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Piggybacking onto a Supreme Court case over hogs

With varying perspectives, the pharmaceutical industry, the Canadian Pork Council and New Jersey Sen. Cory Booker hope to influence the Supreme Court in deciding whether an animal welfare law approved by California voters is an unconstitutional burden on the rest of America. The pork industry and the Justice Department say it is.

Justices scheduled oral arguments on California’s Proposition 12 for Tuesday morning. A decision could be months away. The Humane Society of the United States says Prop 12 “is the strongest law in the world addressing farm animal confinement.”

An array of interests are trying, through four dozen friend-of-the-court briefs, to bend the court’s interpretation of the interstate commerce clause of the Constitution — the key question in the case — in their direction or to catch a ride on the winning side. Pharmaceutical companies, for example, said legislators increasingly have enacted laws that handicap marketing nationwide despite being avowedly limited to individual states, just as California says its law affects no one else.

“PhARMA is currently involved in litigation challenging two such laws, enacted by California and Oregon,” said the Pharmaceutical Research and Manufacturers of America in its “amicus curiae” brief. The states require advance notice of some price increases, which effectively freezes prices nationwide during the waiting period because federal law says prices must be the same in all states, said the trade group.

Passed by a 3-to-2 margin in a 2018 statewide referendum, Proposition 12 requires California farmers to give more room to sows and egg-laying hens. And it bars the sale of eggs and pork produced on farms outside the state that do not match California’s standards, which say each sow should have 24 square feet of space to move about. The requirement precludes the use of sow crates, which are common on hog farms and greatly limit a sow’s movements.

The pork industry says the Prop 12 carries a national impact: Hog farmers across the country will be forced to remodel their pig barns at a cost of hundreds of millions of dollars and consumers everywhere will pay for it in higher meat prices because it would be unduly expensive to produce pork exclusively for the California market.

Groups with a national or international market argued for uniformity in regulation, with an eye to their fields of operation.

“Proposition 12, if allowed to stand, may embolden other states to regulate beyond their borders, resulting in a complex web of inconsistent and competing extraterritorial regulations in the agriculture, food and other industries,” said the National Association of Manufacturers, joined by the National Cattlemen’s Beef Association and the National Federation of Independent Business. “Allowing states to impose their own policy preferences…will fracture national markets into regional and local affairs.”

“More broadly, if Proposition 12 stands, California and other states commanding large market shares will be able to impose their notions of sound public policy on the people of other states,” said the U.S. Chamber of Commerce. “States are limited to laws affecting the health, safety or welfare of their own citizens.”

The Canadian Pork Council, representing pork producers in Canada, joined by OPORMEX, a similar group in Mexico, and the Illinois Pork Producers Association, said the California law reached across national borders. “Canada is the third-largest pork exporter in the world and Canadian farmers export to the United States significant amounts of finished pork products and live hogs,” said the groups.

The hog industry is the bully, not the victim, said animal welfare groups in defending Proposition 12. “What petitioners are asking this court to do is to strike down a law democratically enacted by the most populous state with the largest economy in the Union to financially benefit a handful of giant food conglomerates — two of the largest of which are foreign-owned,” said five groups, including SPCA International. If the Supreme Court “scorns the clear will of California voters, it also imperils a wide range of other state laws expressing citizens’ and state legislatures’ political wills.”

Regulation of interstate commerce “is a decisively legislative matter,” and Congress is better equipped than courts to do the job, said Sen. Booker, a member of the Senate Judiciary and Agriculture committee. Challengers of Prop 12 were trying “to create a new constitutional privilege for their preferred methods of operation,” said the brief filed on his behalf.

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