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California’s pork standards to face high court scrutiny

The Supreme Court will decide if California voters can have humanely raised pork or if the new law causes too much chaos outside state lines. 

WASHINGTON (CN) — On the high court’s docket next week is a challenge to state laws that might stretch outside their own borders for some industries. 

Voters in California want higher animal welfare standards for pork consumed in the state, but California imports most of its pork, meaning parties outside of the Golden State have to comply with higher standards. 

On the justices’ docket Tuesday is National Pork Producers v. Ross. In 2018 California voters passed Proposition 12 aimed at preventing animal cruelty and protecting the health and safety of California consumers by regulating the treatment of pork meat sold in the state. The law says pork meat must come from pigs that were born to a sow housed in a 24-square-foot pen that allowed the animal to turn around without touching the enclosure. 

Pork producers claim the practical effects of Proposition 12 extend nationwide. Working in a production system that makes it impossible to know which pork meat will be sold in California, essentially all productions must be restructured to comply with the law. 

“Those requirements necessitate reducing herd sizes or building costly new facilities, and they will require changes in every aspect of caring for sows, including feeding, breeding, medical care, and farm labor,” Timothy Bishop, an attorney with Mayer Brown, wrote in a brief for the pork producers. “That will raise prices in transactions with no California connection.” 

National Pork Producers Council and the American Farm Bureau Federation sued California in 2019 on claims that Proposition 12 violated the Commerce Clause. Their suit was dismissed, the Ninth Circuit affirmed, and the pork producers turned to the high court.  

The pork producers claim California’s law violates the dormant Commerce Clause. Congress has the power to regulate interstate commerce through the Commerce Clause, but that power is not exclusive, meaning states can also pass laws that impact interstate commerce. Meanwhile the dormant Commerce Clause prevents states from imposing an excessive burden on interstate commerce, so states are limited in the laws they can pass.

The pork producers contend that Proposition 12 has far-reaching effects that run afoul of the dormant Commerce Clause. 

“Proposition 12 thus should be invalidated because it is inimical to the core constitutional principles that the dormant Commerce Clause has long been understood to protect,” Bishop wrote. “It prevents the orderly operation of an unobstructed nationwide pork market — a market that is unquestionably essential to the Nation’s food security. It upends the foundational principle of horizontal federalism that guarantees each state equal footing in the Union and its own sovereign dignity. And it threatens even greater harm, as other States enact competing and potentially retaliatory regulations, Balkanizing the national pork market.” 

California claims Proposition 12 is no different than laws that force producers to use certain labels or conform to safety or quality standards. The state says California voters were informed of the possible monetary consequences of the law and voted for it anyway. The state claims the courts are not the appropriate vehicle for this debate, and the solution should come from Congress if necessary. 

“Petitioners are of course free to take their policy concerns back to the California voters who approved Proposition 12 — and who will pay the increased costs resulting from that choice,” Samuel Harbourt, California deputy solicitor general, wrote in the state’s brief. “And if the United States shares those concerns, Congress may choose to exercise its own authority under the Commerce Clause to regulate interstate commerce in pork products and preempt laws like Proposition 12. This Court, however, ‘is not the forum to resolve that policy debate.’” 

It’s not clear that the entire pork industry agrees with the assessment of the producers in this suit. Perdue Premium Meat Company — the parent company of Perdue Farms — filed an amicus brief in favor of California, arguing that these standards are already being met. 

“Contrary to Petitioners’ apocalyptic predictions of the impact of Proposition 12, producers can and will adjust to the demands of the California market and raise hogs humanely without sacrificing their ability to earn profits,” Mitchell Mirviss, an attorney with Venable, wrote in Perdue’s brief. “Niman ranch’s farms have been meeting the Proposition 12 standards and producing humanely raised pork for years. Hormel announced two years ago that it will do so. Even without Proposition 12, the market has shifted to create strong demand for pork that is farmed humanely and without cruelty.” 

While the fate of California’s pork standards hangs in the balance, so does the ability of states to govern within their own borders.  

 “If the Supreme Court were to accept this reasoning that the pork producers are advocating, it would really call into question a whole host of state laws that protect a state's own residents from all kinds of harm,” Brian Frazelle, a senior appellate counsel at the Constitutional Accountability Center, said in a phone interview. “All kinds of health and safety laws would suddenly be vulnerable to second-guessing by the federal courts, in which the courts will be asked to scrutinize how valuable this law really is, or how well it actually serves its purposes.” 

A ruling in this case could impact state laws on any large industry operating across the country. Larger states could feel this impact disproportionately. If a smaller state like Wyoming were to pass a law similar to California’s, it probably wouldn’t have such a large impact. But that would mean California would be penalized for trying to protect its residents, whereas Wyoming would not. 

“If you would accept this argument, you would end up treating states unequally, where the larger states have less power to protect their own residents in a way that the smaller states would have the power to do,” Frazelle said. “That's really the big danger in the case from our perspective is that buying into this kind of reasoning would really transform the dormant Commerce Clause doctrine into a much broader tool for striking down state laws.” 

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