SCOTUS hears crucial pork case on Prop 12

Prop 12 Supreme Court challenge focuses on whether California can impose moral interests under Commerce Clause.

Jacqui Fatka, Policy editor

October 11, 2022

5 Min Read

October 11 was a historic day for pork producers who finally had their day before the U.S. Supreme Court in their challenge of California’s Proposition 12. The National Pork Producers Council and American Farm Bureau Federation presented oral arguments on NPPC v. Ross before the U.S. Supreme Court challenging the constitutionality of California Proposition 12 and ban on crates for gestating hogs.

Terry Walters, president of the National Pork Producers Council, says it was fascinating to watch the two worlds of his farm in Minnesota and those in Washington, D.C., come together on an issue so significant to the hog industry. “California’s Proposition 12 threatens animal welfare, work safety, food affordability and producer livelihoods,” Walters says. “We’ve worked long and hard to be able to proudly tell the story of the U.S. pig farmer and other pig farmers in the adjoining countries to the Supreme Court.”

The pork industry argued before the Supreme Court justices that the Constitution’s dormant Commerce Clause does not allow states to enact laws that have a disproportionate economic impact on other states. Past Supreme Court cases have articulated a balancing test – the Pike test – by which judges attempt to weigh what is characterized as “putative local benefits” of the state law in question versus the potential financial harms visited on other states when such laws are enacted.

Another component of the challenge focused on the “extraterritoriality” doctrine, which prohibits state laws that effectively control out-of-state business practices. The lawyer defending the pork producers’ view told the justices that he believes that an extraterritorial rule affects commerce out of state, and it tramples the rights of the states in which the business is located. He explained the magnitude of California’s market also plays into its ability to force its will on all other states, whereas if this was a law in a smaller state it wouldn’t have the same impact.

“If Proposition 12 is lawful, New York can say that pigs have to have 26 feet of space and send inspectors into farms to please compliance as California does. Oregon can condition imports on workers being paid the minimum wage, and Texas can condition sales on the producer employing only lawful U.S. residents. And at that point, we have truly abandoned the framers’ idea of a national market,” the lawyer for the pork industry argues.

“We feel very hopeful after today’s arguments,” says Michael Formica, chief legal strategist for NPPC. He explains it was very hopeful to hear the justices understand the trouble that will be created by laws such as Proposition 12 that will reach far outside its state borders to try and impose moral will of one state towards in this case or any business or operation located entirely in other states.

Kitty Block, president and CEO of the Humane Society of the United States and lead group who pushed for Prop 12, says, “All the arguments lead to the conclusion that states may permissibly legislate for the health, safety and morals of their residents. When residents decide that they do not want cruel commodities sold in their state, no one should have the right to force them otherwise. These arguments are testaments to moral values as they have evolved in a culture; we are watching history being made.” 

Several justices discussed the impact of one state instituting its moral will on others, whereas some states’ moral views may differ. California’s moral view that pigs shouldn’t be kept this way can be matched in Iowa by a view that the most important thing about sows is producing protein and feeding people at a reasonable cost by raising sows by using pens.

Fornica adds that in Ohio for instance, it passed a constitutional amendment which allows a scientific board to make decisions on animal welfare. “What happens when Ohio convenes all of its experts, and they come up with a decision that they determined in the best way to raise animal in Ohio? Does California have the right to usurp the legislative and regulatory authority within the state of Ohio? I don’t think the Constitution allows it, and I think we heard from justices that they’re very troubled by that notion.”

Scott Hays, NPPC president-elect and pork producer from Missouri, says as he listened to the interactions between the justices and lawyers, he felt like they were really trying to understand and come up with a decision that’s best for all Americans. “And that’s going to be high quality, low cost, protein source for everyone, and not imposing one group’s opinion on the rest of us,” he says.

“Today’s arguments have implications not just for farmers and ranchers, but for businesses and consumers across the country,” says AFBF President Zippy Duvall. “At the heart of this argument is whether one state can set the rules for the entire country. Proposition 12 has the potential to put small hog farmers out of business by requiring costly renovations and forces them to adopt practices that farmers and their veterinarians may find harmful to their animals.”

HSUS believes they too made their counsel made their case clear on “why states have the right to keep immoral and unsafe products out of their markets.” Block says, “As we await the Court’s decision, we applaud the many retailers and major pork producers who are already meeting consumers’ increasing demand for safer, more humane pork.”  

Earlier this year, the National Cattlemen’s Beef Association filed an amicus brief before the court arguing that California’s mandates on livestock production methods violated the dormant Commerce Clause of the Constitution. Opening the door to state-level mandates creates a patchwork of rules that unreasonably restricts cattle producers’ ability to conduct business across state lines.

“While this case is not focused on cattle producers, the precedent set by the court will determine all producers’ ability to engage in interstate commerce,” says NCBA Vice President of Government Affairs Ethan Lane. “NCBA strongly supports economic freedom for all livestock producers to sell their high-quality protein from coast to coast, and we join NPPC in urging the Supreme Court to reject unconstitutional mandates on agricultural production.”

The justices are expected to issue their final decisions based on today's market by early 2023. 

About the Author(s)

Jacqui Fatka

Policy editor, Farm Futures

Jacqui Fatka grew up on a diversified livestock and grain farm in southwest Iowa and graduated from Iowa State University with a bachelor’s degree in journalism and mass communications, with a minor in agriculture education, in 2003. She’s been writing for agricultural audiences ever since. In college, she interned with Wallaces Farmer and cultivated her love of ag policy during an internship with the Iowa Pork Producers Association, working in Sen. Chuck Grassley’s Capitol Hill press office. In 2003, she started full time for Farm Progress companies’ state and regional publications as the e-content editor, and became Farm Futures’ policy editor in 2004. A few years later, she began covering grain and biofuels markets for the weekly newspaper Feedstuffs. As the current policy editor for Farm Progress, she covers the ongoing developments in ag policy, trade, regulations and court rulings. Fatka also serves as the interim executive secretary-treasurer for the North American Agricultural Journalists. She lives on a small acreage in central Ohio with her husband and three children.

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