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Desperate times often require desperate measures. That's the position Big-Meat finds itself in – desperately trying to kill California's Proposition 12. See here, here, here and here.

Proposition 12 was approved by California voters in 2018. Among its stipulations a requirement that pork sold in the state comes from breeding pigs are given at least 24 square feet of living space to move around freely. The law applies equally to California pig farmers as well as producers outside state lines wishing to sell pork in California.

Most sows in the U.S. are housed in much, much, MUCH, smaller spaces.

Needless to say Big-Meat squealed. The National Pork Producers Council has told anyone who would listen – including U.S. district and appellate courts – that Proposition 12 runs afoul of the Constitution's Commerce Clause. At its core the Commerce Clause limits the ability of states to regulate commerce outside its borders and empowers Congress the power to regulate trade.

But the NPPC, as well as the North American Meat Institute, have lost case after case. Most recently the U.S. Court of Appeals for the Ninth Circuit rejected NPPC arguments that Proposition 12 wrongly requires Big-Meat to drastically change how it does business in order to serve California consumers.

In the case NPPC v. Roth Judge Sandra S. Ikuta wadded up that assertion and tossed it in the nearest trash can:

“State laws that regulate only conduct in the state, including the sale of products in the state, do not have impermissible extraterritorial effects.”

The Ninth Circuit ruled under its precedent Prop 12 does not run afoul of the dormant Commerce Clause. The court reasoned that Prop 12 was not impermissibly extraterritorial because the law applied equally to in-state and out-of-state producers and that the NPPC's alleged cost increases to pork producers and potentially consumers did not qualify as a substantial burden to interstate commerce. But that interpretation of the Commerce Clause isn't held widely by other appellate courts.

This isn't Big-Meat's first rodeo in trying to get the Supreme Court to take up the case. In North American Meat Institute v. Becerra the district court denied plaintiff's motion for a preliminary injunction on Prop 12, the Ninth Circuit affirmed, and the Supreme Court denied to take up the case.

In most particulars American Meat Institute v. Becerra and NPPC v. Roth make the same claims, begging the question of exactly why the Supreme Court granted the NPPC Petition for a writ of Certiorari on March 28.

NPPC's petition claims the Ninth Circuit “brushed aside this Court’s decisions holding that laws with significant extraterritorial effects violate our federalist scheme, and failed to engage in meaningful balancing under Pike v. Bruce Church, Inc.” which ruled even if a law does not discriminate on its face against interstate commerce, it is not permissible if the burdens greatly exceed the benefits to local commerce.

But interestingly in a brief asking the Supreme Court to reject the NPPC petition California attorney general Rob Bonta argued:

“The Court has cautioned, however, against application of its “Commerce Clause decisions [to] prohibit the States from exercising their lawful sovereign powers in our federal system. In particular, the Court has recognized that a regulation of in-state conduct does not become “impermissibl[y] extraterritorial” merely because it produces “effects” beyond a State’s borders. In light of that principle, lower courts have consistently rejected extraterritoriality challenges to state “standards for products sold in-state (standards concerning, for example, quality, labeling, health, or safety)”—including where such standards have “ripple effects . . . both in-state and elsewhere.””

And there lies the rub. In its petition the NPPC stated “Almost no sow farmers in the country satisfy Proposition 12’s sow housing requirements, and most believe that those requirements would harm their animals, employees and operations.”

The NPPC claims while California residents consume 13 percent of the nation's pork production the state raises few pigs of its own (0.133% ): “The massive costs of complying with Proposition 12 fall almost exclusively on out-of-state farmers.”

Let me translate. Big-Meat by and large doesn't want to pony up the money it would take to satisfy the requirements of Proposition 12.

But Bonta begs to differ:

"Indeed, a number of pork producers and suppliers have publicly announced that they have taken steps to ensure that their products will continue to be sold lawfully in California when Proposition 12’s last remaining restrictions take effect on January 1, 2022. The CEO of Tyson Foods, for example, recently assured its shareholders that the company will not have difficulty “align[ing] suppliers” to produce Proposition 12-compliant pork and pork for other States “simultaneously.” Hormel Foods has similarly pledged to “continue to meet the needs of [its] consumers and customers throughout the state [of California]” without facing any “risk of material losses” from Proposition 12. And other producers have reported that they are already “fully compliant with California’s Proposition 12.””

The NPPC makes another dubious claim:

It is infeasible to selectively house sows in compliance with Proposition 12 only when the pork from their offspring will be sold in California. Because it is impracticable, in the complex, multi-stage pork production process, to trace a single cut of pork back to a particular sow housed in a particular manner from six months of age on, buyers of market hogs everywhere will demand that farmers selling those hogs trace their origins to Proposition 12-compliant sow farms.”

If that is what it believes the NPPC needs to wake up and smell the coffee. Because California is not alone in demanding how hogs are raised. Through Restaurant Brands International Burger King is committed to rejecting pork from pregnant sows housed in gestation crates this year. A lively debate over gestation crates is also ongoing at McDonald's. And Safeway Inc. says it will only sell pork coming from farms that do not use gestation crates.

The rubber hitting the road truth is that Big-Meat will need to adjust to changing consumer preferences. And that will include new traceability and processing procedures to satisfy demand iregardless of how the Supreme Court comes down on NPPC v. Roth.

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 Investigate Midwest covers agriculture and related issues including politics, government, environment and labor. His opinions are his own and do not reflect Investigate Midwest. Email him at dave.dickey@investigatemidwest.org.