UPDATE: March 28, 2022: The Supreme Court has agreed to hear a constitutional challenge to California's Proposition 12 decision on behalf of the National Pork Producers Council and the American Farm Bureau Federation.
While some pork producers, including Hormel Foods, said they would comply with the anti-confinement law, the agricultural groups who filed the challenge argue it disrupts the interstate pork market.
In their petition to the high court, producers said the costs of complying with California's Proposition 12 falls "almost exclusively on out-of-state farmers." They noted that while California accounts for 13% of the nation’s pork consumption, they "raise hardly any pigs."
The Supreme Court will hear the case in its term that begins in October.
UPDATE: July 29, 2021: The 9th U.S. Circuit Court of Appeals upheld a lower court's decision in favor of the California law. In its ruling, the appeals court wrote the new minimum requirements for confinement cannot prove to be an undue burden on interstate commerce. The National Pork Producers Council told Farm Journal's Pork Business that the group is weighing its options. Legal analysts told the business publication that while the case may be petitioned to the U.S. Supreme Court, it is unlikely to be taken up. Last month, the U.S. Supreme Court opted not to hear a similar case on the California law filed by the North American Meat Institute.
- The National Pork Producers Council (NPCC) and the American Farm Bureau Federation (AFBF) filed a lawsuit asking federal courts to declare Proposition 12 invalid. The trade groups argue the law, which sets new minimum requirements for farm animal confinement, is unconstitutional because it burdens interstate commerce.
- California voters passed Proposition 12 in November 2018. The ballot initiative requires all eggs sold in the state to be sourced from cage-free hens and bans the sale of pork and veal if animal housing does not meet new minimum size requirements. The law applies to all farmers who sell eggs, veal and pork into California markets. It goes into effect in 2022.
- California represents 15% of the U.S. pork market and the trade groups believe compliance with the new regulations would come at a significant cost to farmers. “Proposition 12 revolves around a set of arbitrary standards that lack any scientific, technical or agricultural basis, and will only serve to inflict further harm on U.S. hog farmers,” NPCC Vice President Jen Sorenson said in a press release.
Proposition 12, also known as the Prevention of Cruelty to Farm Animals Act, passed with almost 63% of the vote.
The new law strengthens standards for animal housing. According to an analysis of the new law from the California Legislative Analyst's Office, egg-laying hens, breeding pigs and veal calves now must be housed in cages or crates that provide adequate space for the animals to stand up, turn around, lie down and extend their limbs. Starting in 2020, laying hens must be given at least one square foot of floor space and veal calves are required to have 43 square feet of floor space. In 2022, laying hens must be transitioned to cage-free housing and breeding pigs must have at least 24 square feet of floor space. California will ban the sale of products that fail to meet these standards.
In this lawsuit, NPCC and AFBF argue meeting the minimum requirements would come at a significant cost to farmers and increase costs to consumers. One analysis suggests it might take years for farmers to achieve compliance — and some may discontinue production altogether — which could create a shortage of eggs, pork and veal.
The pork producers and Farm Bureau aren't the only ones challenging California's new confinement law. The North American Meat Institute also filed a lawsuit challenging Proposition 12, arguing that farmers should be able to make decisions about animal care. The case has been joined by several animal rights groups defending the law, while nine states jointly filed a brief supporting the meat group's lawsuit, saying California's law usurps their ability to set their own state policies. The lawsuit is pending.
It’s not the first time the state has passed legislation on animal housing standards. Proposition 2, which enforced similar requirements on California farmers, was approved by voters in 2008. Its constitutionality was also challenged in court by farmers who argued the requirements were arbitrary, but the law was upheld by federal courts.
Animal confinement and welfare is becoming a popular issue for state legislatures and for voters through ballot initiatives as consumers become more concerned with the treatment of animals used for food. According to the ASPCA, 12 states have laws on the books banning different methods of confinement.
Some of these bans have been challenged as well, but have not been successful. Massachusetts passed a law in 2016 banning the sale of pork, veal and eggs from animals that are confined, regardless of where those animals are raised. Thirteen states attempted to sue Massachusetts and California in the U.S. Supreme Court, which has jurisdiction over cases involving individual states, but can also deny the cases the opportunity to go forward. In the complaint, the states argued these laws violate the Constitution's Commerce Clause by imposing regulations across state borders. The court issued a decision in January saying the complaint could not be filed. No written explanation was included.
Legal challenges aside, consumer pressure might force farmers to change their housing systems. A growing number of shoppers want assurances that their eggs, pork and veal are produced according to stricter animal welfare standards. Better living conditions for farm animals was a concern for more than 80% of respondents in a 2015 survey conducted by Consumer Reports — outranking GMOs and antibiotic use. ASPCA research from 2016 showed two-thirds of consumers would pay more for animal welfare-certified products.
Some producers are already moving forward with reforms in keeping with these state laws. Perdue Farms has already committed to overhauling its animal welfare practices, eliminating the use of farrowing crates for sows and raising chickens in cage-free environments. The poultry giant told The New York Times in 2016 it planned to install windows in its barns, offer perches to allow chickens to express natural behaviors, increase the amount of space for chickens and put chickens to sleep before slaughter.
Although NPCC and AFBF are committed to fighting against Proposition 12, previous failed lawsuits point to the likelihood that the legal maneuvering might not work. It may be better for farmers who want to sell their eggs, pork and veal in California to work on upgrading their housing to meet the minimum requirements before the regulations take effect in 2022. Even if the state's law is overturned, the investment may pay off among concerned consumers.