Updated: 3:37 p.m. Jan. 10, 2019

Can one state dictate to other states how to produce an agriculture product? Are we about to engage in a new trade war – this time, a war between states?

At issue are animal welfare laws approved by voters in Massachusetts and California that vastly restrict in-state demand for products grown outside of those states from producers who don’t wish to conform to CA/MA laws.

It’s a question that should already be in front of the U.S. Supreme Court, but that august body decided not to hear the case when it came up in early January.

California’s Prop 2 law, passed in 2008, forbids a Californian from “tether[ing] or confin[ing] certain animals, including egg-laying hens, on a farm, for all or the majority of any day, in a manner that prevents such animal from: (a) Lying down, standing up, and fully extending his or her limbs; and (b) Turning around freely.” Massachusetts voters in 2016 passed a law that prohibits the state’s businesses from selling pork, shelled eggs, or veal from “any farm owner or operator … knowingly confining any breeding pig, calf raised for veal, or egg-laying hen in a way that prevents the animal from lying down, standing up, fully extending its limbs, or turning around freely.” This past November California voters added on with Proposition 12, which sets new cage size minimums for breeding pigs and calves sold in California. Starting in 2020 calves raised for veal must have 43 square feet of space and breeding sows will need 24 square feet of space. The Massachusetts law goes into play in 2022.

Voters in both states have forced their agricultural operations to invest millions or go out of business, regardless of higher costs for both producer and consumer. Even more important, if you farm somewhere else but wish to sell products to customers in those states, you can only do so by producing said products using the same restrictive production methods in play in those states. Not to be outdone, Massachusetts voters in 2016 passed a law that prohibits Massachusetts businesses from selling pork, shelled eggs, or veal from “any farm owner or operator … knowingly confining any breeding pig, calf raised for veal, or egg-laying hen in a way that prevents the animal from lying down, standing up, fully extending its limbs, or turning around freely.” Then this past November California voters approved Proposition 12, which sets new cage size minimums for breeding pigs and calves sold in California. Starting in 2020 calves raised for veal must have 43 square feet of space and breeding sows will need 24 square feet of space.

California, the most populous U.S. state with nearly 40 million people, buys a lot of stuff grown by farmers in other states. It produces about 5.5 billion eggs yearly, but Iowa is the top producer at 14.5 billion, and ships 2.15 billion eggs to California. All other states ship 7 billion eggs to California. As non CA/MA farmers decide not to invest in farm cage changes, those numbers will fall, and when that happens, egg prices will rice. According to Purdue University California’s animal welfare law caused a 22% hike in the price of a dozen eggs. That hurts low-income consumers.

According to MassLive, a media company out of Massachusetts, “the biggest impact will be the prohibition on sales, since Massachusetts has only a single farm that cages chickens and no farms that use small crates for confining pigs or calves.”

Is that legal?

Between 1776 and when the Constitution was adopted in 1789 the 13 states erected trade barrier laws to protect from competing firms in neighboring states. The result was a nationwide economic downturn.

So, in 1787 the Constitution’s framers created the Commerce Clause, granting Congress the power “to regulate commerce with foreign Nations, and among the several States, and with the Indian Tribes.” The CC forbids any law that “discriminates against out-of-state producers and imposes burdens that outweigh putative local benefits.” And that’s why attorneys general from Indiana and 12 other states tried to sue Massachusetts for breach of the Commerce Clause.

The Supreme Court non-decision creates a slippery slope moving forward.  What’s to stop activists from campaigning for a law that says all food ‘imported’ into the state must be made with, say, organic methods? Or without biotechnology? These days any well-organized activist campaign can pull the wool over coastal voters who know nothing about how food is produced.

Animal welfare is an important issue we should all get behind. But the federal government and the U.S. Supreme Court must put teeth back in the Commerce Clause.  “We cannot have states doing their own rules that hinder trade – that’s why we have the CC,” says ag lawyer Gary Baise, who writes on this topic and others at his Farm Futures blog, Defending Agriculture.

The opinions of the author are not necessarily those of Farm Futures or Farm Progress.