Central Valley Eggs, the largest cage-free egg producer in California, and which is building new facilities near Bakersfield that will house more than 3 million chickens, also supports the effort. General manager Jeff Peterson has been vocal in his support of Prop 12. “You’d have to have your head in the sand to build new cage confinement systems at a time when consumers and food retailers have expressed their preferences for cage-free production,” he said in a statement.

HSUS’s Balk sees this producer buy-in as critical to the animal welfare movement, since just 17 percent of laying hens nationally are cage-free. In addition to mandating new space requirements for hens—Prop 12 requires 144 square inches per hen until December 31, 2021 year, and then bans the use of any cages—the measure would set a new national standard for cages and crates for other farm animals, a standard that would mark an increase over the average space available to these animals.

Prop 12 requires that sows confined to gestation crates during pregnancy have 24 square feet of space, roughly an area of half a ping-pong table; male calves raised for the veal industry are afforded 43 square feet, or the size of a full-size ping-pong table.

Animal Welfare Groups Against Prop 12

A handful of animal welfare groups have mounted opposition to defeat Prop 12, summarized in the website Stop the Rotten Egg Initiative. The HFA asserts that California was already supposed to be cage-free as of 2015, and Prop 12 will legalize battery cages for six more years. “It repeals Prop 2,” HFA president Bradley Miller told Civil Eats. “This is a backwards step on what Californians already voted.”

HFA also alleges that HSUS is capitulating to the egg industry by including in Prop 12 the United Egg Producer’s preexisting space guidelines of one square foot per hen (144 square inches). Instead of improving the living conditions for laying hens, HFA, along with PETA and Friends of Animals, charge that Prop 12 will only pave the way for more factory farming with stocking densities that don’t come anywhere near HFA’s call for a minimum of 216 square inches per bird. “Central Valley Eggs is factory farming,” Miller says. “One square foot is cruel, any way you slice it.”

As for pigs and calves, Miller dismisses any real change to come from Prop 12; he notes that gestation crates are rare and veal crates are nonexistent in California’s small hog and miniscule veal industries. At the same time, Miller and other Prop 12 opponents question why the measure exempts the state’s giant dairy industry.

The state’s most sweeping anti-confinement law excludes the largest number of animals—aside from chickens—in California agriculture. As the nation’s number-one milk producer, California’s 1,300 dairies house 1.7 million cows along with their offspring. These calves are often housed in calf hutches, which these groups claim are extreme confinement conditions that violate the spirit of Prop 2.

A recent investigation by Direct Action Everywhere (DxE) called out this loophole in Prop 12. It suggests that the power of the state’s $6 billion milk industry has kept these dairy calves from the same protections that Prop 12 provides only to the few calves sold as veal.

When reached for comment, the California Milk Advisory Board representative referred Civil Eats to Emily Yeiser Stepp at the National Milk Producers Federation. Stepp was unaware as to whether dairy calves have ever been considered for inclusion in Prop 12. But she said that the industry’s science-based standards for dairy calves are similar to what Prop 12 requires for veal calves, and allows them to “easily stand up, lie down, express natural behaviors and to move around without the risk of injury.”

HSUS’s Balk defends Prop 12 as an important next step to significantly reduce the suffering of farm animals. Other animal welfare proponents acknowledge that one piece of legislation will not solve all the wrongs of factory farming. And they admit that even for the animals directly affected by Prop 12, it promises no utopia.

“It’s certainly better than the status quo of keeping animals confined in cages,” Balk says. And in the world of farm animal welfare, incremental improvements are monumental achievements.

Dreskin of CIWF agrees that Prop 12 is better than doing nothing. “We’re at a point in time when we have to do better,” she told Civil Eats. “It makes pragmatic and incremental change that will have measurable and meaningful impact on the animals in California and outside of its borders as well.”

It’s a long view of animal welfare reform that many animal welfare activists support, despite the measure’s limitations. DxE co-founder and investigator Wayne Hsiung actively supports Prop 12, unlike other leaders of this animal rights group.

“The government has been asleep at the wheel,” says Hsiung, who sees Prop 12 as a small step to put corporate control of animal agriculture in check. As a working lawyer, he’s under no illusions that it will curtail factory farming, but he adds, “This is the best we felt we can do, and I am in support of pushing the peanut forward.”