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Big Meat historically has mostly gotten its way when it comes to court relief on weighty issues. But thus far, California's Proposition 12 ain't one of them. Prop 12, failing some sort of last-ditch Big Meat Hail Mary, goes into effect on January 1, 2022.

Nearly 63 percent of California voters – some seven and a half million – passed Prop 12 in 2018. 

Under Prop 12, all pork sold in California must be raised per the Golden State's housing requirements for breeding pigs. The law requires giving each and every California sow 24 square feet of living space. By comparison, the industry average is roughly 16 to 18 square feet.

Proposition 12 treats all pork producers wishing to sell in California the same, no matter where they live. If you have a pig farm somewhere near San Jose, California, it's 24 square feet a sow. But the same is true if you've got pigs in hog-heaven Iowa and wish to sell in California...24 square feet a sow.

For their part, pork producers by and large haven't upgraded facilities to accommodate the California law.  

Instead the major trade groups – the National Pork Producers Council and the North American Meat Institute – have spent the past three years in separate but for all practical purposes identical lawsuits, arguing that Proposition 12 is a violation of the federal Commerce Clause regulating interstate trade.

The NAMI lawsuit claimed:

“Proposition 12’s sales ban violates the Commerce Clause by erecting a protectionist trade barrier whose purpose and effect are to shield California producers from out-of-state competition...Second, Proposition 12’s sales ban violates the Commerce Clause and the federal structure of the United States Constitution by directly regulating interstate and foreign commerce and extraterritorial conduct, including the confinement conditions of animals located on farms outside of California. California lacks authority to regulate farming practices outside California, and it cannot condition access to its market as a means to control how farm animals are confined in other States and countries.”

But federal District Judge Christina Snyder laughed the NAMI out of court, denying a preliminary injunction.  Snyder ruled Prop 12 created no barrier in selling across state lines because it simply directs how meat is produced and does not require out-of-state ranchers and packers to move to California. In short, there was NO violation of the Commerce Clause.

The NAMI got the same result before a three-judge panel at the United States Court of Appeals for the Ninth Circuit. 

The three-judge panel ruled that Snyder was correct in applying Association des Eleveurs deCanards et d’Oies du Quebec v. Harris, 729 F.3d 937 (9th Cir. 2013) because that case also treated in-state and out-of-state meat producers equally.

Not to be detoured, the NAMI sought relief from the U.S. Supreme Court, which declined to review the case, giving tacit approval to the idea that Proposition 12 does not violate the Commerce Clause.

Nor has the National Pork Producer's Council found a sympathetic court ear seeking either a preliminary injunction stopping Prop 12 from taking effect or a ruling declaring it illegal.

In NPPC v. Ross, the Big Meat trade group alleged – just like the NAMI – that Prop 12 illegally regulated out-of-state trade by requiring non-California pork producers to change their operations to meet California standards It took about a New York minute for the federal district court to dismiss.

On appeal at the Ninth Circuit, the NPPC added a few additional creative arguments: 1) that Prop 12 is unconstitutional because it has the impermissible extraterritorial effect of regulating prices in other states and 2) Prop 12 violated the Commerce Clause because it had an impermissible direct effect – increased space requirements – on how pork is produced and sold beyond California's border.  

Well....the Ninth Circuit made short work of all that gobbledy-gook. In the former, the court ruled that Supreme Court precedent on the extraterritorial principle did not apply because Prop 12 did not specifically dictate the price of pork. And in the latter, the Ninth Circuit ruled Prop 12 was not impermissibly extraterritorial because the law applied equally to in-state and out-of-state producers.

Shut out by California courts, Big Meat took their arguments to what they hoped to be more friendly territory. And what's not more friendly than hog-heaven Iowa, where nearly a third of all U.S. pigs are raised annually?

But any hopes for a positive ruling on the home-front came crashing down on the NPPC in August. U.S. District Court for the Northern District Judge C. J. Williams ruled an Iowa federal court wasn't the place to try to get Proposition 12 overturned. 

Williams reasoned Prop 12 was “not uniquely or expressly aimed at Iowa” nor did California voters have knowledge of “the brunt of harm that might potentially be felt in Iowa” by producers.

With just three months remaining before Proposition 12 takes effect Big Meat is rapidly running out of court options for salvation. The NPPC has filed for certiorari at the Supreme Court – but given the NAMI failure, it's hard to see that panning out.

Now Big Meat is hoping Congress will save its bacon. Lobby efforts have persuaded five U.S senators to try to kill Proposition 12 with its August 5th introduction of SB 2619, a measure “to prevent states and local jurisdictions from interfering with the production and distribution of agricultural products in interstate commerce, and for other purposes.”

The bill in part reads:

*Prohibition.--Consistent with the Commerce Clause of section 8 of Article I of the Constitution of the United States, the government of a State or a unit of local government within a State shall not impose a standard or condition on the production or manufacture of any agricultural products sold or offered for sale in interstate commerce if--

            (1) the production or manufacture occurs in another State;...”

In drafting the legislation, lawmakers can't get past the idea that Proposition 12 does not violate the Commerce Clause; after all, that has been the unanimous opinion of the courts. I would expect a robust challenge in the courts if the president signed SB 2619 into law.

So...here is what we are left with at the end of the day. Proposition 12 is more likely than not to go into effect on January 1, 2022 (another Hail Mary would require four-fifths of the California legislature to toss out Prop 12. Good luck with that.).

As a result, California residents will pay a little bit more for their pork to cover infrastructure costs associated with certification and inspection of both in-state and out-of-state facilities, as well as product labeling. And the dominant aspect of the Commerce Clause will get additional scrutiny. Lots of scrutiny.

For just a moment, imagine numerous agricultural products – cheese, eggs, veal, lamb, well you get the idea – are regulated by state legislators or voter initiatives similar to Prop 12. Taken to the extreme, that would make agricultural supply chains nearly impossible to manage. 

We're just getting started on the Prop 12 battle.

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.