Judge axes Arizona's cage-free egg rule

And it's all because a Tucson restaurant owner claimed that it would cost him more.

In a new decision released Monday, Maricopa County Superior Court Judge Scott Blaney rejected arguments by the state Department of Agriculture that it has broad authority to regulate all matters of "poultry husbandry.'' And that, said attorneys for the agency, includes the power to determine by rule that the long-standing practice of putting laying hens in cages — as small as 67 square inches — was no longer acceptable.

Only problem with that, said Blaney, is that Arizona law says state agencies can enact only those rules "specifically authorized'' by statute.

But he said that the broad power to regulate poultry husbandry is not a license for the Department of Agriculture to unilaterally decide that includes the mandate to get rid of cages. And the judge chided the agency for making such a claim.

"The operative language of (the law) is so broad and vague that it could be used to authorize nearly any rule promulgated by defendant that purports to governing the raising of chickens and/or the production of eggs,'' Blaney wrote. "Nothing in the broad language of the statute suggests that the Legislature intended to specifically authorized defendant to institute an entirely new ban on the sale of all eggs that were not produced in a 'cage-free' environment.''

Nor is this an academic exercise. The judge said that, everything else being equal, there is evidence that requiring egg producers to go to a cage-free environment would increase costs for consumers.

The Department of Agriculture did not contest that finding.

In fact, when it crafted the rules, it estimated that the change could increase wholesale prices by up to 39 cents a dozen, or about 3.25 cents per egg. But the agency said that, based on annual per capita consumption of slightly more than 270 eggs a year, that would mean an annual cost of less than $8.80.

But Grant Krueger, owner of the Union Hospitality Group, said that for him the issue is more than a few dollars. He operates three restaurants: Union Public House, Reforma Modern Mexican Mezcal + Tequila and Proof Artisanal Pizza and Pasta.

The Goldwater Institute, which filed the 2023 lawsuit on his behalf, said Krueger purchased 578 cases of eggs in a recent-12-month period, or 104,040 eggs.

That translates to $3,380 in increased costs. And that, Blaney concluded, was enough to give Krueger standing to challenge the rule.

A spokesman for the Attorney General's Office, which represents the agency, said his office is reviewing the decision.

One thing Blaney does not address in the new decision is what led to the new rules in the first place: whether laying hens care about their housing.

In 2021, a group known as World Animal Protection was promoting a ballot initiative to require cage-free systems by May 2023. Its proposal also would have made violations a crime.

That alarmed the owners of Hickman's Family Farms, the state's largest egg producer, and, at the time, family-owned. So they agreed to back legislation that would impose the same mandate — but not until 2025.

But that caused an outcry from the Arizona Farm Bureau Federation during a legislative debate that often came down to the question of whether laying hens care about being confined to cages.

"We're locking producers into this premium product and doing so unnecessarily,'' testified Chelsea McGuire of the Arizona Farm Bureau. And she said it's all being done "without a public health or safety justification or a scientific justification.''

And she sniffed at the contention of some animal rights groups that it's cruel to keep the laying hens in tiny pens.

"Stress indicators on hens, things like that, are really no different between conventional confinement cages and cage-free production systems,'' she said.

But that wasn't how Sen. John Kavanagh, R-Fountain Hills, saw it.

"Confining chickens to less than one square foot, I think, is really cruel,'' said Kavanagh, at the time a state representative.

"Granted, they don't have very high levels of sentient awareness,'' he continued. "But they feel pain, and they're prevented from engaging in natural and instinctive behavior, even to the point of spreading their wings or being able to sit down when they lay their eggs.''

After the bill failed, the Department of Agriculture picked up the issue in 2022, reaching the conclusion that it actually was helping the industry. Agency officials said that, absent state action, voters would approve the harsher initiative.

It proposed a two-step approach, first by more than doubling cage size to 144 inches, and eventually, going to cage-free. That allows hens to run without constraints inside a barn or other enclosure, though it is not the same thing as free-range, meaning hens actually can go outside.

The agency concluded that, specific legislation or not, it already had the authority to approve its own rules, which is what it did.

And that, Blaney concluded, was illegal.

Goldwater Institute attorney Timothy Sandefur said that, with the entire rule voided, it allows farmers to continue to use those 67-square-inch cages unless or until the law is changed, either by the Legislature or some future ballot proposal.

That latter option remains a possibility according to Briana Romero, state director of Humane World for Animals, which has pushed for a new law, who said in a statement she was disappointed by the new court ruling.

"The overwhelming majority of Arizonans want to ban cruelty produced and potentially unsafe eggs in the state,'' she said. "Humane World will continue to explore pathways to enact cage-free requirements in Arizona and beyond until there isn't a single bird left suffering in a filthy, feces-encrusted wire cage.''

As it turns out, there was little danger — at least immediately — that Arizonans would be facing higher costs.

In March 2025, Gov. Katie Hobbs ordered the Department of Agriculture to delay its rules mandating cage-free eggs until at least 2034. That came amid concerns that the avian flu had decimated chicken populations and sent egg prices soaring by 38% nationally.