The impact of California’s Proposition 12 animal welfare law was hotly debated Tuesday as the U.S. Supreme Court heard claims from lawyers representing the $26 billion pork industry that it will cause harm to interstate commerce and pork producers.
In oral arguments that ran over two hours, Timothy Bishop, a lawyer representing the National Pork Producers Council (NPPC) and the American Farm Bureau Federation (AFBF) said the California law overstepped its bounds by placing regulations on other states over how they raise their animals.
California, the country’s most populous state, imports more than 99% of the pork it sells. The regulation approved by voters in 2018 banned the sale of pork in the state from breeding pigs — as well as veal from calves and eggs from hens — if the animals were confined in areas that failed to meet specific minimum space requirements.
“No other state makes its farmers house pigs the way that California does, and very few farmers do,” Bishop said.
Justice Neil Gorsuch questioned whether the claims from NPPC and AFBF would be better served by Congress regulating how state laws apply to interstate commerce. He asked Bishop how his argument that harm will be done to competition or pork sales between states when several large meat companies have agreed to comply with Proposition 12 standards.
“We have other pork producers who say they’re perfectly happy to step into the void that your firms don’t wish to fill,” Gorsuch said. “We also have one of your own members attesting that prices will not increase to consumers outside of California because they won’t bear it.”
Deputy Solicitor General Edwin Kneedler with the Justice Department, arguing on behalf of the agricultural groups, said the law could have far-reaching consequences outside of pork production by allowing state laws to dictate nationwide commerce.
“Proposition 12 imposes a trade barrier based on conduct beyond California's borders. It fails to respect the autonomy of California's sister states,” Kneedler said.
Justice Amy Coney Barrett asked Kneedler how it is different from a New York state law requiring out-of-state firewood to be treated with a pesticide. Kneedler said raising pigs in crates does not create a “legitimate state interest” in preventing harm to citizens the way that allowing untreated firewood to be sold does.
The impact on smaller farmers and consumers
Representing California at the oral arguments was Michael Mongan, the state’s solicitor general. He argued Proposition 12 was democratically chosen by 63% of Californians in a vote, and that it protects both animals and humans from harmful diseases caused by raising pork in crates.
The two sides had differing views on how Proposition 12 will affect small farmers. Justice Samuel Alito asked Mongan whether small pork producers would bear the brunt of the financial impact as the NPPC and AFBF alleged. Mongan said that’s the opposite of what is occurring, and that farmers wishing to comply with Proposition 12 standards are actually benefiting from it.
“Smaller pork producers can choose whether to get a substantial premium for producing this type of specialty product [crate-free pork] or continue producing for the 49 other states, exactly as many of their own members, as the complaint acknowledges, have decided to do,” Mongan said.
Josh Balk, vice president of animal protection at the Humane Soceity, told Food Dive after the oral arguments that the pork industry failed to prove its case. He argued Californians should not be forced to buy pork raised in crates as it can cause foodborne illness, citing claims by scientific analysts.
“When it comes to public health and food safety, states have always had the ability to ban certain products, and this case is no different,” said Balk. “The sale of pork from operations that confine a mother pig in a crate so small she’s unable to turn around is unsafe and it leads to public health threats.”
The agricultural groups, however, refuted the argument that Proposition 12 is about health and safety.
Jonathan Urick, associate chief counsel at the U.S. Chamber of Commerce Litigation Center and one of the lead attorneys on the case, told Food Dive it boils down to a large state trying to impose its economic weight and policies on the other 49.
“If the Supreme Court were to uphold this law, the result would be harmful interstate trade wars as other states attempt to mimic California’s regulatory strategy,” Urick said. “The results will be economically disastrous, creating a hodgepodge of conflicting state regulations and fractured U.S. markets that are precisely what the founding fathers were trying to prevent.”