Pork Industry Fights to Revive Challenge of California Hog Standards

The pork industry claims California’s voter-approved requirement that pigs kept for meat enjoy 24 square feet of living space is unconstitutional.

This photo shows young hogs at Everette Murphrey Farm in Farmville, N.C. (AP Photo/Gerry Broome, File)

(CN) — Arguing California’s voter-approved farm animal law dictates meat industry production standards — and raises consumer costs — nationwide, pork industry groups asked a Ninth Circuit panel Wednesday to revive their case challenging the Prevention of Cruelty to Farm Animals Act.

The National Pork Producers Council and American Farm Bureau Federation appealed U.S. District Judge Thomas Whelan’s dismissal of their claims that Proposition 12 violates the Commerce Clause of the Constitution through its animal confinement standards for selling meat in California.

Under the law, pigs are required 24 square feet of space, also known as “stand-up-turn-around requirements.”

Whelan — a Bill Clinton appointee — found the law “does not regulate wholly out-of-state conduct” because both in-state and out-of-state pork producers must comply with the law to sell pork products to Californians.

The meat industry has fought the law in cases filed in the Central and Southern districts of California, arguing while the law may only apply to meat sold in California, Proposition 12 has impacted meat production standards across the country because of the way the industry operates.

That practical effect of the law ends up regulating extraterritorially, or inflicting unconstitutional burdens on interstate commerce, according to the meat industry.

The Ninth Circuit has already upheld Proposition 12 in a challenge brought by North American Meat Institute, whose members include Tyson Foods, Butterball and other major North American meat producers.

Mayer Brown attorney Timothy Bishop told a Ninth Circuit panel during a virtual hearing Wednesday nearly all — 99.8% — of pork sold in California is produced outside of the state.

He said Proposition 12 has created what he called “the one pig issue” where a pig can be raised only in “one” way but the various cuts of meat are sold to multiple states according to consumer demand.

Higher housing costs for sows raised in compliance with Proposition 12 translate to higher costs for meat, and “that’s going to distort prices throughout the national market,” Bishop said.

“People in other states who buy cuts of meat which cannot be sold in California are going to bear the costs of California compliance,” Bishop said.

He added: “There is no market outside California for meat that satisfies these requirements.”

When U.S. Circuit Judge Milan Smith Jr. — a George W. Bush appointee — asked Bishop “how do you know,” Bishop said the market would have responded to consumer demand “by now.”

Smith also questioned Bishop based on his interpretation the pork industry requires a uniform system of regulation.

Bishop disputed Smith’s contention farmers could decide whether pigs raised in compliance with Proposition 12 were sent only to California, so as not to pass the higher cost of raising California-compliant meat to other states.

“In this industry the packers slaughter and sell the pigs, not the farmers. So the farmer does not know six months down the line where the packer will sell the meat,” Bishop said.

Deputy State Attorney General Matthew Wise told the panel “there is a well-worn path of precedent” in California regarding similar consumer laws, including the state’s ban on the sale of foie gras, which was upheld by the Ninth Circuit, only to be struck down by a lower court after the Supreme Court declined to take up the case.

But U.S. Circuit Judge Sandra Ikuta — also a Bush appointee — questioned why the meat industry’s theory that California’s Proposition 12 has forced the entire industry to make changes is not correct.

“It’s, of course, common for a state law to have the practical effect of imposing additional costs on all producers, but that alone does not make a law regulate extraterritorially,” Wise said, adding, “States have always been permitted to exercise their sovereign power over sales within the state.”

U.S. District Judge John Steele, a Clinton appointee sitting by designation from the Middle District of Florida, rounded out the panel.

Riley, Safer, Holmes & Cancila attorney Bruce Wagman argued on behalf of The Humane Society of the United States and other animal welfare groups which intervened in the case.

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