The Lindy effect is a statistical tendency suggesting the older a non-perishable item is, the longer it’s likely to be around in the future. The longer something’s been around the longer it’ll be around. Check!
Which suggests a corollary. If it ain’t around, it can’t stay around. Right?
Well, Big Meat has spent the last six years in court trying to prevent California’s Proposition 12 from taking effect.
Prop 12, passed by California voters in 2018, created new regulations on animal housing, including making it illegal to confine a breeding pig with less than 24 square feet of usable floor space. The law applied equally to both in state and out-of-state pork producers.
Big Meat took its case all the way to the highest court in the land. And lost. In May 2023, the U.S. Supreme Court green-lighted larger digs for pigs sold in the Golden State.
And since Jan. 1, California residents have feasted on pork birthed by a sow housed in 24 square feet of living space.
Big Meat is furious out of their ever-loving minds. But built into Big Meat’s collective DNA is also the attitude “it ain’t over till WE say it’s over.”
Needing some Lindy-like speed, Big Meat has put most all their eggs into trying to torpedo Massachusetts’ Question 3, which like Proposition 12, has sow confinement requirements for out-of-state producers wanting to sell pork meat in Massachusetts.
Question 3 makes it illegal “for a farm owner or operator within the Commonwealth of Massachusetts to knowingly cause any covered animal to be confined in a cruel manner,” defined as confining a “breeding pig in a manner that prevents the animal from lying down, standing up, fully extending the animal’s limbs or turning around freely.”
Because Question 3 and Proposition 12 are similar, Big Meat reasonably believes if it can win Triumph Foods, LLC v. Campbell, it can expeditiously rid itself of Prop 12.
So Big Meat must have been giddy when Judge William Young of the U.S. District Court for the District of Massachusetts released an opinion in the case earlier this month.
But Young didn’t toss out Question 3. Oh no.
First a little background. A major reason that Prop 12 survived Supreme Court review is that it did not run afoul of the dormant Commerce Clause.
In National Pork Producers Council v. Ross, the pork council alleged Prop 12 amounted to state interference in interstate trade because it imposed a financial burden on out-of-state companies that produce nearly all pork sold in California.
But Prop 12 also requires California pork producers to comply. Writing for the majority Supreme Court, Justice Neil Gorsuch writes that NPPC’s “almost ‘per se’ rule against laws that have the ‘practical effect’ of ‘controlling’ extraterritorial commerce would cast a shadow over laws long understood to represent valid exercises of the States’ constitutionally reserved powers. It would provide neither courts nor litigants with meaningful guidance in how to resolve disputes over them. Instead, it would invite endless litigation and inconsistent results.”
Gorsuch suggested it wasn’t the high court’s job to create new laws for the NPPC, and, if they needed one, to call their Congressional representatives.
But Big Meat if not anything else is persistent, and it hoped a dormant Commerce Clause argument would find a more favorable outcome in Massachusetts.
That’s because Question 3 allows Massachusetts pork facilities inspected under the Federal Meat Inspection Act to legally sell non-compliant pork on the premises of its facilities. Yup. Massachusetts FMIA inspected facilities can package and sell non-compliant pork to stores, schools, hospitals, you name it. Legally.
Those non-compliant pork sales only run afoul of Question 3 if they are resold off FMIA pork inspected facility premises.
The rule effectively shuts out any pork processor without a facility in the state of Massachusetts. Including Triumph Foods, which says the scheme is illegal under the dormant Commerce Clause because it treats in-state and out-of-state pork producers differently.
The hope was that Young would invalidate Question 3 and perhaps give Big Meat some new arguments against Prop 12.
But Young didn’t rule Question 3 illegal. Instead Young severed the exemption from the act. And Young further granted “the Pork Producers 30 days from the date hereof to move for summary judgment on the ground that the Act — with the slaughterhouse exemption severed — is now preempted by the FMIA.”
I suspect in all likelihood Young will hear oral arguments. Triumph Foods has raised a boat load of issues:
“The Act’s discriminatory purpose and effect further violates the rights of Plaintiffs under the Privileges and Immunities Clause, the Full Faith and Credit Clause of Article IV of the United States Constitution, the Due Process Clause of the Fourteenth Amendment to the Constitution, and the Import-Export Clause of Article I of the United States Constitution…The Act is also preempted by the Federal Meat Inspection Act and the Packers and Stockyards Act.”
If Big Meat wins Question 3 it probably quickly moves against Prop 12 on the same arguments.
Yeah, it ain’t over.
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