California's Proposition 12 reaches a legalistic crescendo next week at the U.S. Supreme Court.

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Next week, California's Proposition 12 reaches a legalistic crescendo when the U.S. Supreme Court hears oral arguments on whether pig farmers and meatpackers wishing to do business in the Golden State must radically change their production methods.

California voters approved Prop 12 back in 2018. But it wasn't until last month that California finally got around to publishing the rules:

“No person shall knowingly engage in a commercial sale within the state of whole pork meat for human food if the whole pork meat is the product of a breeding pig, or the product of the immediate offspring of a breeding pig, that was confined at any time during the production cycle for said product in an enclosure that fails to comply with the following standards:

(1)   An enclosure shall allow the breeding pig to lie down, stand up, fully extend limbs, and turn around freely.

(2)   An enclosure shall provide a minimum of 24 square feet of usable floor space per breeding pig.”

If the rules applied only to California pork producers –  who account for less than 1 percent of all pork sold in the state – well c’est la vie. But that's not Prop 12's intent. Look again. “NO PERSON....” The bottom line is Prop 12 requires pork producers from sea to shining sea wishing to sell pork in California to give each sow 24 square feet of living space.

Naturally the National Pork Producers Council and the North American Meat Institute sued, saying in separate filings Prop 12 runs afoul of the extraterritorial principle of the U.S. Constitution’s Commerce Clause.  

That's a winning argument. But strange things can happen in court. In the NPPC lawsuit, United States District Court, Southern District of California judge Thomas J. Whelan ruled Prop 12 was legal because it treated in state and out-of-state pork producers the same:

“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...”

And with the cherry on the sundae Whelan went even further, infuriating pork producers by admitting Prop 12 could financially burden pork producers wishing to do business in California but “there is no burden on interstate commerce merely because it is less profitable than a preferred method of operation.”

On appeal, the NPPC added a few more bells and whistles to its arguments hoping the Ninth Circuit would overturn, including that Prop 12 was unconstitutional because it regulated prices in other states and that it had “an impermissible direct effect – increased space requirements – on how pork is produced and sold beyond California's border.”

None of that worked either. The Ninth Circuit ruled Prop 12 did not specifically dictate the price of pork. Nor was Prop 12 illegally extraterritorial because the law applied equally to in-state and out-of-state producers.

So now the Supreme Court will have its say. In its final reply to the supremes, the NPPC asserted the California Department of Agriculture's brief shows the state doesn't know which end of the pig squeals:

“Respondents ignore or contradict the complaint’s factual allegations that Proposition 12 will have significant extraterritorial effects.They ignore the intrusive on-farm inspection regime set forth in CDFA’s now-final regulations. And they assert that tracing and segregation will limit Proposition 12’s effects to the 13% of pork bound for California markets. But petitioners allege that all pigs will need to be raised in compliance with Proposition 12 because of the impracticability of segregating and tracing pigs and pork at every step of the production process at the necessary scale, because it is not known where a pig’s meat will eventually be sold, and because of the demands of retailers and distributors faced with the risk of criminal and civil sanctions.”

Could the nation's pork producers adhere to Prop 12 should they lose their case at the Supreme Court? Yes. They could. It's a point that Liz Cox, who oversees the California Department of Food and Ag Animal Care Program, made in July. Cox took a field trip to 10 sow farms in six states and concludes:

“Based on what I saw during my visits, and what farmers and other industry staff told me about their capacity to produce Prop12-compliant pork, I have a great deal of confidence that farmers and processors will be able to segregate Prop 12-compliant hogs and trace the corresponding pork meat to ensure Californians are able to enjoy compliant pork products.”

But compliance would cost the pork industry billions of dollars. 

Ultimately, though, that's a very unlikely outcome. The NPPC has oodles of case law on its side.  The Supreme Court probably doesn't have to go any further than their 1989 ruling in Healy v. Beer Institute, Inc. The court nullified a Connecticut law that required out-of-state shippers of beer to affirm posted prices for products sold to Connecticut at the moment of posting were no more than prices sold to consumers in boarding states:

“A State may not adopt legislation that has the practical effect of establishing a scale of prices for use in other states...”

Sound familiar to what's going on in Prop 12? And notwithstanding some of the rulings that have come out of the new conservative 6-3 high court this past term, the justices are very unlikely to turn the Commerce Clause on its head. 

For more reading on this topic, check out past columns:

November 2018: California Prop 12 could reshape nation’s commerce of eggs, veal and pork

August 2020:  Expect big meat and egg lobby to lose California Prop 12 appeal

November 2020:  Will California Prop 12 become a gold standard?

November 2021:  Big Meat’s Proposition 12 nightmare soon will be a reality

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.