A contentious case about the state of livestock confinement is headed to the U.S. Supreme Court Tuesday, with the potential to upend the way meat and egg producers conduct sales of their products between states.
The Supreme Court will hear oral arguments in a challenge to California’s Proposition 12, an animal welfare law, from the National Pork Producers Council (NPPC). The suit was filed against Karen Ross, secretary of the California Department of Food and Agriculture.
The case dates back to 2018, when California voters approved the Farm Animal Confinement Initiative, which defines how much space livestock should have in captivity. Specifically, breeding pigs each require 24 square feet of movement and minimum floor space; veal calves require 43 square feet and egg-laying hens require 144 square inches, respectively. The law also prohibits business owners from knowingly selling meat deriving from animals housed in a confined space. It passed in the state with 62% of the vote, and the law took effect in January of this year.
Meat industry leaders have uniformly opposed Prop 12, arguing it will threaten the livelihoods of farmers nationwide. NPPC and American Farm Bureau Federation (AFBF) jointly filed a brief with the Court that challenged the law’s constitutionality, warning that it would impose regulations on commerce outside of its state of origin.
“California is attempting to set the rules for the entire country,” AFBF president Zippy Duvall said in a statement. “This law has the potential to devastate small family farms across the nation through unnecessary and expensive renovations, and every family will ultimately pay for the law through higher food prices.”
Political pressure heats up
Democratic lawmakers, many of whom have supported animal rights causes in recent years, are divided on the law.
The Biden administration, which has heavily targeted industry concentration in the meat space, surprised some by supporting the challenge to Prop 12. Solicitor General Elizabeth Prelogar filed an amicus brief in June, arguing that Prop 12 “unduly restricts interstate commerce in violation of the Commerce Clause of the Federal Constitution.”
Democratic Sen. Cory Booker of New Jersey, said in a statement the administration had aligned themselves with “corporate meatpackers and their cruel factory farm system that is dangerous for workers, consumers, animals and the environment.”
The NPPC said in its brief that 99.87% of pork production in the U.S. occurs outside of California, which would mean policy on the sale of pork products in the state largely affects out-of-state producers. Part of the NPPC’s argument also involves the logistics of pork production, stating that the law does not abide by common practices used to produce pork.
“Hardly any commercially bred sows are housed with that much space, including those raised in group pens; and farmers almost universally keep sows in individual pens that do not comply with Proposition 12 during the vulnerable period between a sow’s weaning a litter of piglets and confirmation of her next pregnancy,” the group argued.
The NPPC explicitly called for the Supreme Court to overturn the California law, stating that if it were upheld, it would encourage other states to pass similar laws targeting out-of-state pork production and create a “regulatory patchwork that would throttle the nationwide pork market.”
Prominent Democrats in the U.S. Senate — including Dianne Feinstein and Alex Padilla of California as well as 14 Senators outside the state — signed a letter in June asking the DOJ to support Prop 12. The lawmakers argued it would not only prevent animal cruelty but also protect consumer health and safety by decreasing the risk of foodborne illness.
Animal welfare activists have also championed Prop 12 as a win for their cause after years of pushing for implementation of cage-free conditions for livestock. In a statement released last fall before Prop 12 took effect the Humane Society said in a statement it would continue to fight mounting challenges to the California law, which it called the strongest law for farm animals rights.
“Defending this historic law so that it can make real changes for animals who are suffering is just as meaningful and urgent as getting it passed in the first place,” the Humane Society said.
But California is not the only state to implement pork welfare laws opposed by the meat industry. Nine other states have banned or restricted the use of confined “gestation crates,” according to animal advocacy group Pig Progress, including Arizona, Colorado, Florida, Maine, Massachusetts, Michigan, Ohio, Oregon and Rhode Island.
Yet the amount of U.S. pork producers in compliance with the standards set in Prop 12 remains slim. Only 4% of U.S. pork sow housing can currently meet the standard set in Proposition 12, according to a March 2021 Rabobank report, which the agribusiness group said will result in a pork deficit and high prices in California, but a surplus for the rest of the nation.
If the Supreme Court allows the California law to stay in place, it's possible these costs could carry over throughout the states, as pork producers aim to recoup the lost profit of selling in the most populated state. In its initial petition with the Court, the NPPC argued compliance with Prop 12 would raise production costs by $13 a pig, a 9.2% increase at the farm level.
Leading pork producers have strongly opposed the law. In a letter to the SEC in 2020, Tyson Foods said California “cannot use the in-state sale of a product as a jurisdictional ‘hook’ to regulate upstream commercial practices that occur in other States simply because California finds those practices objectionable.” However, Tyson, JBS’s Smithfield and Hormel have each indicated they will comply with the law in their pork supply chains, according to Progressive Farmer.