Supreme Court upholds California sow housing law

The U.S. Supreme Court this May upheld a controversial California law banning sales of pork products from producers who do not comply with livestock housing requirements set by California voters in a 2018 ballot initiative.

The U.S. Supreme court, in a 5-4 decision, upheld the California ballot initiative Proposition 12 as constitutional, and that the state could establish its own rules on meat sold in the state, even if that means that products produced outside of the state must comply with the law. Full implementation begins at the beginning of next year.
Proposition 12

At the heart of the court's ruling is Proposition 12 (Prop 12), which prohibits sales in California of pork products from pigs not provided at least 24 square feet of floor space during birthing and weaning. No other state mandates breeding sows receive 24 square feet of floor space.

Additionally, Prop 12 sets housing requirements for veal calves and egg-laying hens raised and sold in California. The relevant regulations were finalized September 1, 2022.

Dr. Liz Cox, Animal Care program manager at the California Department of Food and Agriculture (CDFA) and director of its Animal Health and Food Safety Services Division, along with Dr. Annette Jones, California state veterinarian, reviewed Prop 12 animal confinement regulations and requirements for pork producers in a June 27 webinar.

"Ultimately, by January 1, 2024, all pork that's being sold in California needs to be from a compliant source," Dr. Jones said. "Proposition 12 has not been postponed until 2024, but the implementation is continuing. Now there is also a legal finding that is consistent with what we've been saying. We're continuing to gear up toward full implementation in 2024 as existing inventory moves through the system in 2023."

On May 11, the court voted 5-4 to uphold Prop 12 as constitutional, and that the state could establish its own rules on meat sold in the state, even if that means that products produced outside of the state must comply with the law.

Justice Neil Gorsuch wrote on behalf of the majority, "While the Constitution addresses many weighty issues, the type of pork chops California merchants may sell is not on that list." Pork producers must petition Congress for relief from state laws they don't like, he added.

On June 15, U.S. Senator Roger Marshall of Kansas and others reintroduced the Ending Agriculture Trade Suppression Act (EATS Act), which aims to prevent states from enacting laws that impact agricultural production in other states. U.S. Representative Asley Hinson of Iowa is sponsoring identical legislation in the House of Representatives.

Critics of the law argued Prop 12 was illegal because it runs afoul of the Commerce Clause of the U.S. Constitution. The clause in part grants Congress power to regulate commerce among the states and restricts states from impairing interstate business.

Almost immediately after the ballot initiative passed five years ago, several lawsuits were filed to overturn Prop 12, including the one heard by the Supreme Court. That suit was brought by the National Pork Producers Council (NPPC) and the American Farm Bureau Federation (AFBF) against Karen Ross, in her capacity as secretary of the CDFA.

When the 9th Circuit Court of Appeals rejected their appeal in July 2021, the NPPC and AFBA petitioned the Supreme Court. The appellate court had "brushed aside" several Supreme Court decisions concerning the commerce clause, the plaintiffs claimed.

The Supreme Court heard oral arguments for National Pork Producers Council v. Ross in October 2022.

In an amicus curiae in support of Ross, the American Society for the Prevention of Cruelty to Animals stated that producers only need comply with Proposition 12 if they continue selling their products in the state of California, which is "a business decision. Producers will remain free to sell their products in all other U.S. states and territories, regardless of Proposition 12 compliance."

Moreover, "California's interest in ensuring products sold within the state meet a desired animal welfare threshold has a clear in-state impact and is not intended to manipulate out-of-state behaviors."

The National Federation of Independent Businesses, (NFIB) a nonprofit organization of small businesses, filed an amicus brief on behalf of the plaintiffs. The court's decision puts small businesses at the mercy of out-of-state agencies, and subjects them to potentially burdensome and expensive requirements, said Beth Milito, executive director of NFIB's Small Business Legal Center, in a statement.

"Proposition 12 will have a staggering impact on pork farmers, consumers, and interstate commerce as a whole. (This) decision sets a dangerous precedent, and small businesses will bear the consequences," Milito said.

The NPPC and AFBF did not respond to requests for comment.