Earlier this week, the National Pork Producers Council and the American Farm Bureau was set to tell the U.S. Court of Appeals for the Ninth Circuit why it should reverse the massive district court pounding it took over California’s Proposition 12.

What’s Prop 12 you ask? Prop 12 amended California’s Health and Safety Code in eye-opening ways. 

Prop 12 makes it illegal to confine a covered animal that “prevents the animal from lying down, standing up, folly extending the animal’s limbs, or turning around freely.’

Cages and pens will have minimum space requirements, in particular these are prohibited:

  • After December 31, 2019, confining a calf raised for veal with less than 43 square feet of usable floor space per calf.
  • After December 31, 2021, confining a breeding pig with less than 24 square feet of usable floor space per pig.
  • After December 31, 2019, confining an egg-laying hen with less than 144 square inches of usable floor space per hen,
  • After December 31, 2021, confining an egg-laying hen with less than the amount of usable floor space per hen required by the 2017 edition of the United Egg Producers’ Animal Husbandry Guidelines for U.S. Egg-Laying Flocks: Guidelines for Cage-Free Housing, or in an enclosure other than a cage-free housing system.

The icing on the cake was that California voters said not only must in-state farmers raise calves, pigs, and chickens in a humane way, but that out-of-state Big Meat and Egg producers must also meet Prop 12 standards in order to sell shelled and liquid eggs, uncooked pork from breeding pigs and veal from calves to California wholesales and retailers.  

Well. You can imagine the howling echoing off Big Meat corporate offices and it wasted no time filing a lawsuit.

The NPPC and Farm Bureau claimed Prop 12 violated their constitutional rights to sell their wares in California. Specifically that Prop 12 violated the extraterritorial principle of the U.S. Constitution’s Commerce Clause. In a nutshell, the plaintiffs claimed Prop 12 is illegally regulating out of state conduct as well as illegally imposing financial burdens on interstate commerce.

That sounds like a winning argument…right? U.S. District Judge Thomas J. Whelan wasn’t having any of it. Whelan rightly pointed out that Prop 12 targets both in-state farmers and out-of-state farmers equally and thus it’s wrong for the NPPC to conclude it wholly targets extraterritorial activity:

“Proposition 12 applies to both California entities and out-of-state entities.  Proposition 12 precludes the sale within California of products produced by hogs not raised in conformity with the requirements of Proposition 12, regardless of where the hogs are raised.  It therefore does not regulate wholly out-of-state conduct.  In state and out-of-state hog farmers are burdened in exactly the same way-all are effectively prevented from raising hogs in violation of Proposition 12 if they wish to sell their products to California…Although Proposition 12’s regulations may consequentially tough out of state farmers, the Commerce Clause…does not treat regulations that have upstream effects on how sellers who sell to California buyers produce their goods as being necessarily extraterritorial.”

Whelan concedes that Prop 12 could financially burden pork producers wishing to sell pork in California but “there is no burden on interstate commerce merely because it is less profitable than a preferred method of operation.”

Yikes.

Of course NPPC and the Farm Bureau appealed. But I think NPPC and the Farm Bureau (as well as 15 states and the U.S. Chamber of Commerce that filed amicus briefs in support of the challenge) will have an uphill slog in the appellate court. California’s response to whatever the NPPC has come up with is due at the court by September 24th.    

It would take a twisted reading of the  extraterritorial principle of the Commerce Clause for Big-Meat to win a reversal. It’s unlikely.

And less you think these humane laws are just a California fad think again. Fer sure ya would be wrong…like totally. Colorado Governor Jared Polis put his “John Henry” on HB20-1343 in July. HB20-1343 (who comes up with these titles anyway?) is better known as Egg-laying Hen Confinement Standards. By 2023 chickens will need a minimum of one square foot of usable floor space and by 2025 chickens will need to be in a statutorily-defined “cage-free housing system.” The law won’t apply to farms with fewer than 3-thousand egg laying hens.  But here’s the kicker: All eggs sold in in-state much be from compliant sources regardless of where produced. Out-of-state producers have just been put on notice.

And I suspect this sort of rule making is just picking up steam. Imagine a country of these sort of state regulations. Yeah….it would be chaos. Prop 12 – or something just like it – will need to go to the Supreme Court for clarity. The fight is just getting started.

About Dave Dickey

Dave Dickey

Dickey spent nearly 30 years at University of Illinois at Urbana-Champaign’s NPR member station WILL-AM 580 where he won a dozen Associated Press awards for his reporting. For 13 years, he directed Illinois Public Media’s agriculture programming. His weekly column for the Midwest Center covers agriculture and related issues including politics, government, environment and labor. His opinions are his own and do not reflect the Midwest Center for Investigative Reporting. Email him at dave.dickey@investigatemidwest.org.

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