The Federal Government vs. Prop 12: Can the Egg Products Inspection Act Preempt Cage-Free Egg Laws?

In this episode of The Animal Law Podcast, Mariann Sullivan speaks with Rebecca Cary and Melissa Alpert, attorneys at Humane World for Animals, about the federal government’s unprecedented lawsuits challenging California’s Proposition 12 and Michigan’s cage-free egg law. The government argues that the Egg Products Inspection Act — a 1970 statute about inspecting liquid and dried egg products for adulteration — expressly preempts state-level farm animal welfare sales bans. The discussion covers the government’s novel and contested theory of sovereign standing, the surprising split between the California and Michigan courts, and why the egg industry has broken ranks with the pork industry to side with animal advocates in these cases.

• Prop 12’s legal history and the Supreme Court victory in NPPC v. Ross: a recap of California’s evolving farm animal welfare laws from Proposition 2 (2008) through Proposition 12 (2018), and the Supreme Court’s unanimous 2023 decision upholding the pork sales ban against dormant commerce clause challenges
• The federal government’s EPIA preemption argument explained: how the government relies on a single preemption clause about egg grading standards (size, quality, condition) to claim that cage-free hen housing requirements are preempted, despite the Egg Products Inspection Act having nothing to do with on-farm animal welfare
• Constitutional standing and the sovereign injury theory: why the government’s standing allegations are remarkably thin, how the California court found standing but certified the question for interlocutory appeal to the Ninth Circuit, and why the Michigan court dismissed the case entirely for lack of injury
• The egg industry’s shift from opposition to alliance: how the egg industry, after losing early challenges to Prop 2 and California’s AB 1437, pivoted to embrace cage-free production as a market opportunity and is now intervening alongside animal advocates against the federal government’s lawsuits
• The Save Our Bacon Act and broader threats to state animal welfare laws: the latest version of the decades-old King Amendment effort to federally preempt state agricultural sales bans, its inclusion in the House farm bill, and what it means for the future of farm animal protection legislation

ABOUT OUR GUESTS

Rebecca Cary is a managing attorney within the Animal Protection Law section of Humane World for Animals, where she has worked since 2010. Her practice includes farm animal welfare and constitutional defense issues, and she has been the lead attorney on multiple challenges to state farm animal confinement and sales initiatives, including the NPPC v. Ross case in which the Supreme Court upheld California’s Proposition 12 against a pork industry challenge. Rebecca is a 2009 graduate of Northeastern University School of Law and a 2005 graduate of the University of California San Diego, where she was a founder of a student animal welfare group. She has taught animal law courses at George Mason University and George Washington University, and she is the co-chair of the District of Columbia Bar’s animal law section. Rebecca lives in Maryland with her two rescue cats.

Melissa Alpert is a Staff Attorney within the Animal Protection Law section of Humane World for Animals, focused on farm animal issues. She is a graduate of Harvard College and Harvard Law School, and joined Humane World for Animals in 2024 after working at large law firms in Washington, DC, and Pittsburgh, PA. At Humane World for Animals, she has been active in litigation related to farm animal confinement laws, including the defense of California’s Proposition 12.

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