hill country observerThe independent newspaper of eastern New York, southwestern Vermont and the Berkshires


News & Issues August 2021


Rewriting the rules for egg farms

Mass. legislators move to change voter-backed law



Cartons of eggs fill a refrigerated display at Guido’s Fresh Marketplace in Pittsfield. Large-scale egg producers are pushing Massachusetts to revise its pending rules for humane treatment of laying hens, though the smaller-scale suppliers of Guido’s aren’t affected by the changes. Susan Sabino photo.


Contributing writer


Tom Binder, the dairy manager at Guido’s Fresh Marketplace, has been watching the flow of eggs from the store’s shelves for a little more than a decade.

The supermarket sells free-range eggs, cage-free eggs, and some conventional eggs from chickens raised under humane standards.

“We sell tons of eggs here,” Binder said. “It never ceases to amaze me how many we sell.”
But while Binder can rattle off the back story of seemingly every one of the farms that supply Guido’s with eggs, he said in late July that he hadn’t heard anything about an impending “Egg-mageddon” that lately has taken up the attention of state legislators.

Five years ago, Massachusetts voters overwhelmingly approved a ballot proposition to halt the sale of pork, veal and eggs from animals that have been subject to what the proposal deemed extreme confinement. For egg production, the voter-backed law requires that laying hens must each have a minimum of 1.5 square feet of floor space.

But with the new law finally set to take effect later this year, the state Senate recently voted to reduce the floor-space requirement for cage-free hens to match a 1-square-foot standard set by other states. The change is backed by large-scale egg producers as well as by some of the animal welfare organizations that supported the 2016 ballot initiative.

One out-of-state producer warned that if the standard isn’t changed, Massachusetts could face an “egg Armageddon” of high prices and shortages as suppliers bypass the state.

In the Berkshires, it seems Guido’s doesn’t do business with any of those producers, however. Binder said none of his suppliers have mentioned any concerns about a possible egg shortage, and the subject hasn’t been on his radar.

“I haven’t heard anything,” Binder said. “I haven’t heard anything at all about it.”


Slowed by legal fights
Even though the 2016 ballot proposition on farm practices won voter approval by a margin of better than 3-to-1, the plan for implementing it has remained somewhat murky ever since, with a lawsuit challenging its legality and accusations that state officials are slow-walking its enactment. Now, the effort to change the law has some questioning whether the supposed threat of an egg shortage warrants overturning the will of Massachusetts voters.

Voter approval of the law made Massachusetts the second state to curtail the sale of eggs produced from chickens confined to cages that severely restrict their movement. The first was California, which expanded a farm animal-cruelty law to cover egg-laying hens in 2010.
The summary language of the Massachusetts ballot question did not include the specific space requirements, but the full language of the proposal did spell out that egg-laying hens would need 1.5 square feet of floor space.

Shortly after the measure passed, a coalition of 15 states filed suit and asked the U.S. Supreme Court to intervene against the Massachusetts and California measures. The pair of lawsuits, spearheaded by attorneys general in states with large egg-producing industries, claimed the measures were an unconstitutional attempt by the two states to impose regulations on industries operating within other states. In 2019, the Supreme Court declined to hear the lawsuits, thus ending the legal challenge.

According to the language of the ballot measure, Massachusetts Attorney General Maura Healey was required to ready rules and regulations for its enforcement by January 1, 2020. Instead, in December 2020, the attorney general’s office asked the Legislature to delegate the rulemaking to the Massachusetts Department of Agricultural Resources. The Legislature, however, did not act on Healey’s request.

In January, the Humane Farming Association, a group that helped to launch the 2016 ballot measure, filed suit against the attorney general to compel her to prepare the new rules. Healey’s office released the rules in June.


Changing the details
State lawmakers took up several bills this year to amend the 2016 law, including an effort to change the requirements for space allocated for egg-laying hens. In June, the state Senate approved legislation rewriting the requirements to allow farms that house chickens in multi-tiered aviaries to provide 1 square foot of floor space per chicken. The bill also would require these regulations to cover eggs products, such as egg whites -- something the original ballot measure overlooked.

Although similar legislation was considered in the 2019-20 legislative session, this is the first time such a legislative fix has passed either chamber of the Legislature. The state House of Representatives now is considering a similar bill.

Since the 2016 referendum, more states and business have adopted humane standards for egg-laying hens. However, the space required in these standards has been set at 1 square foot.
That standard has been part of laws passed by legislators or voters in six states since 2017. That standard has also been agreed to by dozens of major food companies, including supermarkets like Kroger and Walmart and restaurant chains like Starbucks and McDonald’s, according to the Humane Society of the United States.

A difference of 0.5 square feet may not seem like much, but it can add huge costs for large-scale egg farmers like Hillandale Farms in Connecticut, said Bill Bell, general manager for the New England Brown Egg Council. The council, an advocacy organization for New England egg farmers, did not back the original ballot measure but now is pushing for this legislative change.
It was Hillandale’s president who warned in June of an impending “egg Armageddon.”

If the law voters approved in 2016 takes effect as is, then Hillandale, one of the largest egg suppliers in the nation, would not have enough legal housing for hens to supply the marketplace, Bell said.

And because the Massachusetts law’s requirements differ from those of surrounding states, its 1.5-square-foot standard could cause large-scale egg producers like Hillandale to bypass the state, he said.

“They are not really that interested in supplying Massachusetts if you have to have 50 percent more housing,” Bell said.

He said the true intent of the ballot measure is that farm animals must have the space needed to perform natural behaviors. Few voters delved deeply enough into the campaign literature to see that it specifically called for 1.5 square feet per hen, he said.

“Common sense assures one that the voters didn’t know what square footage they were voting for,” Bell said.


Fixing or weakening?
The Humane Society of the United States, which supported the 2016 ballot measure, now also supports the changes being proposed in the Legislature.

Josh Balk, the society’s vice president of farm animal protection, said there were several other shortcomings to the original ballot question, including that it did not require egg-product manufacturers to follow the same standards as whole egg farmers -- and that it did not require egg farmers to provide vertical roosting opportunities for chickens.

The legislation passed by the Senate would tackle both shortcomings, Balk said.
Most importantly, he argued, the legislation would provide a floor-space standard for egg farmers who adopt aviary systems that allow chickens vertical space to roost. The multi-tiered aviary system has been more popular in Europe than in the United States, but many New England farmers have begun to use the systems since 2016, he said.

Ultimately, Balk said, what’s now proposed would augment what the voter-approved law required for a chicken’s environment.

“What we’re trying to do in Massachusetts is to upgrade what we did in 2016 to mirror what we have done in other states to create even better conditions for the animals,” Balk said. “The legislation ... ensures that the birds have critical environmental enrichments, such as areas for them to perch, scratch, lay eggs in a nesting area, and dust-bathe.”

Some opponents of the original law also are backing the legislative fix, even though it will have no bearing on their day-to-day operations. The Country Hen in Hubbardston, the largest egg producer in the state, already allocates 1.5 square feet per chicken. The egg farm opposed the 2016 measure but now has said it backs the proposed legislation in a letter to legislators.

“While failure to amend the current 1.5 square feet/hen requirement might in the short run benefit The Country Hen, we do not wish to see Massachusetts citizens confronted by a severe shortage of eggs next January,” the letter stated.


Overturning the people’s will?
This would hardly be the first successful ballot measure that has been slow-walked or changed by legislators. Voters in the 2016 election also approved a measure allowing recreational use of marijuana, by a margin of 54 percent to 46 percent. Just over a month later, the Legislature intervened to delay the deadline for granting the first recreational dispensary license by six months. The next year, lawmakers changed several other provisions of the voter-initiated law, in particular by sharply increasing the tax rate for recreational marijuana sales.

Opponents of the proposed changes to the egg law say the Legislature shouldn’t be so quick to overrule the will of voters. That’s one of the reasons why the Massachusetts Farm Bureau Federation, which once opposed the 2016 ballot question, now is voicing opposition to the proposed changes, said Brad Mitchell, the federation’s deputy executive director.

Mitchell said the federation’s members disliked the 2016 ballot initiative, even though few of them would have been directly affected by it. In his opinion, the original ballot measure questioned the integrity of Massachusetts farmers in the public eye.

”We thought it was all rather silly and just politics, and quite frankly we thought we were a pawn in this whole thing,” Mitchell said.

Now that the measure has passed, however, Mitchell said it’s inappropriate to rewrite the provisions.

“This is in direct contrast to what the voters were sold and what they voted for, and we can’t support that,” he said.

Mitchell doesn’t believe consumers will be overly concerned that the law as it is currently written would drive up the retail price of eggs. His organization raised the price issue in 2016, but voters weren’t swayed by that argument.

“We talked about potential disruptions to the marketplace, and we were soundly discounted by the very people who are now advocating for this change,” Mitchell said. “It didn’t resonate with consumers then; I’m not sure it should be an issue now.”

Bradley Miller, the national director of the Humane Farming Association, also opposes the proposed changes to the law. The association has been on the frontlines of animal welfare debates since the 1980s, when it focused public attention on how veal is raised.

Miller said the proposed legislation is part of a long tradition of bait-and-switch tactics to codify inhumane conditions for farm animals while co-opting the language of humane farming practices. He said the aviary systems that would be accommodated by the change are not new, and many are already in use, so the proposed legislation adds little to help chickens.

The legislation will simply have the effect of taking away space from hens, he said.
“I really pity any animal advocate that feels like they only recently discovered that a hen likes to have a perch,” Miller said. “That’s not news. What is news is that these groups would sell out and join with the egg industry to enact a cruel standard.”

The legislation changing the egg production standards passed with strong support in the state Senate. As of late July, the House had yet to act on the proposal.

If the bill passes and is signed into law, however, that may not be the end of the debate. Miller said the Humane Farming Association is already in talks to organize a petition drive for another ballot measure that would reinstate the 1.5-square-foot requirement.