(CN) — Farmers who sell their products in California say the state’s requirements that they upgrade their facilities to be more humane discriminates against out-of-state producers.
On Friday, a lawyer representing the agriculture trade group North American Meat Institute told a Ninth Circuit panel its request for an injunction of the law should be revived because it violates the Commerce Clause of the U.S. Constitution.
The trade group boasts a large membership of meat packing and processor groups, including Tyson Foods, Butterball and many other businesses who supply most of the nation’s meat.
But they’re fighting against the Prevention of Cruelty to Farm Animals Act — approved by voters in 2018 — which set new minimum standards for the treatment of egg-laying hens, breeding pigs and calves raised for veal. The measure passed with 62% voter approval.
Under the law, eggs and meat from producers that have not met the state’s standards cannot be sold in California — and the law applies to out-of-state producers as well.
To abide by California’s confinement standards, farmers must provide 43 square feet of floor space for calves, 24 square feet for pigs and more than a foot for hens.
In its complaint, filed in Los Angeles federal court, the trade group said the ban on meat that was not in compliance with California’s new standards violates the Commerce Clause by essentially erecting a “trade barrier.”
U.S. District Judge Christina Snyder denied the groups request to block the law in November 2019, finding trade barriers are not imposed because the law does not force out-of-state farmers to move to California and set up their businesses there.
On Friday during virtual oral arguments, the trade group’s attorney Paul Zidlicky of Sidley Austin said California’s law will devastate the veal and pork industry and hurt thousands of farmers across the country.
“We think that it’s discriminatory because it takes away an advantage,” Zidlicky said, arguing out-of-state farmers should not have to improve confinement conditions of their animals just to export their products to California.
Sitting with the Ninth Circuit panel by designation from the Southern District of California, U.S. District Judge Cathy Ann Bencivengo, an Obama appointee, said California voters wanted to ensure the meat they eat has not been raised in a cruel manner. She asked by the trade group argues that’s not a legitimate reason.
“You’re saying it’s not because you don’t want to do it,” said Bencivengo, noting the Supreme Court has ruled animal cruelty is a legitimate concern for people to be concerned. She asked how the lower court abused its discretion by denying an injunction.
Zidlicky said California can dictate animal welfare in the Golden State but not outside its borders. He then raised a hypothetical: Can California ban imports made by workers that do not receive the state’s minimum wage?
U.S. Circuit Judge Sandra Segal Ikuta, a George W. Bush appointee, asked California Deputy Attorney General Matthew Wise about that hypothetical and whether that was constitutional.
Wise said only under narrow circumstances would it apply.
Ikuta asked the same question to Riley Safer attorney Bruce Wagman, arguing for intervenor the Humane Society of the United States. Wagman said it would depend on California’s motivation for asking businesses to meet a minimum wage standard.
He said the current case involves health and safety, which have always been under the authority of a state and do not touch at all on the economics of other states.
U.S. Circuit Judge Consuelo Callahan, a George W. Bush appointee, asked Wise why California should be allowed to set the standard for everyone.
Citing the Supreme Court ruling Exxon Corp. v. Governor of Maryland, Wise said in a federal system each state can regulate its sovereign power and that while some burdens of a state’s laws may fall on out-of-state parties, it does not in itself amount to discrimination.
But Zidlicky said there’s no way around California’s law for out-of-state farmers. He cited the case C&A Carbone, Inc. v. Town of Clarkstown, which says a state cannot attach restrictions to exports or imports in order to control commerce in other states.
The panel did not indicate when it will issue its ruling.