Summary
- Industry groups appeal ruling that supported California law
- In question is Commerce Clause U.S. constitutional provision
The pork industry is facing several challenges due to a new law imposed in California. The U.S. Supreme Court is expected to hear arguments on Tuesday in an industry challenge to the constitutionality of a California animal welfare law in a case that could diminish the power of states to regulate an array of issues within their own borders.
The American Farm Bureau Federation and the National Pork Producers Council are appealing a lower court’s decision to squash their lawsuit trying to reverse a 2018 ballot initiative passed by voters barring sales in California of pork, eggs, and veal from animals whose confinement did not satisfy minimum space requirements.
In that context pork industry has upheld the size of the cages used at pig farms as humane and essential for animal safety. Animal rights groups have said some pork producers keep mother pigs in cages so small the animals cannot move around for most of their lives.
The industry groups have maintained that the measure, called Proposition 12, breaches a provision of the U.S. Constitution known as the Commerce Clause, which grants Congress the authority to regulate interstate commerce, by compelling out-of-state producers to comply or face a California sales ban. A legal doctrine called the “dormant” Commerce Clause prohibits states from making laws discriminating against commerce in other states.
Proposition 12 breaches that doctrine, the pork producers stated in a legal filing, because it would boost costs for pig farmers, almost all of whom are situated outside California. While being the most populous U.S. state and a significant market, California supplies just 0.1% of the nation’s pork.
Michael Formica, chief legal strategist for the pork producers, said:
“If you’re looking for an example of an unconstitutional law, this is it.”
Proponents of the law differ, saying California has the right to establish standards for products sold to its consumers despite where these are produced.
“There’s a long history of state laws that have to do with protecting public health, food safety, and animal welfare,” said Josh Balk, vice president of farm animal protection at the Humane Society of the United States, which organized the campaign to pass Proposition 12 and is a party in the case.
“Producers have a choice if they want to sell products within the state’s borders that meet that standard.”
The San Francisco-based 9th U.S. Circuit Court of Appeals defended a district court’s decision to squash the lawsuit, finding no Commerce Clause violation. President Joe Biden’s administration has supported the pork producers, saying in a Supreme Court brief that states cannot bar products “that pose no threat to public health or safety based on philosophical objections.”
‘Dramatic Expansion’ In The Pork Industry
A decree by the Supreme Court, which has a 6-3 conservative majority, favoring the pork industry would have critical implications for Commerce Clause interpretation, according to several legal experts.
The industry is “asking for a dramatic expansion of the doctrine in a way that would call into question all kinds of state laws,” lawyer Brian Frazelle of the Constitutional Accountability Center liberal advocacy group, which submitted a brief in the case as representatives of law professors, told reporters in a conference call.
Sixteen liberal U.S. senators, including both of California’s, had advised Biden’s administration to side with the law. They wrote that a ruling defending the industry’s Commerce Clause position “could allow large, multi-state corporations to evade numerous state laws that focus on harms to their constituents, including those addressing wildlife trafficking, climate change, renewable energy, stolen property trafficking, and labor abuses.”
A group of 20 primarily Republican-governed states chaired by Indiana said in a brief that endorsing Proposition 12 would diminish state sovereignty. A different group of 14 primarily Democratic-governed states and the District of Columbia, chaired by Illinois, said reversing it would diminish state authority to legislate.
Buy Crypto NowAny verdict favoring pork producers could spur more industry challenges to state regulations, according to Nandan Joshi, an attorney with the consumer advocacy group Public Citizen, which submitted a brief supporting California.
Pressured by consumer groups and animal welfare, many food and restaurant companies already have vowed to phase out small confinements for pigs and to produce or buy cage-free eggs.
Proposition 12, enacted with the support of close to 63% of California voters, set the needed space for rearing pigs, or sows, at 24 square feet (2.2 square meters). The current industry standard is between 14 and 20 square feet (1.3 to 1.9 square meters), based on last year’s report from Dutch banking and financial services company Rabobank.
The measure also increased the space needed to house egg-laying hens and calves bred for veal.
Largest U.S. pork producer Smithfield Foods, owned by Chinese company WH Group Ltd (0288.HK), said in 2021 it plans to adhere to the law. Kansas-based Seaboard Foods, the second-largest U.S. pork producer, said this year it was changing some of its production to ensure compliance.