More State Lawmakers Propose To Regulate Farm Practices in Other States

Walter Olson

Three‐​quarters of the eggs sold in Maryland are raised in other states. HB0357 / SB0193, a bill in the Maryland General Assembly, presumes to impose “cage‐​free” standards not just on Maryland chicken farmers, but on farmers elsewhere who produce the other three‐​quarters of the supply, by making the sale of noncompliant eggs unlawful.

The Supreme Court’s closely divided decision last year in National Pork Producers Council v. Ross cleared the path for laws like these by making it less likely that courts would strike them down under the so‐​called Dormant Commerce Clause of the US Constitution, which courts have long read to disallow many state laws restraining interstate commerce.

The decision was split and not easily sorted out, but is widely read as giving a green light to a wide range of enactments of this sort. In particular, it apparently extinguished a former branch of Dormant Commerce Clause doctrine by which courts had identified and disapproved many extraterritorial applications of state law as such, rather than deciding on permissibility through the application of a sometimes‐​limp balancing test.

Whether or not laws like this would pass muster at the current court, they remain an aggressive and uncalled‐​for extraterritorial extension of state police power. A similar California law on pork was found to entail sending California agents to farms in other states, whose operators of course have no voice in the California electoral system.

Of course, there are also plenty of reasons to reject a bill like this on substance. An Arizona egg edict “doubled or tripled” egg costs for one restaurant operator, and by raising the price of eggs at the grocery store, the measures stand between poorer families and one of the healthy protein sources most in reach for them.

“By moving to a cage‐​free operation, the hen mortality rate increases significantly due to more bacterial habitat being introduced in the barn,” said a Maryland Farm Bureau official in his testimony at the hearing last year.

Consumers in Maryland are already free to shop for cage‐​free or non‐​battery eggs and pay a premium in pursuit of their values. This bill would commandeer the resources of others — consumers, farmers, restaurateurs, residents of other states — in support of values they would not have chosen to pursue.

(Adapted and expanded from a post at Free State Notes.)