Supreme Court upholds California Prop 12’s ban on ‘unethical’ pork, triggers far-reaching consequences

By Elizabeth Crawford

- Last updated on GMT

Source: Getty/Jupiterimages
Source: Getty/Jupiterimages

Related tags Pork Prop 12 Animal welfare

The US Supreme Court’s decision Thursday to uphold California’s ban of pork that does not meet its heightened animal welfare standards simultaneously is being hailed as a “watershed moment” by animal rights activists and condemned by producers and their political advocates as a death knell for small farms that will drive up already high prices.

The ruling​ rejected the National Pork Producers’ and the American Farm Bureau Federation’s argument that California’s Proposition 12 violates the US Constitution by “impermissibly burdening interstate commerce” by banning the in-state sale of pork from sows raised in cages too small for them to stand up, turn around and extend their limbs. They argued that because California imports almost all of the pork it consumes, the compliance costs would be unfairly borne by out-of-state firms and if let stand could encourage other states to set their own requirements – complicating compliance for interstate sales.

At the time of filing, they estimated converting the average hog barn from the industry standard of 18-25 square feet per sow to the 24 square feet required under Prop 12 would “require massive and costly changes” that Rabobank estimated would be upwards o $1,600 to $2,500 per sow or $3m to $4.5m total. They also argued Prop 12 “inescapably projects California’s policy choices into every other state, a number of which expressly permit their farmers to house sows in ways inconsistent with Proposition 12.”

The US Court of Appeals for the Ninth Circuit, however, dismissed the lawsuit because industry groups did not state a specific claim of damages – a decision that the Supreme Court upheld in this week’s splintered 5-4 ruling.

Nor did the groups suggest that Prop 12 discriminate purposefully against out-of-state economic interests, which might have elevated the case to a constitutional issue, wrote Justice Neil Gorsuch in the majority opinion that included Justices Clarence Thomas, Sonia Sotomayor, Elena Kagan and Amy Coney Barret.

“Instead,”​ Gorsuch wrote dismissively, “they invite us to fashion two new and more aggressive constitutional restrictions on the ability of states to regulate goods sold within their borders. We decline that invitation. While the constitution addresses many weighty issues, the type of pork chops California merchants may sell is not on that list.”

The court added that “companies that choose to sell products in various states must normally comply with the laws of those various states.”

Prop 12 is ‘an attack on … breakfast’ and ‘costly burden to producers’

The National Pork Producers Council and the North American Meat Institute both lamented the decision as bad for business and bad for consumers.

“We are very disappointed with the Supreme Court’s opinion,” ​NPPC president and Missouri pork producer Scott Hays said in a statement.

“Allowing state overreach will increase prices for consumers and drive small farms out of the business, leading to more consolidation,”​ he explained. He added that the group is still evaluating the implications of the Court’s full opinion, but he promised, “NPPC will continue to fight for our nation’s pork farmers and American families against misguided regulations.”

Julie Anna Pots, president and CEO of the North American Meat Institute echoed this sentiment, adding that Prop 12 “remains a costly burden to producers and provides no benefit to animals or consumers.”

Iowa Sen. Chuck Grassley went so far as to Tweet the decision “is an attack on your breakfast plate”​ that will lead to higher prices for bacon.

The decision also went against the wishes of the Biden administration, which argued Prop 12 “unduly restricts interstate commerce” – a decision that surprised some, but aligns with the administration’s push to break up consolidation in the meat segment following the pandemic, during which the fragility of highly concentrated supply chains was revealed.

Prop 12 ‘creates markets for America’s independent hog farmers’

Advocates on the other side of the issue celebrated the decision as a victory for animal welfare, human health and business in that they say it gives independent farmers leverage against the four meatpackers dominating the space.

“We’re delighted that the Supreme Court has upheld California Proposition 12 – the nation’s strongest farm animal welfare law – and made clear that preventing animal cruelty and protecting public health are core functions of our state governments,”​ Kitty Block, president and CEO of the Humane Society of the United States, noted in a written statement.

She explained in an accompanying blog post that the court’s decision “gives the judicial ‘green light’ for further progress to be made on behalf of animals currently suffering from extreme confinement,” which is an issue that she says resonates with most American voters.

She also pointed to an amicus brief supporting Prop 12 by the American Public Health Association, Infectious Diseases Society of America and Center for Food Safety that argued extreme confinement of sows “poses a profound danger to food safety and public health”​ because it supresses the immune systems of the animals, making them more susceptible to diseases that could spread to humans.

“Important laws like Prop 12 mitigate those risks,”​ the Center for Food Safety added in a statement lauding the decision “as a major victory for animal welfare and a more regenerative, healthful and humane future of our food.”

Farm Action president and Missouri hog farmer added that the court’s decision “preserves states’ rights to protect the interests of their own citizens, and creates markets for America’s independent hog farmers” who want to meet the new space requirements.

Food & Water Watch legal director Tarah Heinzen agreed the decision is “critical victory for the rights of states that seek to do better on those issues than some of their neighbors, or the country at large.”

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