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At Supreme Court, pork industry argues to rein in California’s Prop 12

California “wants to change farming methods everywhere” with an unconstitutional reach beyond its borders through its Proposition 12 animal-welfare law, a lawyer for the pork industry told the Supreme Court on Tuesday. The challenge to voter-approved Prop 12 asks the court to clarify how broadly or narrowly the Constitution allows states to regulate commerce.

The pork industry asked for a strict interpretation of the so-called dormant Commerce Clause, which prohibits state laws that discriminate against or excessively burden interstate trade. California, the most populous state in the nation, is dictating hog farming methods in other states — an over-reach that, if allowed to stand, opened the door to chaos in the marketplace, asserted lawyer Timothy Bishop. “New York can say that pigs have to have 26 feet of space … Texas can condition sales on the producer employing only lawful U.S. citizens.”

Solicitor General Michael Mongan of California said Prop 12 has only an incidental effect on farmers in other states, and they could choose not to do business in the state. “California voters chose to pay higher prices to serve their local interest in refusing to provide a market to products they viewed as morally objectionable and potentially unsafe,” he said. “Prop 12 is not protectionist or discriminatory.” Most of the pork sold in California is imported from other states.

Proposition 12 was enacted by a three-to-two margin in a statewide vote in 2018. It requires California farmers to allow more space for egg-laying hens, veal calves and breeding sows to move about and it bans the sale of meat or eggs produced on farms outside the state that do not meet California’s standards. The requirement for 24 square feet of space for each sow precludes the use of sow crates, which are common on hog farms and greatly limit a sow’s movements. Animal rights groups contend that the sow crates are inhumane. But farmers across the country would have to spend tens of millions of dollars to re-model their barns to comply with California’s standards and that cost will be passed along to consumers everywhere, says the pork industry.

During arguments that ran more than two hours, justices explored the limits of Bishop’s and Mongan’s positions of when “extraterritoriality” is permitted and how to balance a state’s interests in the health and safety of its citizens against the burdens that its laws impose outside its borders.

If monetary expense for a business overrides a state’s moral policies, said Justice Neil Gorsuch, the pork industry case is “an argument for protecting certain modes of production in other states,” notwithstanding the landslide vote in California, via Prop 12, against sow crates, veal calf stalls and battery cages for chickens.

Justice Samuel Alito posed the flip side of the question, asking Mongan, as the solicitor general of the most populous state, “You can wield this power … You can bully the other states and so you’re not worried about retaliation? Is that part of your position?” Mongan said he was concerned about the sovereign authority of states to regulate the products that are sold to its citizens.

“How many other (state) laws will fall?” Justice Amy Coney Barrett asked Bishop and U.S. Deputy Solicitor General Edwin Kneedler if extraterritoriality of the balancing test are strictly applied against Prop 12. “Are there other laws like this?”

“I don’t think so,” replied Kneedler. Bishop said Prop 12 was an outlier.

In January, a California state judge said the state could not enforce Prop 12, which took effect on Jan. 1, against food retailers until six months after the California Department of Food and Agriculture put its final version of regulations into effect. They appeared early last month, three years late.

Massachusetts state officials said in August they would wait for the Supreme Court ruling on Prop 12 before implementing Question 3, a voter-approved referendum that set similar rules on treatment of hogs.

Produced with FERN, non-profit reporting on food, agriculture, and environmental health.
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